BRYAN LEE STEELE,                                  )
                                                   )
               Petitioner/Respondent,              )
                                                   )
        vs.                                        )       No. SD32326
                                                   )       Filed: March 11, 2014
JUDY ANN STEELE,                                   )
                                                   )
               Respondent/Appellant.               )


               APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY

                         Honorable D. Gregory Warren, Circuit Judge

AFFIRMED.

        Judy Ann Steele (“Wife”) appeals from the trial court’s “Judgment and Decree of

Dissolution of Marriage” (“Judgment”) dissolving her marriage to Bryan Lee Steele

(“Husband”). Wife submits two challenges: first that the trial court erred in awarding Wife only

10% of Husband’s military retirement, and second, in deducting 3% from Wife’s portion of

Husband’s military retirement due to Wife’s marital misconduct. We affirm the Judgment of the

trial court.
                                Factual and Procedural Background

        The parties were married on August 27, 1996, in El Paso, Texas. The parties separated

April 21, 2010; however, the parties had separated numerous times before that date. There were

no children born of the marriage, but Wife had two children from prior relationships.1

        At the time of their marriage, both parties were in the military. Wife exited the military

approximately two weeks before the marriage, but remained in the “inactive reserves.” Wife

re-entered the military on active duty in 2004.

        On July 8, 2010, Husband filed a “Petition for Dissolution of Marriage” wherein he

requested the “marital property and debts be equitably divided” and each party be given his or

her “separate property and debts.”

        On February 25, 2011, Wife filed an “Amended Cross-Petition for Dissolution of

Marriage” and requested the court “make a just division of the marital property and indebtedness

of the parties[.]”

        On February 27, 2012, a hearing was held.                  Husband testified that the parties had

“periods of separation” during the marriage separating a “[m]inimum of a half a dozen, maybe

more” before the final April 21, 2010 separation, and that the marriage was “irretrievably

broken.”

        Husband stated that the parties owned certain items of personal property, had no real

estate, and each had the capability of earning income sufficient to support themselves so neither

party should receive maintenance.

        Husband testified that in September 2010, he retired from the United States Army with

the rank of “E9 service R Major,” after serving 25 years, 14 of which while married to Wife.

1
  Husband legally adopted Wife’s son, but he was emancipated at the time of trial. Husband’s name was placed on
the daughter’s birth certificate at Wife’s request so they all would have the same last name. A paternity test done
after the divorce was filed legally determined Husband was not the natural father of daughter.

                                                        2
Following his retirement, Husband began receiving non-disability retirement pay.            He also

received income from Serco, a government contracting company he began working for in

February 2011. According to his “Income and [E]xpense Statement” presented to the trial court,

Husband had a total gross monthly income of $5,083: $3,401 received as retirement income

from the military, along with his salary from Serco.

       Wife was serving in the United States Army, with a rank of “03E Captain,” and had

served seven years while married to Husband. At the time of trial, Wife was stationed in

Germany. Wife grossed approximately $10,000 per month. In light of her military service, Wife

had a military retirement account that would not vest until she reached twenty years of service.

The trial court determined Wife had “5 years to go until [her benefits] vested.” It was Husband’s

request to keep all of his military retirement and Wife to keep all of her military retirement as the

parties had each “earned” their separate retirements. Husband based that request on the fact that

according to Husband’s division of property and debt, Wife would end up owing him cash

money so he was requesting the trial court offset that by awarding him his entire retirement

pension and allowing Wife to keep her entire retirement pension.

       Husband testified that at the time of separation, the parties owned real estate—the marital

home—in Waynesville, Missouri, which was purchased for $275,000.               After Wife became

stationed in Germany in April 2010, and until the house sold in May 2011, Husband testified he

paid $2,150 per month for the mortgage payment and all utilities. At that time, his sole income

was the $3,401 he received monthly from his military retirement as he did not start working for

Serco until February 2011.      Although Wife was grossing $10,000 per month, she did not

contribute to the mortgage payment and Husband was paying 66% of the marital debt. Husband

also paid approximately $4,000 towards Wife’s student loans during this time. The only money



                                                 3
Wife sent Husband to help with the marital bills was a total sum of $900 for the months of

October, November, and December 2010, but only because she was ordered to “by her chain of

command.”

        Wife would not agree to sell the house unless Husband agreed to be solely responsible for

any deficiency on the sale and sign an affidavit agreeing he would pay the entire deficiency if

there was one. Husband did sell the home, with a deficiency of $10,399, which Husband paid in

its entirety.2 Husband testified that during the marriage, the parties operated their finances

separately by having separate accounts and all the house payments were made from his account

with no contribution from Wife.

        Husband testified the couple planned to live in Germany upon Wife’s deployment in

April 2010, and he was to join Wife there full time after he retired in September 2010. Upon

arrival in Germany, Husband and Wife secured government quarters and picked up vehicles and

household goods,3 which had been shipped from the United States. Once this was accomplished,

Wife informed Husband he could not live with her and would have to find his own apartment as

she did not love him anymore.            Husband had to return to the United States to “complete

separation procedures with the military.” However, Husband made arrangements to return to

Germany in June 2010 on a sixty-day leave in hopes of reconciling with Wife, but prior to his

departure, Wife told him he could not stay with her during that two months. Financially unable

to live in a motel for two months, Husband cancelled the trip and made no further attempt to

return to Germany.



2
  Husband did receive $2,857.64 from the sale of the house, which represented reimbursement for homeowner’s
insurance and the escrow account. Wife willingly signed over those proceeds to Husband.
3
 At that time, 80% of their possessions were placed in storage in the United States under Wife’s military orders
(with her having the only access), 15% was shipped to Germany, and 5% was stored in the United States under
Husband’s military orders.

                                                       4
       Upon his return to the United States, Husband continued to live in the marital home until

it sold. When Husband moved, the only property he had was an air mattress to sleep on and

clothing. He had to completely refurnish the residence he moved into after the sale because Wife

refused to give him access to the marital property in her military storage unit in the United

States. Husband asked Wife to ship some of his personal items back from Germany, but she

refused to do so unless he paid for the shipping cost.

       Husband testified he was asking the trial court to award him his personal property (some

in storage with Wife in Germany) and that Wife could have any other marital property in storage,

as well as any other property she had with her in Germany.

       On cross-examination, Husband denied that Wife ended her military career in order to

support his when the parties were married.           He testified his military career “was doing

successfully very well at that time.” Due to continuous marital strife, Husband testified there

were times Wife “was unsupportive”; that Wife “jeopardized me as much as she supported it.”

       Wife testified she ended her military career sixteen days before marrying Husband. She

became a “family readiness group leader” at several of the army posts where Husband was

stationed as support for Husband. She was “volunteer of the year” in 2003. Wife believed

Husband would not have made the rank of “E9” without her support.

       On cross-examination, Wife admitted that even though she grossed $10,000 per month,

she did not help Husband with the mortgage payments or the deficiency on the sale of the house.

She testified she paid $3,000 a month for a 3-bedroom home in Germany, which was a private

residence or “off-post quarters.”     When she first arrived in Germany, she was living in

government quarters but then chose to move to her current home. She petitioned to live off post

because she had three large dogs and it was difficult with the dogs living on the third floor of the



                                                 5
apartment building, and she only had one bathroom. She admitted most of the parties’ personal

property was in storage in Missouri under her military orders, she did not let Husband remove

any of the items in storage to furnish his new home, and that everything was packed up when she

left for Germany because Husband was to move with her to Germany. She admitted that the

parties’ marriage was “somewhat volatile” over the “course of the entire marriage.”

        Neither party presented expert testimony regarding the value of their respective military

retirement plans, nor did the parties request the trial court value the military retirement plans.

        At the close of the evidence, the trial court granted the dissolution of the parties. The

trial court found that both parties could support themselves adequately and no maintenance was

awarded. However, the trial court took under advisement the division of property and advised

the parties that he would “send a decision to your attorneys as soon as possible.”

        On June 5, 2012, the trial court sent the parties a letter with its decision.4 With respect to

the military retirement benefits of the parties, the trial court determined the benefits “will be of

comparable value when vested” and noted Wife had “5 years of non-marital benefits and 5 years

to go until vested.” The trial court then concluded in its letter:

        Therefore, Marital portion from 1996 to Separation, 2010, is 14 years/25 for
        [Husband’s] retirement and 6/20 for [Wife]. Using the standard formula,
        .56/2=28% for [Wife] and 30/2=15% for [Husband]. Court is offsetting the two
        and finding 13% is the presumed retirement to be awarded to [Wife]. However,
        because of no offset in [Personal Property award] and [Wife’s] misconduct . . . ,
        Court reduces and awards [Wife] 10% of [Husband’s] military retirement,
        beginning March 1, 2012. [Wife] keeps all her retirement. . . .

(We have shown the text from the trial court’s letter as written.)

        Two months after sending the letter, the trial court entered its Judgment on August 6,

2012.    The Judgment provided that the parties’ marriage was a “volatile, argument filled

4
  This letter was not a Judgment and specifically noted the trial court could amend or alter any decision until the
final Judgment was signed. In conclusion, the trial court requested that counsel prepare and approve the final
Judgment for the trial court’s signature.

                                                        6
marriage with many separations totaling at least 4 years of the 14 year marriage and [found]

equal misconduct as to these factors.” However, the trial court found

       additional financial misconduct by [Wife], especially the last two years, in
       denying [Husband] furniture to live with . . . , not assisting in marital debts for
       which she was equally liable and in demanding [Husband] be solely responsible
       for the loss on the sale of real estate. [Wife] also committed misconduct in letting
       [Husband] believe he would be living with her in Germany, and then refusing
       when she moved to her apartment.

       The trial court also made a division of non-marital and marital property. Both Husband

and Wife were awarded “Military Retirement” as part of their marital property award. The

division of property and debts resulted in “Credit/Debit Needed To Equalize Equities” of

$32,372.49 because Wife’s “Net Marital Equity” was $104,497 (after reduction to her total

marital property of $30,500 for marital debt awarded to Wife).

       Despite finding a “Credit/Debit Needed to Equalize Equities,” the trial court did not

award an offset to the division of property because of “other findings and orders set out in th[e]

Judgment.” The trial court went on to award Wife “her separate military retirement” and “10%

of [Husband]’s non-disability retirement.” Consistent with the June 5 letter, the trial court’s

Judgment “offset from the standard formula given that no offset was provided for in the division

of personal property and [Wife]’s misconduct as set out in paragraph 9 [of the Judgment].” This

appeal followed.

       Wife claims two points of error. First, Wife claims the trial court erred in “offsetting” the

parties’ military retirement benefits resulting in the trial court’s award to Wife of 10% of

Husband’s military retirement benefits because the award was “inequitable, against the weight of

the evidence and based upon an erroneous application of the law[.]” Second, Wife claims the




                                                7
trial court erred in deducting 3% of the 13% awarded to Wife of Husband’s total military

retirement based on Wife’s marital misconduct.5

         The issues for our determination are:

         1.       Whether the trial court’s award concerning the military retirement benefits was
                  supported by substantial evidence, was not against the weight of the evidence, and
                  was not based on an erroneous declaration or application of the law.

         2.       Whether the trial court abused its discretion in reducing Wife’s award of marital
                  property based on her financial marital misconduct.

                              Point I: Offset of Military Retirement Benefits

                                               Standard of Review

         In a dissolution case, this Court will affirm the trial court’s decision unless it is not

supported by substantial evidence, it is against the weight of the evidence, or it erroneously

declares or applies the law. Jennings v. Jennings, 327 S.W.3d 21, 23 (Mo.App. E.D. 2010). “In

assessing the sufficiency of the evidence, we examine the evidence and the reasonable inferences

derived therefrom in the light most favorable to the judgment.” In re Marriage of Cornella, 335

S.W.3d 545, 548 (Mo.App. S.D. 2011). It is not our function to retry this case. Id.

         With respect to a trial court’s ruling regarding property,

         [a] trial court is given broad discretion in dividing property in a dissolution action,
         and we will interfere with its decision only if the division is so unduly weighted in
         favor of one party that it amounts to an abuse of discretion. The trial court abuses
         its discretion only when its ruling is ‘clearly against the logic of the circumstances
         and is so arbitrary and unreasonable as to shock one’s sense of justice and indicate
         a lack of careful consideration.’

Souci v. Souci, 284 S.W.3d 749, 754 (Mo.App. S.D. 2009) (quoting In re Marriage of Holden,

81 S.W.3d 217, 225 (Mo.App. S.D. 2002)) (internal citation omitted). “The division of property

is presumed to be correct, and the party challenging the division bears the burden of overcoming

5
 The Judgment did not reflect the specific calculation the trial court used to determine the percentage of retirement
awarded to Wife. Rather, this calculation is contained in the trial court’s June 15, 2012 letter to the parties, and is a
basis for Wife’s claimed error.

                                                            8
the presumption.” Souci, 284 S.W.3d at 755 (internal quotation and citation omitted). “It is not

per se an abuse of discretion if the trial court awards one party a considerably higher percentage

of the marital property than it awarded the other party.” Workman v. Workman, 293 S.W.3d 89,

96 (Mo.App. E.D. 2009).

                                                       Analysis

           On appeal, Wife contends the trial court erred in “offsetting” the parties’ military

retirement benefits in reaching an award of 10% of Husband’s military retirement benefits to

Wife. Wife claims this was error because Wife’s military retirement benefits have not yet vested

and Wife may never receive benefits from her retirement account, but Husband’s benefits have

vested and he is receiving “significant income from his retirement benefits.” Wife further claims

error in the trial court’s failure to value the retirement benefits and dividing the retirements based

on percentages “without considering the status of the benefits of the parties.”

           Section 452.330.16 provides “[i]n a proceeding for dissolution of the marriage . . . the

court . . . shall divide the marital property and marital debts in such proportions as the court

deems just after considering all relevant factors[.]” A trial court has “broad discretion” in

dividing property in a dissolution proceeding, and the ‘“division of marital property need not be

equal, but must only be fair and equitable given the circumstances of the case.”’ Souci, 284

S.W.3d at 755 (quoting Nelson v. Nelson, 25 S.W.3d 511, 517 (Mo.App. W.D. 2000)). When

dividing the marital property, per section 452.330.1, the trial court must consider all the relevant

factors including: (1) “[t]he economic circumstances of each spouse at the time the division of

property is to become effective . . . ”; (2) how each spouse contributed “to the acquisition of the

marital property, including the contribution of a spouse as homemaker”; (3) “[t]he value of the

nonmarital property set apart to each spouse”; and (4) the conduct of each spouse during the
6
    All references to statutes are to RSMo 2000, unless otherwise indicated.

                                                            9
marriage. § 452.330.1. “Those factors listed in section 452.330.1 are not exhaustive, and the

trial court has ‘great flexibility and far-reaching power in dividing the marital property.’” Long

v. Long, 135 S.W.3d 538, 542 (Mo.App. S.D. 2004) (quoting Farley v. Farley, 51 S.W.3d 159,

165 (Mo.App. S.D. 2001)).

       Non-disability retirement plans earned during marriage are marital property subject to

division. In re Marriage of Irions, 988 S.W.2d 62, 66 (Mo.App. S.D. 1999). The fact a pension

has not yet vested or matured does not deprive it of its character as marital property. In re

Marriage of Ward, 955 S.W.2d 17, 20 (Mo.App. S.D. 1997). Here, the trial court set out the

division of non-marital property, marital property, and debts in Exhibit A attached to the

Judgment. Both Husband and Wife were awarded “Military Retirement” as part of their marital

property award. However, the specific military retirement is not designated and under “value”

for the military retirements, the trial court placed an “X” for both awards. A summary of the

total value of property and debt awarded to the parties is as follows:

       RECAPITULATION OF PROPERTY AND DEBT:

       [Husband]’s Total Marital Property                                  $ 39,752.01
       [Husband]’s Total Marital Debt                                      $     [0.00]
       [Husband]’s Net Marital Equity                                      $ 39,752.01

       Credit/Debit Needed to Equalize Equities                            + 32,372.49
       [Husband]’s Net Marital Assets (assuming equalization)              $ 72,124.50

       [Wife]’s Total Marital Property                                     $134,997.00
       [Wife]’s Total Marital Debt                                         $ 30,500.00
       [Wife]’s Net Marital Equity                                         $104,497.00

       Credit/Debit Needed to Equalize Equities                            $-32,372.49
       [Wife]’s Net Marital Assets (assuming equalization)                 $ 72,124.51

       Despite finding a “Credit/Debit Needed to Equalize Equities,” the trial court did not

award an offset as to the division of property set out in Exhibit A because of “other findings and



                                                10
orders set out in th[e] Judgment.” Rather, the trial court applied the offset when detailing the

award to Wife of Husband’s non-disability retirement, which is marital property.7 The trial court

awarded Wife “her separate military retirement” and “10% of [Husband’s] non-disability

retirement[,]” and specifically noted the military retirement benefits award was “offset from the

standard formula given that no offset was provided for in the division of personal property and

[Wife]’s misconduct as set out in paragraph 9 [of the Judgment].”8

         The “standard formula” mentioned by the trial court in its Judgment is also mentioned by

the trial court in its June 5, 2012 letter to the attorneys setting forth its decision in the case.9 In

the letter, the trial court wrote:

         Each party has military retirement benefits which will be of comparable value
         when vested. However, [Wife] has 5 years of non-marital benefits and 5 years to
         go until vested. Therefore, Marital portion from 1996 to Separation, 2010, is 14
         years/25 for [Husband]’s retirement and 6/20 for [Wife]. Using the standard
         formula, .56/2=28% for [Wife] and 30/2=15% for [Husband]. Court is offsetting
         the two and finding 13% is the presumed retirement to be awarded to [Wife].
         However, because of no offset in [Personal Property award] and [Wife’s]
         misconduct . . . , Court reduces and awards [Wife] 10% of [Husband’s] military
         retirement, beginning March 1, 2012. [Wife] keeps all her retirement. . . .

(We have also shown this text from the trial court’s letter as written.)

         Based on the record before this Court, the trial court used the “standard formula” for

determining the division of military retirement benefits as found in Ward, 955 S.W.2d. at 17

(citing Lynch v. Lynch, 665 S.W.2d 20 (Mo.App. E.D. 1983)). In Ward, the formula was

7
  “The offset or immediate offset method of distributing the pension plan is when the court awards one party all of
the pension benefits, offset by other marital property awarded to the remaining spouse.” In re Marriage of Cope,
805 S.W.2d 303, 305 n.1 (Mo.App. S.D. 1991).
8
  The trial court found financial misconduct by Wife in denying Husband furniture to live with, not assisting in
payment of marital debts, in demanding Husband be solely responsible for the loss on the sale of real estate, and in
letting Husband believe he would be living with her in Germany and then refusing when she moved to her
apartment. Wife also claims error in the reduction of her benefits based on financial misconduct. This claimed error
is addressed in Point II below.
9
  In this letter, the trial court “reserve[d] the right to amend or alter any part hereof until the final Judgment is
signed.” The Judgment was signed by the trial court on August 6, 2012.

                                                         11
applied to determine what portion of the retirement constitutes marital property subject to

division and ensure a spouse would not share in the post-dissolution accumulation of benefits.

Id. at 20-22. Here, the trial court did the same and determined under the “standard formula” that

Wife was entitled to 28% and Husband 15% from their respective benefits.

        The trial court in this case then departed from the percentages from the formula for two

reasons: (1) the trial court found the military retirement benefits would be of comparable value

when vested, so offset the two finding the presumed award to Wife was 13% of Husband’s, and

her separate military retirement in full; (2) the trial court further reduced Wife’s award to 10%

because (a) a credit of $32,372.49 to Husband was needed to equalize equities following the

division of property in Exhibit A, which was not yet done in the division of property; and

(b) Wife’s financial misconduct identified in the Judgment.

        We do not find the trial court’s departure from the formula to be error. As we noted in

Ward, this formula is not the exclusive method of determining a property division award.

Rather, it is simply one method by which a trial court can determine the marital portion of

retirement plans which are non-vested or non-matured at the time of dissolution. Id. at 21. Wife

fails to point this Court to any authority requiring a trial court to divide military retirement

benefits according to a particular formula or standard. Our research has led us to quite the

opposite conclusion in that we find “it is not mandatory that pension benefits be divided between

spouses . . . where other assets are available.”10 Kutcha v. Kutcha, 636 S.W.2d 663, 666 (Mo.

banc 1982).       Oftentimes speculative questions are presented to a trial court in a divorce

proceeding, especially in the division of marital property, including retirement benefits. As the

Supreme Court of Missouri noted, these questions “do not lend themselves to rigid and fixed


10
  It is also clear an “offset” or “immediate offset” method of distributing pension plans is permissible. See Cope,
805 S.W.2d at 305 n.1.

                                                        12
rules.” Id. at 665. For this reason, “it is imperative that trial courts be authorized to apply a

flexible approach to accommodate the particular facts of each case[]” because the desired

outcome of any dissolution proceeding is “a full and final division of marital property without

contingencies.” Id. at 665-66.

        Wife claims error because “[n]owhere in the [J]udgment did the court consider the

relative values of Wife’s military retirement account and Husband’s military retirement

account.” However, the trial court specifically noted the parties’ military retirement benefits

“will be of comparable value when vested” in its letter to the parties. “When no express finding

of fact is made on an issue, we consider the issue to have been resolved in accordance with the

result.” Holden, 81 S.W.3d at 226-27. In light of the trial court’s earlier finding that the benefits

would be of comparable value, we consider the Judgment to have been resolved in accordance

with that finding.

        Wife further argues there “was no evidence to support a finding that Wife’s retirement

account has any current value[,] . . . has . . . vested or is being paid to her[,] . . . [so] there is no

basis upon which to find that Wife’s retirement should be valued in the same manner as

Husband’s retirement[.]” We first note Wife does not cite us to any part of the record showing

she requested the trial court make a finding on the value of either retirement plan, and we have

found no such request. “Unless a request is made, the trial court is not required to make specific

findings as to the value of items of marital property.” In re Marriage of Rippee, 862 S.W.2d

493, 494 (Mo.App. S.D. 1993).

        Furthermore, we note Wife presented exhibits to the trial court, specifically Exhibits C

and D, containing calculations of Husband’s retirement pay and Wife’s estimated retirement pay.

Wife presented to the trial court her estimated retirement pay “[b]ased on Amount an O-3 E Over



                                                   13
20 Gets in 2013.” According to these exhibits, Wife also proposed the same percentages to each

spouse that the trial court came up with using the “standard formula”; i.e., 28% to Wife and 15%

to Husband. In light of these exhibits, along with the lack of a request that the trial court make a

finding on the value of the retirement plans, we disagree with Wife’s claim there was no basis to

value Wife’s retirement. Rather, the trial court properly considered the non-disability retirement

benefits of both parties as marital property, and properly considered the non-vesting nature of

Wife’s retirement benefits at the time of trial.

        Wife does not dispute both parties’ military benefits may be considered marital property.

She claims error, however, in the fact the trial court “offset” the plans against each other.11 Wife

further argues because her retirement benefits have not vested, the value of her benefits remain

“unknown.” Wife further cites the formula found in Ward in support of this argument. While

Ward is instructive, it is also distinguishable in that the issue in Ward was the designation of

entire benefits as marital property. Here, although the trial court determined the retirement plans

were of comparable value, the trial court did apply the Ward formula to take into consideration

the portions of the retirement plans earned before the marriage and after the dissolution, which

would constitute non-marital property, thereby following the outcome in Ward.

        Wife’s real complaint is the fact the trial court, under the broad discretion permitted to a

trial court, reduced the percentage of Husband’s plan awarded to her. Her complaint is actually

with the trial court’s property division in dividing the retirement plans so as to equalize the

marital property awarded to the parties. This division resulted in a division that protected the

rights and interests of both parties.        Moreover, Wife’s claims of error in “offsetting” the

retirement because Husband’s retirement is already vested while Wife’s retirement will not be


11
   Wife acknowledges the percentage of Husband’s retirement awarded to her “was purportedly ‘offset’ by Wife
receiving all of her retirement benefits.”

                                                    14
vested for years, ignores the fact the trial court did not award Husband any percentage of Wife’s

retirement. The trial court determined Husband was entitled to 15% of Wife’s retirement plan

under the formula, but instead awarded Wife her separate military retirement. We observe, the

trial court was creating a division that would be a full and final division of marital property

without any contingencies, which is the favored outcome in Missouri dissolution proceedings.12

Kutcha, 636 S.W.2d at 665-66.

           Finally, Wife’s argument ignores the fact that a distribution of marital property in

Missouri constitutes a final order, which is not subject to modification. See § 452.330.5. “Thus,

once it has been divided as part of a final decree, a pension may not be redivided after

circumstances have changed.” In re Marriage of Strassner, 895 S.W.2d 614, 618 (Mo.App.

E.D. 1995).

           A trial court has broad discretion to devise a division of marital property, including non-

disability retirement plans that protect the rights and interests of both parties. Kutcha, 636

S.W.2d at 666. Missouri courts have taken many different approaches in determining a division




12
     Husband argues in his brief that:

           The Trial Judge in this case, Judge Gregory Warren, has heard thousands of military divorces and
           is certainly aware that military personnel can retire from the military before their military pension
           is vested and rollover their time and service to a civil service pension. See The Military Divorce
           Handbook, Sullivan, at 626. This would have the practical effect in our case of cutting out the
           Husband’s right to receive any military pension benefits from Wife because the military pension
           would not vest. Wife would now have a civil service pension which she would be entitled to
           100% when it vested. It is a reasonable inference in the instant case to believe that the Trial Judge
           wanted to eliminate the risk of forfeiture to Husband and the possible windfall to Wife in a
           situation where Wife retires from the military before her pension vests, rolls over her time in the
           military to a civil service pension (thereby preventing Husband from receiving his share of Wife’s
           military pension) and then keeps 100% of the civil service pension and continues to receive her
           percentage of Husband’s military pension. This is especially true given the Court’s finding of
           marital misconduct against Wife.


                                                           15
of non-disability retirement benefits. We find the trial court’s approach was not an abuse of

discretion.13

        After viewing the evidence in the light most favorable to the Judgment, we find the trial

court’s award concerning the military retirement was supported by substantial evidence, was not

against the weight of the evidence, and was not based on any erroneous declaration or

application of the law. Jennings, 327 S.W.3d at 23. The trial court had substantial discretion in

dividing marital property, and we will not interfere unless the division is so heavily weighted in

favor of one party so as to amount to an abuse of discretion. Booth v. Greene, 75 S.W.3d 864,

868 (Mo.App. W.D. 2002). With respect to her allegations of error in Point I, we find Wife

failed to meet her burden of overcoming the presumption that the trial court’s division of

property is correct. See Souci, 284 S.W.3d at 755. Point I is denied.

                               Point II - Marital Financial Misconduct

                                           Standard of Review

        We will not reverse a trial court’s division of property “unless the division of property is

so heavily and unduly weighted in favor of one party as to amount to an abuse of discretion.”

Jennings, 327 S.W.3d at 23.

        Judicial discretion is abused when a trial court’s ruling is clearly against the logic
        of the circumstances and is so arbitrary and unreasonable as to shock the sense of
        justice and indicate a lack of careful consideration; if reasonable persons can
        differ about the propriety of the trial court’s action, it cannot be said the court
        abused its discretion.

In re Marriage of Eskew, 31 S.W.3d 543, 550 (Mo.App. S.D. 2000).




13
   Wife’s argument is essentially that the division is inequitable because she is receiving less from Husband’s
retirement plan than what she feels she is entitled to. We disagree.

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                                                 Analysis

        In her second point, Wife claims the trial court erred in reducing Wife’s award of

Husband’s military retirement benefits by 3% due to her financial misconduct. Wife claims this

reduction improperly punished Wife for incidents that occurred after the separation of the parties

and resulted in minimal financial impact or burden on Husband.

        Under section 452.330, a trial court is given “great flexibility and discretion in its

division of marital property.” Ballard v. Ballard, 77 S.W.3d 112, 116 (Mo.App. W.D. 2002).

One of the five factors a trial court must consider in dividing marital property is the “conduct of

the parties during the marriage[.]” § 452.330.1(4); see Dodson v. Dodson, 904 S.W.2d 3,

9 (Mo.App. W.D. 1995). When resolving conflicting testimony about the conduct of the parties,

the trial court may reject or accept any of the testimony brought before the court, and we give

deference to the trial court on issues of witness credibility. Messer v. Messer, 41 S.W.3d 640,

643 (Mo.App. S.D. 2001).

        “Marital misconduct which occurs after the parties have separated affects the division of

marital property where the misconduct imposed additional burdens or hardships on the other

party.” Anderson v. Anderson, 656 S.W.2d 826, 828 (Mo.App. E.D. 1983). In this case, there

was evidence presented to the trial court of Wife’s financial misconduct. Wife failed to assist

Husband in paying the mortgage on their marital home from April 2010, until the house was sold

in May 2011. During this time, Husband paid $2,150 per month for the mortgage payment and

all utilities, while Wife did not contribute to the mortgage payment or send any money to help

with the marital bills despite grossing substantially more monthly income than Husband.14



14
   Wife did send Husband a total sum of $900 for the months of October, November, and December 2010, but only
after she was ordered to “by her chain of command.”


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Despite the large difference in their monthly incomes,15 Husband was paying 66% of the marital

debt, along with paying approximately $4,000 towards Wife’s student loans. Wife also required

Husband to bear the entire loss from the sale of the marital home and withheld household

furniture from Husband requiring him to refurnish his new home.

        After a review of the record, we cannot say the trial court erred in finding marital

misconduct by the Wife, and reducing Wife’s award of marital property in light of her financial

marital misconduct. “[I]f reasonable persons can differ about . . . the trial court’s action, it

cannot be said the court abused its discretion.” Eskew, 31 S.W.3d at 550. Applying this

standard, we find no abuse of discretion by the trial court. Wife’s Point II is denied.

        The Judgment of the trial court is affirmed.


WILLIAM W. FRANCIS, JR., C.J. - OPINION AUTHOR

NANCY STEFFEN RAHMEYER, P.J. - Concurs

DANIEL E. SCOTT, J. - Concurs




15
  Wife grossed approximately $10,000 per month; Husband grossed $5,083; according to their Income and Expense
Statements presented to the trial court. However, Husband did not start working at Serco until February 2011, so for
the majority of the time, he was the only person paying the mortgage and his only monthly income was from his
monthly military retirement benefits of $3,401.

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