Ellis v. Ellis

802 S.W.2d 546, 1991 Mo. App. LEXIS 118, 1991 WL 6286
CourtMissouri Court of Appeals
DecidedJanuary 22, 1991
DocketNo. 57968
StatusPublished
Cited by6 cases

This text of 802 S.W.2d 546 (Ellis v. Ellis) 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
Ellis v. Ellis, 802 S.W.2d 546, 1991 Mo. App. LEXIS 118, 1991 WL 6286 (Mo. Ct. App. 1991).

Opinion

REINHARD, Presiding Justice.

Husband appeals from the provisions of a dissolution decree dividing the marital property and awarding wife attorney’s fees, maintenance, and child support. We affirm as modified.

Husband and wife married in December, 1970, and separated for the final time in 1988. This case was tried in November, 1989 when the husband was 42 and the wife was 40. The marriage produced three children, ages 18, 12 and 9. The husband had been in the wholesale shoe business most of his adult life. For the past several years he had been a member of the upper-level management in the companies for which he worked, and often earned yearly salaries in excess of $150,000. In 1987, [547]*547husband organized Vantage Footwear, Inc. (hereinafter, Vantage) with Joe Paterno and John Hoeh. The shoes were manufactured in Taiwan at Tai-Shoe Manufacturing Company, where Mr. Hoeh is a shareholder. They were then purchased by Vantage who sold them in the United States to retailers. Husband had a pension and profit-sharing plan from his previous employment which he rolled over into a pension and profit-sharing plan with Vantage Footwear, Inc. As trustee and sole beneficiary of that plan, he exchanged approximately $364,000 cash held by the plan for 34.7% of Vantage stock.

Both husband and Paterno were salaried officers in Vantage. Husband was president and chief operating officer. His beginning salary was $150,000 and his tax return for 1987 showed an income of $217,-000. When the case was filed in July, 1988, his salary was $150,000. In August his salary was reduced to $95,000, then to $65,-000, and $25,000 just prior to trial.

The evidence revealed that the family’s high standard of living included ownership of many expensive automobiles and a high priced home, frequent travel, and membership in exclusive organizations. There was extensive testimony concerning the financial condition of Vantage from the company’s controller, the company’s CPA, and the husband. Most of this evidence revealed that Vantage was new, had very good sales, a large inventory and a huge debt.

The court dissolved the marriage, granted general custody of the children to wife, ordered husband to pay wife $2,250 maintenance, and child support in the amount of $650 per child. In addition, husband was ordered to pay wife’s medical and dental expenses for three years and the children’s until they reach majority. The court also divided the marital property, and ordered the husband to pay numerous marital bills and hold wife harmless from them. The pension and profit-sharing plan was set off to the husband with the following order: “Respondent is awarded his pension and profit-sharing plan with Vantage Footwear, Inc. subject to Petitioner’s interest in said plan.” As her share of the parties’ marital property, wife was awarded $300,000:

to be paid to her by [husband], as her interest in [husband’s] pension and profit-sharing plan with Vantage Footwear, Inc., and [husband’s interest in] Vantage Footwear, Inc. Said award shall be deemed a judgment lien against husband’s interest in said plan and his interest in the stock of Vantage Footwear, Inc., which is held in or by said plan.

In addition, wife’s attorneys were awarded a judgment for their fees.

We must affirm the trial court’s judgment unless it is unsupported by substantial evidence, unless it is against the weight of the evidence, or unless it erroneously applies or declares the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

We also give due regard to the trial court’s ability to judge the credibility of the witnesses, as required by Rule 73.01(c)(2). When sitting as the trier of fact, the trial court may believe all, part or none of the testimony of any witness. Trenton Trust Co. v. Western Surety Co., 599 S.W.2d 481, 483 (Mo. banc 1980). We note that husband did not request specific findings from the trial court, and thus under Rule 73.-01(a)(2) we shall consider all fact issues as having been found in accordance with the result reached.

Husband claims that the award of $2,250 maintenance and $1,950 total child support is an abuse of discretion because these amounts “are in excess of husband’s ability to pay.” He makes no challenge as to the proof of reasonable needs of his wife or the children. One factor to be considered in the amount of maintenance and child support is the husband’s financial resources and ability to pay. § 452.335.2(3), RSMo Cum.Supp.1990; § 452.340.1(2), RSMo Cum.Supp.1990. Husband’s present salary is not determinative of his ability to pay. The court may consider husband’s past, present and anticipated earning capacity. Goodwin v. Goodwin, 746 S.W.2d 124 (Mo.App.1988).

Husband’s salary at Vantage went from $150,000 in 1988 to $25,000 shortly before [548]*548the trial of this case. Wife testified that husband told her he would lower his salary and hide his money in Switzerland, and she testified that he had counseled others to do the same. The evidence further indicated that husband had control over his salary. The timing of husband’s salary reduction, coupled with his threat to do so, provides further support for the trial court’s implicit finding that husband’s earning capacity could support the size of the trial court’s award.

Furthermore, there was evidence that husband may have had other assets available to him. In 1984, husband claimed partial ownership of several companies which gave him a net worth of over $863,-000. Although husband sold many assets, in some cases for as little as $1.00, wife testified that husband told her he had secret agreements with his brother and other business associates which would allow him to retain ownership of his investments.

We note that wife has custody of the children and does not have use of the family home, which was sold by foreclosure sale when husband refused to make the payments. She cannot fully provide for their needs alone, as she had only two years of college education, did not work during the marriage at husband’s insistence, and at the time of trial made $82.50 per week. Although there was non-medical testimony that husband had recently undergone heart bypass surgery, the evidence also indicated that husband had earned at least $150,000 annually for the last ten years. A review of the entire record leads us to the conclusion that the trial court did not abuse its discretion in the award of maintenance and child support.1

Husband also contends the trial court abused its discretion in awarding $300,000 to wife as her interest in husband’s pension and profit-sharing plan. Husband argues that the only credible evidence presented at trial indicated that the plan had only nominal value, except “wife’s valuation of husband’s interest in the plan at $10-12 million dollars in her statement of property.” We disagree. The testimony indicated that in October, 1987, the husband invested approximately $364,000 from the plan in shares of Vantage. Initially we note that pension plans divided as marital property by the appellate courts of this state have generally complied with IRS guidelines and involved assets that were easily valued by market value or because they held fixed assets. Here, the pension and profit-sharing plan holds 34.7% of the stock in a closely held corporation.

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Related

Bender v. Bender
785 A.2d 197 (Supreme Court of Connecticut, 2001)
Susan Ellis v. Ronald Ellis
Eighth Circuit, 1995
Ellis v. Ellis (In Re Ellis)
149 B.R. 927 (E.D. Missouri, 1993)
Kruger v. Ellis (In Re Ellis)
149 B.R. 925 (E.D. Missouri, 1993)
Burns v. Burns (In Re Burns)
149 B.R. 578 (E.D. Missouri, 1993)

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Bluebook (online)
802 S.W.2d 546, 1991 Mo. App. LEXIS 118, 1991 WL 6286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-ellis-moctapp-1991.