Ruffino v. Ruffino

400 S.W.3d 851, 2013 WL 2489828, 2013 Mo. App. LEXIS 696
CourtMissouri Court of Appeals
DecidedJune 11, 2013
DocketNo. ED 97848
StatusPublished
Cited by5 cases

This text of 400 S.W.3d 851 (Ruffino v. Ruffino) 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
Ruffino v. Ruffino, 400 S.W.3d 851, 2013 WL 2489828, 2013 Mo. App. LEXIS 696 (Mo. Ct. App. 2013).

Opinion

ROBERT G. DOWD, JR., Presiding Judge.

Salvatore Ruffino (“Husband”) appeals from the dissolution judgment of the trial court awarding child support and maintenance to Kimberley Ruffino (“Wife”). Husband argues the trial court erred in its [854]*854calculations for the child support award, the maintenance award, and the distribution of marital assets. On cross-appeal, Wife argues the trial court erred in its division of Husband’s retirement accounts. We reverse the judgment of the trial court to the extent that it fails to provide the findings necessary for Wife to prepare a Qualified Domestic Relations Order and remand for that purpose. We affirm the judgment in all other respects.

A brief summary of the relevant facts follows. Additional facts will be addressed as needed throughout our analysis.

Husband and Wife married in August 1987. Wife became pregnant in 1988 and did not work from that time until 1999 so that she could take care of the parties’ three children. At the time of the dissolution, Wife worked for 6Star Management Company, LLC (“6Star”), a condominium management company owned by Husband and Wife that manages rental units at Lake of the Ozarks. Three of the condominiums are owned by Husband and Wife while twenty-seven are owned by third parties. Wife is the sole employee of 6Star, working sixty-five to seventy hours per week. At the time of the dissolution, Husband was the vice president of a construction company.

During the marriage, Husband verbally and physically abused Wife, including hitting her, punching her, pulling her hair, hitting her in the head, and pushing her on numerous occasions. This abuse has caused Wife to suffer from Post-Traumatic Stress Syndrome as well as physical harm such as a black eye.

The parties separated in December 2007, and the trial court entered its Judgment of Dissolution of Marriage in November 2011. This appeal follows.

Our review in a court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm the judgment of the trial court unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. We defer to the trial court’s determinations of credibility and view the evidence and inferences that may be drawn therefrom in the light most favorable to the judgment. Neal v. Neal, 281 S.W.3d 330, 337 (Mo.App. E.D.2009).

For his first point, Husband argues the trial court erred in calculating the award of child support to Wife, in violation of Rule 88.01,1 because the trial court did not properly calculate Wife’s monthly gross income. We disagree.

When calculating a self-employed parent’s gross income for purposes of Form 14, the calculations must begin with the parent’s gross receipts minus ordinary and necessary expenses. In re Marriage of Harvey, 48 S.W.3d 674, 677 (Mo.App. E.D.2001). It is within the discretion of the trial court whether to include depreciation, investment tax credits, and other non-cash reductions of gross receipts when calculating a parent’s gross income. See id.

The trial court calculated Wife’s yearly gross income at $22,928.00 for a monthly gross income of about $1,911.00, obtaining this number from the testimony of Wife’s expert, Thomas Norton. According to Norton’s testimony, he reached this number by looking at the average income for 2007, 2008, 2009 and estimated income for 2010 for all third-party condominiums and the one personally-owned condominium to be awarded to Wife in the dissolution judgment. After finding the average net income for those years (shown on Norton’s worksheet as gross receipts minus busi[855]*855ness expenses), Norton made certain adjustments to account for “things that aren’t really cash” such as depreciation, loan payments, and adjustments related to the parties’ IRS audit.

Husband argues 6Star’s revenues in 2010 were $127,324.45 and its ordinary and necessary expenses were $34,793.24, resulting in a yearly gross income of $95,531.21. Husband acknowledges, however, that there was conflicting evidence presented during trial as to 6Star’s expenses. The trial court is free to believe or disbelieve part, all, or none of the testimony of any witness. In re Marriage of Angell, 328 S.W.3d 753, 756 (Mo.App. S.D.2010). Here, the trial court found Wife and Norton presented credible testimony. Norton’s calculations were based on 6Star’s gross receipts minus expenses, as required by Rule 88.01 and Form 14. Norton then included non-cash adjustments which were within the trial court’s discretion to allow. These calculations followed the requirements of Rule 88.01 and Form 14. Therefore, the trial court did not err in calculating Wife’s monthly gross income on Form 14. Point denied.

For his second point, Husband argues the trial court erred in its calculation of the maintenance award to Wife, in violation of Section 452.335.2 We disagree.

The amount of a maintenance award is governed by Section 452.335.2 which provides relevant factors for the trial court to consider such as the financial resources of the parties, the earning capacity of the parties, the standard of living established during the marriage, and the conduct of the parties during the marriage. Section 452.335.2. A judgment concerning an award of maintenance is presumed to be correct. Souci v. Souci, 284 S.W.3d 749, 758 (Mo.App. S.D.2009). In the absence of a finding that the maintenance amount is patently unwarranted and wholly beyond the means of the spouse who pays, we will not interfere with the trial court’s award. Id. The trial court must exclude from any maintenance award amounts expended for the direct care and support of a dependent child. In re Marriage of Neu, 167 S.W.3d 791, 796 (Mo.App. E.D.2005). When calculating and awarding maintenance, the trial court may allow a reasonable amount above the itemized expenses of the party seeking maintenance to meet unexpected day-to-day expenses which, given their nature, may be reasonable under the circumstances, yet are incapable of specific itemization. Childers v. Childers, 26 S.W.3d 851, 856 (Mo.App. W.D.2000). It is proper for the court to consider Wife’s expenses in light of her net income after taxes. Id. All fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached. Rule 73.01(c).

The trial court relied on Wife’s Statement of Income and Expenses in reaching its maintenance award of $3,900.00 per month. In that Statement, Wife calculates her monthly expenses to be $7,963.05. The trial court did not specifically state which expenses from Wife’s Statement were included in its $3,900.00 award; however, the trial court did eliminate all expenses for the parties’ children included in the Statement. Counting just those expenses that were reasonable and attributable to Wife alone, the trial court found Wife’s monthly expenses to be $3,900.00.

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Bluebook (online)
400 S.W.3d 851, 2013 WL 2489828, 2013 Mo. App. LEXIS 696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ruffino-v-ruffino-moctapp-2013.