B.J.D. v. L.A.D.

23 S.W.3d 793, 2000 Mo. App. LEXIS 897
CourtMissouri Court of Appeals
DecidedJune 13, 2000
DocketNo. ED 75612
StatusPublished
Cited by17 cases

This text of 23 S.W.3d 793 (B.J.D. v. L.A.D.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
B.J.D. v. L.A.D., 23 S.W.3d 793, 2000 Mo. App. LEXIS 897 (Mo. Ct. App. 2000).

Opinion

CHARLES B. BLACKMAR, Senior Judge.

The parties were married on December 13, 1988, each for the second time. Wife had a daughter by her first marriage and was carrying her new husband’s child at the time of the wedding. Their son, and only child, was born in the late spring of 1989. Shortly before the marriage the parties entered into a prenuptial agreement prepared by husband’s attorney. Wife’s attorney suggested one modification, which was agreed to. The Family Court Commissioner who presided at the trial found that the agreement had been entered into voluntarily and that it was not unconscionable. We sustain this finding.

Both parties had been trained in the accounting profession. Husband before and after the marriage had been employed by a major accounting firm but, in July 1995, he left that employment and entered into a business consulting enterprise, operating through two wholly-owned corporations. Wife had passed the CPA examination and lacked only the required period of servitude with an accounting firm to qualify as a CPA. She reduced her work involvement during her son’s early years but later entered into a business venture of her own, providing trained employees to service the payrolls of small employers.

The parties separated in 1997 and filed petitions and cross-petitions for dissolution. Wife and her children moved out of the family residence and into an apartment early in 1998.

The case was heard before a Family Court Commissioner, and his judgment was routinely confirmed by the circuit judge. Both parties appeal from the judgment, but husband does not urge any points for reversal. Wife presents twelve points alleging error, most of which have some merit. We discuss the facts material to each asserted point in the subsequent sections of this opinion.

For the reasons which will appear, we reverse the judgment and remand for further proceedings consistent with our opinion. The Commissioner who presided at the trial is no longer in office, and so further hearings will necessarily proceed before another judicial officer. The points on which we find error are to some extent interrelated, and there is not very much from the initial trial that can be salvaged. Nor are there many instances in which we are able to mandate the disposition of an issue pursuant to Rule 84.14. The transcript of the first trial shall be received in evidence, and the presiding officer, judge or commissioner, may take steps to avoid duplications and redundancies.

Point I — The Time Limitation on the Trial

The Commissioner, in May preceding the September trial, reserved two days for the trial. The record contains only the bare order, with no information about the proceedings attending its issuance. On the day of trial wife and her counsel were not present at the opening of court at 9 a.m., and the trial proceeded on husband’s cross-petition. There is no indication, however, that the late appearance of wife and counsel caused any significant delay.

[797]*797Husband’s evidence consumed all of the first day of the allotted trial time and a good part of the morning of the second. Husband and his expert witness were cross-examined at length. At the inception of wife’s case, the court warned counsel that the presentation of the evidence would conclude at 5 p.m. Wife and an expert witness testified, after which counsel testified briefly about his fees. The Commissioner then observed that the time was 4:59 p.m. Counsel stated that he had another expert witness, but the Commissioner said that the trial was over at 5 p.m. and took the case under advisement.

Several days later wife’s counsel filed a written motion asking that the hearing be reopened to permit ninety minutes of direct and cross-examination of his expert witness. He advised the court that the witness, a forensic accountant, would testify as to “[husband’s] manipulation of corporate funds and screening of income, an analysis of the true cash flow of [his] two corporations, and a projection of [his] 1998 income.” The Commissioner overruled the motion.

Husband argues that the complaint about the time limit should fail for want of an offer of proof. We quite agree that a litigant who complains about the exclusion of evidence should invariably make an offer of proof, both to inform the trial court about the content of the proffered evidence and to allow an appellate court to assess the prejudicial effect of the exclusion. Evans v. Wal-Mart Stores, Inc., 976 S.W.2d 582, 584 (Mo.App.1998). Here, however, the Commissioner made it clear that he did not propose to sit beyond five o’clock, and the post-hearing motion informed the Commissioner about what counsel was trying to develop with the witness. It was evident that the Commissioner would not permit an offer by question and answer as provided in Rule 73.01(a)(1). To do so would defeat the purpose of the time limitation. The point was appropriately preserved for review under the circumstances.

Husband cites L.J.B. v. L.W.B., 921 S.W.2d 23, 27 (Mo.App.1996), for the proposition that a trial court has discretion to limit the time for presentation of evidence by a pretrial order, and that the application of this order is reviewable only for an abuse of discretion. That case is very different from this one. Three days were allowed for the trial, which time was within the limits of counsel’s advance indication of the time required. Counsel failed to demonstrate that additional direct testimony or additional cross-examination would have provided anything not already developed by the record. Here, by contrast, the record was woefully deficient in several respects, as will appear from our discussion of the other points. We have no hesitation in saying that the Commissioner abused his discretion in this case by ending the trial before evidence on all essential issues was developed. The old maxim that “haste makes waste” is manifest here.

We need not base our reversal solely on the time limitation ruling because further hearings are required to flesh out the record on essential issues. At these hearings the rejected evidence may be tendered.

We observe at this point that time limitations should be imposed carefully and only after consultation with counsel. If the evidence on essential points cannot be fully developed within the allotted time the court must show some flexibility. Counsel are normally the best judges of the time they require to develop their cases and of the need for cross-examination, which often depends on the clarity and candor of the direct testimony. Intervention by the court may sometimes be necessary but should not be the rule. The court’s primary responsibility is to see that the issues are fully presented.

Point II — The Wholly-Owned Corporations

During the marriage husband left his employment and went into business for himself, forming two wholly-owned corpo[798]*798rations for this purpose under the names of Community Bank Consulting Services, Inc. and Corporate Behavior Consulting Services, Inc. Wife also entered into a business of her own during the marriage, creating a wholly-owned corporation under the name of Payroll Super-Temps, Inc.1 The Commissioner found that each of these corporations was the separate property of the sole shareholder.

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Bluebook (online)
23 S.W.3d 793, 2000 Mo. App. LEXIS 897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bjd-v-lad-moctapp-2000.