Lichtenfeld v. Lichtenfeld

405 S.W.3d 564, 2013 WL 3190199, 2013 Mo. App. LEXIS 763
CourtMissouri Court of Appeals
DecidedJune 25, 2013
DocketNo. ED 98742
StatusPublished
Cited by1 cases

This text of 405 S.W.3d 564 (Lichtenfeld v. Lichtenfeld) 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
Lichtenfeld v. Lichtenfeld, 405 S.W.3d 564, 2013 WL 3190199, 2013 Mo. App. LEXIS 763 (Mo. Ct. App. 2013).

Opinion

OPINION

CLIFFORD H. AHRENS, Presiding Judge.

Mark Lichtenfeld (Husband) appeals the trial court’s dissolution judgment in various respects relating to the characterization and division of property awarded to his former spouse, Marni Lichtenfeld (Wife). We reverse and remand as to Husband’s points LA, IV, and V, discussed below. With respect to Husband’s remaining points, we affirm the trial court’s judgment pursuant to Rule 84.16(b).

Background

Husband and Wife married in 1996. Prior to their wedding, they entered into a prenuptial agreement that defined separate and marital property and directed that, in the event of divorce, the latter would be divided equally. The couple had three children during the marriage. Throughout the marriage, Husband controlled the family finances and took great care not to commingle funds so as to maintain their separate character under the prenuptial agreement. He also kept detailed records tracing all cash flow.

Wife filed for divorce in 2009. As a threshold matter, the parties litigated the validity of the prenuptial agreement, and the trial court upheld it. Then proceeding to the dissolution, as pertinent here, both parties presented extensive evidence and expert testimony regarding the origination and characterization of marital and non-marital assets. In view of that evidence, the court identified the marital property subject to distribution and divided it equally as contemplated by the prenuptial agreement. Husband appeals the court’s judgment as it relates to five specific monetary allocations. Additional facts are provided below as relevant to each point.

Standard of Review

In a dissolution proceeding, this Court must affirm the trial court’s decree of dissolution “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or un[566]*566less it erroneously declares or applies the law.” In re Marriage of Thomas, 199 S.W.3d 847, 851 (Mo.App. S.D.2006); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “The trial court is given broad discretion in dividing property 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.” Id. The trial court abuses its discretion 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.” Kester v. Kester, 108 S.W.3d 213, 218 (Mo.App. S.D.2003).

“Judging credibility and assigning weight to evidence and testimony are matters ‘for the trial court, which is free to believe none, part, or all of the testimony of any witness.’” Love v. Love, 72 S.W.3d 167, 171 (Mo.App. S.D.2002) (quoting In re Marriage of Haugh, 978 S.W.2d 80, 82 (Mo.App. S.D.1998)). “We review the evidence and inferences in the light most favorable to the trial court’s decision and disregard all contrary evidence and inferences.” Thomas, 199 S.W.3d at 851. “An appellate court assumes a trial court believed the testimony consistent with its judgment.” In re Marriage of Heirigs, 34 S.W.3d 835, 841 (Mo.App. S.D.2000).

Discussion

I.A. Attribution of home sale proceeds to Husband

First, Husband asserts that the trial court erred in offsetting against Husband’s share of the marital estate $95,000 received from the sale of the couple’s previous residence in 2004. Neither party included this figure in their respective financial statements filed with the court in 2011. Rather, the court inquired about these proceeds during the examination of Wife’s forensic accountant. To summarize, when the house was sold in 2004, a check payable to Husband and Wife jointly was deposited into a joint account, and then the funds were transferred into Husband’s separate account. Husband testified that the transfer was a bank error, which he corrected by calling the bank. The record contains a letter from the bank to Husband apologizing for the error, and the funds were restored to the joint account. Husband further testified that the money was used for marital expenses such as tuition, vacation, gifts, living expenses, and home improvements. Wife did not dispute his description, and her own expert testified that, “based on [his] understanding based on discussions with Mrs. Lichten-feld,” the proceeds were “used for improvements” to the couple’s subsequent residence.

The trial court’s analysis on this issue was as follows:

There is one area where the court, however, based on the credible evidence, does not follow Husband’s line of thinking, and that is in the area of the use of and disposition of the marital portion of the proceeds from the sale of the Clayton Road house. The parties testified in different manners as to how this was used. Husband attempts to suggest that Wife was very much in agreement with and in fact she used a portion of this money. That may be true, but it is inescapable that, if Husband controlled the financial resources as tightly as is evidenced by his intricate detail of tracing, then it was he and not Wife who determined how to use the money. Further, it is equitable to assess this amount as marital if one uses Husband’s logic of how these proceeds were expended.

[567]*567In essence, although the trial court accepted that the funds were spent on marital expenses, it still charged them against Husband, not due to any wrongdoing, but simply because he controlled the money.

Husband asserts that the trial court erred in including the $95,000 in the calculation and division of marital assets because the money had been spent long before these proceedings and was no longer part of the estate, and there was no evidence that Husband concealed or squandered it. Wife responds that the court’s award reflected a credibility determination against Husband on this particular issue and, as such, is immune to appellate review. Missouri law supports Husband’s position.

“Generally, the trial court cannot value and include in its division of marital property an asset that does not exist at the time of trial.” Fitzwater v. Fitzwater, 151 S.W.3d 135, 137 (Mo.App. W.D.2004). Exceptionally, however, “where a spouse is found to have secreted or squandered marital assets in anticipation of the marriage being dissolved ... the court may charge the offending spouse with the value” of such assets. Id. Once an accusation is raised, the burden of production rests on the alleged wrongdoer to account for the assets in question, but ultimately the burden of proof and persuasion rests on the accusing spouse. Id.

In Fitzwater, as here, the trial court factored into the marital estate and charged against the husband sale proceeds that were spent years before the dissolution proceedings. The husband claimed that the majority was used to pay marital debts and living expenses.

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Bluebook (online)
405 S.W.3d 564, 2013 WL 3190199, 2013 Mo. App. LEXIS 763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lichtenfeld-v-lichtenfeld-moctapp-2013.