In the Missouri Court of Appeals Eastern District DIVISION TWO
JOY JANELLE MCVEAN, ) No. ED112557 ) Respondent, ) Appeal from the Circuit Court of ) St. Louis County vs. ) 21SL-DR04042 ) ANTHONY DAVID MCVEAN, ) Honorable Amanda B. McNelley ) Appellant. ) Filed: June 27, 2025
Before Lisa P. Page, P.J., Rebeca Navarro-McKelvey, J., and Virginia W. Lay, J.
Anthony David McVean (Husband) appeals from the trial court’s judgment of dissolution
of his marriage to Joy Janelle McVean (Wife), which divided property and debts, and ordered
Husband to pay maintenance, child support, and attorney’s fees.
BACKGROUND
Husband and Wife were married on May 20, 2000. The parties separated in April 2021
shortly after Husband withdrew $200,000 of marital property from his 401(k) to quit his
management career with McDonald’s to open a restaurant with his friends but without Wife’s
knowledge or consent. There were two children born of the marriage. The oldest is emancipated
and the younger son has special needs such that he cannot function independently or support
himself. Wife filed a petition for dissolution on August 27, 2021. At trial on July 10, 2023,
neither party requested findings of fact or conclusions of law. In fact, upon the court’s inquiry,
both parties affirmed they were not seeking them. At trial, Husband acknowledged he did not consult with Wife before he voluntarily quit
his twenty-eight-year career with McDonald’s, giving up health insurance, vacation, 401(k)
benefits, and a salary that provided for his family. He contemporaneously withdrew $200,000 in
marital assets from his McDonald’s 401(k), again without Wife’s knowledge or consent, to
become self-employed. Husband claimed he did so unilaterally because he knew Wife would
not agree and he “had to get out of McDonald’s.” He justified his decision to leave McDonald’s
because he preferred to work similar long hours for himself, rather than a corporation.
Husband invested $140,000 of the $200,000 in marital assets into Old Town
Smokehouse, where he holds a 33 percent ownership interest with his friends, a married couple. 1
He claimed his partners have paid him half of the investment, about $70,000, but that money
went into a business account reserve. Husband rolled the balance of the marital 401(k) into a
business IRA in Husband’s name and named his partner’s wife – not his Wife – as the
beneficiary. At trial, $57,186 remained in the IRA and the business still owed Husband $94,000.
The evidence showed Husband’s 2019 gross income was $72,662, and his 2020 gross
income was $68,713. At trial, he did not provide tax information for 2021, but testified his
income was $4,000 per month, or $48,000. For 2022, his Second Amended Statement of Income
and Expenses reported his gross monthly income was $3,000, but he testified at trial that his net
income was $2,000 per month from self-employment.
Wife’s evidence showed Husband’s spending on several trips with his friends, as well as
his use of significant marital funds at casinos while the divorce was pending. Wife testified that
Husband did not consult her prior to quitting his job, withdrawing $200,000 in marital assets
from his 401(k) and starting a new business with his friends.
1 He said his partners own 67 percent of the business, with the husband owning 33 percent and the wife owning 34 percent.
2 Judgment was entered on September 25, 2023. The court awarded the parties joint legal
custody with sole physical custody to Wife and visitation to Husband. The court considered the
Section 452.330 RSMo (2016) 2 relevant factors with respect to the parties’ marital property and
debt in dividing their property. The court then determined the respective gross and net income of
each party to calculate maintenance and Form 14 child support.
In its judgment, the court found Husband had a greater earning capacity and the means to
replace his portfolio of assets while Wife did not. Husband was the primary income producer of
the family while Wife was the primary caretaker of the children, especially their special needs
son. The court concluded that a just, fair, equitable, and conscionable distribution of marital
property was fifty percent to each Wife and Husband. In dividing the McDonald’s 401(k) the
court ordered “[f]irst $100,000 to Wife, then divide equally” for her share of the $200,000
Husband withdrew without her consent during the marriage. The remaining property and debt
were divided between the parties resulting in a division of 51 percent to Wife and 49 percent to
Husband.
The court found Wife worked part time with the Rockwood School District earning
approximately $1,321 per month in gross income and calculated her net income as $1,042. In
calculating maintenance, her reasonable expenses were $4,395, leaving her with a monthly
deficit of $3,353. The court imputed Husband’s gross annual income as $70,688, ($5,891 per
month) or a net income of $5,327. Even though Husband testified his actual expenses were $760
per month, the court imputed his reasonable monthly expenses as $4,780 ($385 more than Wife’s
actual expenses), resulting in a surplus of $547. The court ordered Husband to pay Wife $1,000
2 All further statutory references are to RSMo (2016).
3 per month in maintenance, leaving him with a monthly deficit of $453, and reducing Wife’s
deficit to $2,353.
The court rejected both parties’ Form 14 and calculated its own, applying the same gross
income it used to determine the net income for maintenance which resulted in a child support
obligation of $699 per month. This appeal follows.
DISCUSSION
Husband raises three points on appeal. In his first point, he alleges the trial court erred in
imputing $5,891 per month gross and $5,327 per month in net income to him because there was
no substantial evidence to support a ruling that he was capable of earning that amount. Husband
argues he had ceased working for McDonald’s prior to the parties having filed for the dissolution
of marriage and there was no evidence that he was able to obtain his previous job or earn the
same amount of money at the time of trial. He claims he was working full time and there were
no findings or evidence to suggest he was underemployed or seeking to evade parental
responsibilities by changing employment.
In his second point, Husband alleges the trial court erred in ordering him to pay awards of
$1,000 per month in maintenance and $699 per month in child support to Wife because, even
assuming, arguendo, that Husband made the income the court imputed to him, he still had no
ability to pay the awards of maintenance and child support while meeting his own reasonable
needs, which is arbitrary and unreasonable and constitutes an abuse of discretion.
In his third and final point, Husband alleges the trial court erred in entering a significantly
disproportionate division of property because there was no substantial evidence to support such a
division in that the court explicitly found that a fifty/fifty division of property and debt was “fair,
4 just and equitable” but then entered a division of property that was internally inconsistent with its
own conclusions of law.
Standard of Review
When reviewing a trial court’s decision from a court-tried case, we affirm the judgment
of the trial court unless one of the following circumstances exist: (1) no substantial evidence
supports the judgment; (2) the judgment is against the weight of the evidence; (3) the judgment
erroneously declares the law; or (4) the judgment erroneously applies the law. Murphy v.
Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
Substantial evidence is evidence that has some probative force on each fact that is
necessary to support the trial court’s judgment. Ivie v. Smith, 439 S.W.3d 189, 199 (Mo. banc
2014) (citing In re K.A.W., 133 S.W.3d 1, 9 (Mo. banc 2004)). Probative force means the
evidence has any tendency to make a material fact more or less likely. Id. at 199-200 (citing
Kansas City v. Keene Corp., 855 S.W.2d 360, 367 (Mo. banc 1993)). When reviewing whether
the trial court’s judgment is supported by substantial evidence, we view the evidence in the light
most favorable to the judgment and defer to the trial court’s credibility determinations. Id. at 200
(citing In re J.A.R., 426 S.W.3d 624, 626, 631–32 & n.14 (Mo. banc 2014)). Trial courts are free
to believe any, all, or none of the evidence presented at trial. Id. (citing In re J.A.R., 426 S.W.3d
at 627).
The trial court is vested with broad discretion in awarding both maintenance and child
support. Dickerson v. Dickerson, 580 S.W.3d 98, 103 (Mo. App. E.D. 2019). We reverse only
upon finding an abuse of discretion. Id.; Steffens v. Steffens, 773 S.W.2d 875, 876 (Mo. App.
E.D. 1989). Such awards shall not be disturbed unless the evidence is “palpably insufficient” to
support them, and an appellate court will not substitute its judgment for that of the trial court.
5 Steffens, 773 S.W.2d at 876. (citing Hogrebe v. Hogrebe, 727 S.W.2d 193, 195[1] (Mo. App.
1987)). 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. Dickerson, 580 S.W.3d at 103. We defer to the trial court even if
the evidence could support a different conclusion. Id. If reasonable minds could differ about the
propriety of the trial court’s decision, there is no abuse of discretion. Id. at 103-04.
Point I – Imputing Income
In his first point, Husband alleges the trial court erred in imputing $5,327 per month in
income to him because there was no substantial evidence to support a ruling that he was capable
of earning that amount. He argues he had ceased working for McDonald’s before the parties had
filed for dissolution, there was no evidence he was able to obtain his previous job or earn the
same amount of money, at the time of trial he was working full time, and there were no findings
or evidence to suggest he was underemployed or evading parental responsibilities by changing
employment.
A trial court has discretion to impute income to an underemployed parent. Rivers v.
Rivers, 21 S.W.3d 117, 124 (Mo. App. W.D. 2000) (internal citation omitted). In proper
circumstances, a court may impute income of what that parent could earn by use of his best
efforts to obtain employment suitable to his capabilities. Thomas v. Thomas, 989 S.W.2d 629,
635 (Mo. App. W.D. 1999) (internal quotations omitted). “[C]ourts may impute a higher income
to a noncustodial parent than he or she actually earns, if the evidence shows that the parent has
the capacity to earn more but voluntarily refuses to do so.” Walker v. Walker, 936 S.W.2d 244,
247 (Mo. App. S.D. 1996) (internal citations omitted) (emphasis added); Robertson v. Nelson,
502 S.W.3d 627, 642 (Mo. App. W.D. 2016).
6 “What constitutes the appropriate circumstances to impute income is fact-dependent and
must be determined case-by-case.” Payne v. Payne, 206 S.W.3d 379, 385 (Mo. App. E.D.
2006). When income is imputed, the issue is whether the evidence supports that amount.
Monnig v. Monnig, 53 S.W.3d 241, 245 (Mo. App. W.D. 2001) (quoting Honderick v.
Honderick, 984 S.W.2d 205, 212 (Mo. App. W.D. 1999)). In determining a parent’s ability to
pay child support, a court may consider past, present, and anticipated earning capacity. Thill v.
Thill, 26 S.W.3d 199, 207 (Mo. App. W.D. 2000). Evidence of spending is also substantial
evidence of a parent’s earning potential. Heck v. Heck, 318 S.W.3d 760, 765 (Mo. App. W.D.
2010) (father’s testimony about his intent to pay off debt indicated his intent to earn income).
We begin with Husband’s assertion the record does not support the imputation of income
to him because he had ceased working for McDonald’s prior to the parties having filed for the
dissolution of marriage. This complaint is without merit because his personal decisions to quit
his job and withdraw $200,000 in marital 401(k) funds were unsurprisingly contemporaneous
with the time he and Wife separated, even though Wife did not file for divorce until August.
This claim is simply refuted by the record.
Husband complains there was no evidence that he was able to obtain his previous job or
earn the same amount of money, he was working full time at the time of trial, and there were no
findings or evidence to suggest he was underemployed or seeking to evade parental
responsibilities by changing employment. Finally, Husband argues the “only reasoning provided
by the trial court as to why it was electing to impute income to Husband was due to ‘[Husband’s]
voluntary termination from McDonald’s to start his own restaurant.’”
Husband elected to leave McDonalds after a long career without exploring other
employment opportunities other than becoming self-employed, especially those that might pay
7 him more or provide benefits. He gave up health insurance, vacation, 401(k) benefits from
McDonalds, and a salary that provided for his family. Husband’s major complaint about
working at McDonalds was the hours. However, he continues to work the same number of hours
at his new business because he prefers to work for himself.
The trial court is not required to specifically state it found Husband underemployed, as
neither party requested findings of fact or conclusions of law, but it is clear the evidence supports
an imputation of income to him. We are unmoved by Husband’s personal preference to work for
himself as a legal basis upon which to determine his income in calculating his maintenance and
child support obligations. Based upon this evidence, we find the court was well within its
discretion to consider Husband’s past, present, and anticipated earning capacity to determine
Husband’s ability to pay support. See Thill, 26 S.W.3d at 207. In light of Husband’s substantial
history in the food industry and his unilateral decision not to make any effort to find another job
with a higher salary or benefits so he could work for himself, we find it was reasonable for the
court to impute income to Husband by averaging his 2019 and 2020 salaries.
The trial court did not abuse its discretion in imputing income to Husband based on his
obvious underemployment, which he chose without consulting Wife, even though he was the
primary income producer for his family, especially their special needs son. Point one is denied.
Point II – Maintenance and Child Support
In his second point, Husband alleges the trial court erred in ordering him to pay awards of
$1,000 per month in maintenance and $699 per month in child support to Wife because, even
assuming, arguendo, that Husband made the income the court imputed to him, he still had no
ability to pay the awards of maintenance and child support while meeting his own reasonable
needs. Husband contends the court’s decision was arbitrary and unreasonable and constitutes an
8 abuse of discretion. We disagree because the court properly calculated each in accord with
Missouri statutes and Supreme Court rules.
In Missouri, awards of spousal maintenance and child support are two distinctly separate
concepts, and maintenance does not include child support. Atchley v. Atchley, 334 S.W.3d 709,
714 (Mo. App. E.D. 2011) (citing Nichols v. Nichols, 14 S.W.3d 630, 637 (Mo. App. E.D.
2000)). Maintenance payments must first be determined and are limited to the needs of the
recipient. Id. Section 452.335 RSMo (2016) 3 governing spousal maintenance excludes amounts
spent for the direct care and support of a child in calculating maintenance. Id.; Schubert v.
Schubert, 366 S.W.3d 55, 64 (Mo. App. E.D. 2012).
The trial court may award maintenance only if it first finds the party seeking it lacks
sufficient property, including marital property apportioned to them, to provide for their
reasonable needs, and is unable to support themselves through appropriate employment. Section
452.335.1; D.K.H. v. L.R.G., 102 S.W.3d 93, 103 (Mo. App. W.D. 2003). If the trial court
determines the party seeking maintenance cannot meet their reasonable needs, the trial court
must apply the factors of Section 452.335.2 “so as to balance the reasonable needs of the spouse
seeking maintenance against the ability of the other spouse to pay.” Manning v. Manning, 292
S.W.3d 459, 466 (Mo. App. E.D. 2009) (quoting Garrison v. Garrison, 255 S.W.3d 37, 41 (Mo.
App. W.D. 2008)). Importantly, the statute gives the trial court broad discretion in applying
these factors. Hammer v. Hammer, 139 S.W.3d 239, 241 (Mo. App. W.D. 2004). “[T]he court
is not required [in the absence of a request for specific findings] to announce for the record the
significance of and the weight that it gave to each factor in determining its award of
maintenance.” Id. (internal quotations omitted).
3 All further statutory references are to RSMo (2016).
9 “A maintenance award is aimed at closing the gap between the income of the spouse
seeking maintenance and that spouse's monthly expenses.” In re Marriage of Neu, 167 S.W.3d
791, 795 (Mo. App. E.D. 2005) (citing N.M.O. v. D.P.O., 115 S.W.3d 854, 857 (Mo. App. E.D.
2003)). Such an award must be supported by substantial evidence. Allen v. Allen, 927 S.W.2d
881, 885 (Mo. App. W.D. 1996) (citing Woolridge v. Woolridge, 915 S.W.2d 372, 375 (Mo.
App. W.D. 1996), and Murphy, 536 S.W.2d at 32); In re Marriage of Randle, 762 S.W.2d 494,
495 (Mo. App. W.D. 1988). If it is supported by substantial evidence, we will not find an abuse
of discretion. In re Marriage of Ross, 231 S.W.3d 877, 886 (Mo. App. S.D. 2007).
Husband does not dispute the trial court’s conclusion regarding the threshold issue that
Wife was unable to provide for her reasonable needs; thus, we need not discuss it further. Next,
the court made findings on factors set forth in Section 452.335.2, and premised the award of
maintenance on (i) Wife’s current income; (ii) the amount of financial support provided by
Husband in order to meet Wife’s reasonable needs during the pendency of this matter; (iii)
Husband’s current income; (iv) the ages of both parties; (v) the marital property awarded to
Husband and Wife; (vi) Husband and Wife’s debt; (vii) Husband’s reasonable needs; (viii) the
conduct of the parties during the marriage; (ix) the 23-year duration of the parties’ marriage; and
(x) the amount of Husband’s net income and his ability to pay maintenance and continue to meet
his own reasonable needs. Here, the court did consider Husband’s imputed net income and
reasonable needs for purposes of calculating maintenance, but it was one of several, not the only
factor, weighed by the court.
Next, the court properly considered Wife’s reasonable monthly expenses as $4,395 while
she earned $1,043 net income per month working limited hours part time at the school district,
while caring for her child with special needs; thus, she met her statutory threshold for an award
10 of maintenance with a shortfall of “roughly $3,353.00 per month.” Despite this shortfall, Wife
only sought $1,500 per month in maintenance. The court then calculated Husband’s net monthly
income as $5,327. After generously imputing his reasonable monthly expenses as $4,780 (even
though his actual expenses were $760), the court ordered him to pay Wife $1,000 per month in
maintenance, reducing Wife’s deficit to $2,353 while Husband is $454 short meeting his
reasonable needs.
In addition to this significant disparity between the parties’ ability to meet their
reasonable needs, the court considered Husband’s conduct. While not characterizing his
behavior as misconduct, the court was well within its discretion to consider his withdrawal of
$200,000 from his McDonalds 401(k) without consulting with Wife to open his new business,
taking vacations, and spending large sums of marital funds at casinos. Husband had access to
sizeable amounts of money for discretionary spending while eliminating many of his expenses
because he was living with his parents. See Lindsey v. Lindsey, 336 S.W.3d 487, 498-99 (Mo.
App. E.D. 2011) (court may reduce stated reasonable expenses based on parties’ testimony);
Valentine v. Valentine, 400 S.W.3d 14, 23 (Mo. App. E.D. 2013). The trial court properly
considered one element of Husband’s ability to pay among the other factors set forth in Section
452.335.2 and did not abuse its discretion in ordering Husband to pay the award of maintenance
based on his imputed income.
After calculating an award of maintenance to Wife, the trial court calculated child support
as required by Section 452.340 and Rule 88.01, which requires a two-step process. Wilkerson v.
Wilkerson, 707 S.W.3d 79, 89 (Mo. App. S.D. 2025). The court must first calculate the
presumed child support amount according to Rule 88.01 using Form 14, which creates a
“rebuttable presumption that the presumed child support amount is the correct amount of child
11 support.” Girgis v. Girgis, 676 S.W.3d 510, 513 (Mo. App. E.D. 2023) (quoting Hark v. Hark,
567 S.W.3d 671, 676 (Mo. App. E.D. 2019)); see also Woolridge, 915 S.W.2d 372 at 378 (“The
use of Form 14 in calculating child support is mandatory.”). In making this determination, “the
trial court can either accept one of the parties’ Form 14 calculations or reject both parties’
calculations and prepare its own Form 14 calculation.” Roberts v. Roberts, 391 S.W.3d 921, 922
(Mo. App. W.D. 2013). “The trial court can do its own Form 14 calculation by either completing
a Form 14 worksheet and making it a part of the record, which we recommend as the most
efficient and surest way of preserving the record, or by articulating on the record how it
calculated [the] amount.” Woolridge, 915 S.W.2d at 382. The Form 14 is calculated based upon
the respective gross income of each parent. Tolu v. Stientjes, 703 S.W.3d 619, 639 (Mo. App.
E.D. 2024). Next, the trial court must determine if the presumed child support amount is unjust
or inappropriate based on the Form 14 directions. Thomas v. Moore, 410 S.W.3d 748, 758 (Mo.
App. W.D. 2013).
Here, the court calculated its own Form 14 by finding Wife’s monthly gross income as
$1,321 and Husband’s as $5,891. The court then added $1,000 in maintenance to Wife’s income
for a total of $2,321 and subtracted Husband’s maintenance obligation to find his income at
$4,891. The trial court apportioned Wife with 32.2 percent of their combined income and
Husband with 67.8 percent. After determining the basic child support amount was $1,031, the
trial court then found the presumed child support amount was $699.
The trial court “carefully reviewed all relevant factors bearing on the issue of child
support, health insurance coverage, and the payment of health expenses and extracurricular
expenses for the minor child” and did not rebut the presumed Form 14 child support of $699 per
month as unjust and inappropriate.
12 Husband’s allegedly unmet reasonable expenses do not demonstrate an abuse of
discretion, or a lack of careful consideration, in finding the $699 presumed Form 14 child
support amount was just and appropriate in providing for his child with special needs.
Husband’s second point on appeal is denied.
Point III – Disproportionate Division of Property
In his third and final point, Husband alleges the trial court erred in entering a significantly
disproportionate division of property because there was no substantial evidence to support it in
that the court explicitly found that a fifty/fifty division of property and debt was “fair, just and
equitable” but then entered a division of property that was internally inconsistent with its own
conclusions of law. Husband claims Wife was awarded $117,325 more in net marital assets
which resulted in 58-42 percent division in favor of Wife. He claims his analysis on appeal is
further complicated because the court should not have awarded Wife any of his business IRA
because it was funded by his half of McDonald’s 401(k) that he withdrew during the marriage.
We disagree and find the record does not support his claim.
The trial court has “great flexibility and discretion in its division of marital property”
pursuant to Section 452.330. Ballard v. Ballard, 77 S.W.3d 112, 116 (Mo. App. W.D. 2002).
This court presumes the trial court’s division is correct, and the spouse challenging the division
bears the burden of overcoming this presumption. Id. (citing Rivers, 21 S.W.3d at 123). “‘The
division of marital property [pursuant to Section 452.330] need not be equal, but must only be
fair and equitable given the circumstances of the case.’” Shepard v. Shepard, 47 S.W.3d 412,
417 (Mo. App. S.D. 2001) (quoting Nelson v. Nelson, 25 S.W.3d 511, 517 (Mo. App. W.D.
2000)).
13 Husband complains Wife received $433,495 of the net value of the marital estate
compared to his $316,170. This is incorrect because the court ordered the “[f]irst $100,000, then
divide equally” in its division of the 401(k). Instead, he included the $100,000 in her share of
marital assets but failed to account for his share of the $200,000 he withdrew from the 401(k)
marital funds in his calculation. In correcting his math, we find Wife was awarded $333,495 or
51 percent of the marital estate’s net value. See Shepard, 47 S.W.3d at 417 (division of marital
property need not be equal, but must be fair and equitable based on the circumstances of the
case).
Husband further has nothing to complain about on appeal with regard to Wife’s award of
half of his business 401(k). First, it remained a marital asset and as such, was subject to division
within the broad discretion of the trial court. Ballard, 77 S.W.3d at 116. His efforts to put the
funds into the business IRA and name his partner’s wife as the beneficiary did not magically
convert it into his separate property. Second, the court awarded him 100 percent of this interest
in Old Town Smokehouse, LLC, incorporated and funded with marital assets during the
marriage. Clearly his business had a marital component that was not awarded to Wife. Finally,
Husband has enjoyed exclusive use and control of Wife’s marital share of the 401(k) funds since
he withdrew them without her knowledge.
In conclusion, we need not speculate on the court’s exercise of its discretion in dividing
marital assets as suggested in Husband’s point on appeal because he did not request findings
under Rule 73.01(c). We therefore deem all fact issues “to have been resolved by the trial court
in accordance with its award.” In re Marriage of Murphy, 71 S.W.3d 202, 206 (Mo. App. S.D.
2002).
Husband’s third point is denied.
14 CONCLUSION
In conclusion, we find the trial court carefully considered all the issues necessary in
preparing a judgment of dissolution in the proper order of dividing property and debt, imputing
and finding gross and net income for each party, determining maintenance, and finally
calculating Form 14 child support. The judgment of the trial court is affirmed.
_____________________________ Lisa P. Page, Presiding Judge Rebeca Navarro-McKelvey, J., and Virginia W. Lay, J., concur.