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«Edward George Pecher III (Father) appeals a judgment of dissolution entered by the Circuit Court of Callaway County in which it dissolved the ...»

-- [ Page 1 ] --

In the

Missouri Court of Appeals

Western District

LEANNE MARIE PECHER, )

)

Respondent, ) WD75030

)

v. ) OPINION FILED: April 30, 2013

)

EDWARD GEORGE PECHER III, )

)

Appellant. )

Appeal from the Circuit Court of Callaway County, Missouri

The Honorable Robert R. Sterner, Judge Before Division Three: Cynthia L. Martin, Presiding Judge, Joseph M. Ellis, Judge and Gary D. Witt, Judge Edward George Pecher III ("Father") appeals a judgment of dissolution entered by the Circuit Court of Callaway County in which it dissolved the marriage, established custody and parenting time, awarded child support to Leanne Marie Pecher ("Mother") and divided the marital assets. Father contends that the court's judgment was erroneous and asserts four points on appeal. In his first point, Father alleges that the court erred "by not making a just and equitable distribution of property" in that it was not supported by substantial evidence because the court accepted Mother's valuation of the home and not the appraiser's estimation, causing an inequitable distribution. In his second point, Father assigns error to the court in awarding attorney's fees to Mother because the award was not based on substantial evidence. In his third point, Father contends that the court erred in awarding child support for the nineteen-year-old child born of the marriage because that child failed to meet the statutory requirement of being enrolled in college by October 1 following high school graduation in order to qualify for child support. In his fourth point, Father asserts the court erred in calculating the amount of child support owed for the two minor children because the court's Form 14 calculation did not contain an overnight visitation credit for Father, nor did it accurately reflect Mother's monthly income. For reasons more fully explained below, we affirm in part and reverse in part and amend the judgment pursuant to Rule 84.14.1 Factual Background2 Mother and Father were married in 1992 and two children were born of the marriage, Luke Edward ("Son") age nineteen and Kaylee Lynn ("Daughter") age sixteen.

On December 17, 2010, Mother filed for divorce, seeking child support and sole legal and physical custody of the two minor children. On February 10, 2011, Father answered and counter-claimed for dissolution. After the parties separated, the two children remained with Mother in the marital home.

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Mother testified that the marriage was irretrievably broken due to Father's daily drinking to the point of intoxication. She also testified that Father was not home very 1 All rule references are to Missouri Court Rules (2012) unless otherwise indicated.

2 We view the evidence in the light most favorable to the trial court's judgment and defer to the trial court's credibility determinations. Potts v. Potts, 303 S.W.3d 177, 184 (Mo. App. W.D. 2010).

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not contribute to the care of the family other than by providing a paycheck. She further testified that Father had exhibited domestic violence towards her and Son, which led to her obtaining an order of protection. Mother requested Father to pay a portion of her attorney's fees.

With regard to the marital home, Father obtained an appraisal indicating a value of $127,000. Mother testified that the appraisal obtained by Father was too high considering all of the major repairs that the home needed, including a new waste removal system, foundation repair, mold removal, interior drywall repair in ceilings from water damage, and a new HVAC system, among other things. Mother's opinion was that the home was valued at $80,000 due to all of the repairs that would need to be made in order to make it marketable.

Mother testified that Father did not pay any child support during the separation yet cashed in several small life insurance policies and kept the cash. Mother did agree that Father had given her approximately $3,000 and told her to pay his truck payment and his credit card payments for him. During the separation, Father was incarcerated for four months in the Department of Corrections for a felony DWI conviction and underwent alcohol treatment while in custody. Mother testified that the money he gave her was spent on his bills, the balance for Daughter's private high school tuition and was used to reinstate the homeowner's insurance that had previously lapsed. Mother paid the health insurance premiums for the family through her employer.

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children. Son joined the National Guard after high school and was planning to enroll in college once he completed his advanced military training in October. His intention was to begin school in the spring semester at one of two universities, depending on which one would accept his National Guard credit hours. Son began his training in the summer after high school graduation so that he could begin college one semester late and receive tuition assistance.

Father testified that the alcohol treatment was beneficial to him and that he wanted joint custody of the children. He argued that many of the problems with the house had existed for several years and some were there when they purchased the house. He thought the children would want to have overnight visits with him, though admitted that Daughter had not once spent the night at his home throughout the preceding year following the separation. Father testified that he gave Mother several payments of varying amounts after the separation and that she obtained and spent their joint tax refund.





On December 16, 2011, the court entered its judgment. The court set forth the statutory analysis of the factors regarding the best interests of the children. § 452.375.3 The court noted that Father's "alcohol abuse has led to the dissolution of the marriage and the need to consider the mental and physical health of the parents and children."

"[Mother] testified of threats [Father] made and of violating an order of protection."

3 Section 452.375.2 requires the court to assess eight factors in determining the best interest of the children.

All statutory references are to RSMo 2000 cumulative as updated unless otherwise indicated.

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minor children. The court also adopted Mother's proposed parenting plan and ordered that it be followed. The plan allowed for one overnight visit with the children for Father every other weekend. The court also ordered that Father not consume alcohol in the presence of the children, or twelve hours before or after visitation.

The court valued the marital home at $80,000 and awarded it to Mother. It then divided the marital property and ordered that Mother pay Father $40,000 as an equalization payment to balance the equitable distribution.

With regard to child support, the court rejected the Form 14s submitted by the parties and prepared its own. Pursuant thereto, the court awarded Mother $759 per month for the two children and found the current support would be $547 if support were ordered for one child. It also calculated retroactive child support for the time period of January 1, 2011 to the date of Judgment and ordered that Father pay Mother $8,349.00. Attorney fees were awarded to Mother, in the amount of $7,133.35. Each parent was ordered to pay fifty percent of Daughter's high school tuition and fees.

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"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 misstates or misapplies the law." Murray v. Murray, 318 S.W.3d 149, 152 (Mo. App. W.D. 2010). "We will not reverse the trial court's judgment on the basis that it is against the weight of the evidence unless we have a firm basis for concluding that the judgment is wrong or that it is against

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2009). The trial court has broad discretion in the valuation and classification of property and will not be disturbed absent an abuse of that discretion. Quilty v. Fischer, 2013 WL 791837, at *2 (Mo. App. W.D. Mar. 5, 2013). This standard of review is applicable to all points raised on appeal and will not be repeated in each point.

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In his first point, Father alleges that the court erred "by not making a just and equitable distribution of property" in that it accepted Mother's valuation of the home and not the appraiser's opinion, causing an inequitable distribution.

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Father contends that the trial court erred when it accepted Mother's valuation of the marital home at $80,000 because Mother is not an expert in residential appraisals.

Mother and Father owned the home jointly and she resided therein. "In Missouri, it is a general rule that 'the owner of property is competent to testify as to its value.'" Quilty, 2013 WL 791837, at *3 (citing Farley v. Farley, 51 S.W.3d 159, 164 (Mo. App. S.D.

2011)). Thus, Mother, as an owner, was qualified to testify as to her opinion of the value of the property. In support of her opinion, Mother offered several photographs showing the condition of the home and the repairs that it needed. "While it is true that the trial court may not enter a valuation of marital property not supported by evidence at trial, the court nonetheless enjoys broad discretion in valuing marital property." Quilty, 2013 WL 791837, at *3 (citing Foster v. Foster, 149 S.W.3d 575, 581)). The court is not required to accept or give greater weight to expert testimony over an owner's testimony

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citation omitted). Here, the court heard evidence from three witnesses concerning the value of the marital home and was provided with an appraisal and photographs of the property. "The trial court may 'believe or disbelieve the testimony of either party concerning the valuation of property in a dissolution proceeding, and can disbelieve expert testimony.'" Dowell v. Dowell, 203 S.W.3d 271, 276 (Mo. App. W.D. 2006) (citation omitted). The trial court may receive any relevant evidence on valuation of property and we "give great deference to the trial court's decision." Id.

Because evidence at trial, including that of the expert appraiser, indicated that the home required major repairs and would not currently pass a codes inspection, there was substantial evidence to support the court's finding that the marital home was worth less than its appraised market value. In addition, because the trial court has great flexibility in valuing marital property, we discern no abuse of discretion by the trial court in adopting the valuation of $80,000. Point one is denied.

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In his second point, Father argues the trial court erred in ordering Father to pay a portion of Mother's attorney's fees, alleging that there was no substantial evidence to support the award.

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requesting them. Father further points out that the court did not make any finding in its order to support the award.

The trial court is granted broad discretion in determining whether an award of attorney fees is appropriate and in determining the amount of that award. Hall v. Hall, 118 S.W.3d 252, 258 (Mo. App. W.D. 2003) (internal quotation marks and citation omitted). The trial court is an expert on the issue of attorney's fees and its ruling on distribution of attorney's fees is presumptively correct. Craig-Garner v. Garner, 77 S.W.3d 34, 40 (Mo. App. E.D. 2002) (citation omitted).

Generally, parties are responsible for paying their own attorney fees. Reiter v.

Reiter, 372 S.W.3d 899, 905 (Mo. App. W.D. 2012). Section 452.355.1 permits, but does not require, a trial court to award attorney's fees to one party. We will overturn the trial court's decision in this regard only if we find an abuse of this discretion. Id. Relevant

–  –  –

circumstances justifying deviation from the normal rule that each party should bear his own litigation costs” must be made before the court will award attorney's fees. Id.

(internal citation omitted).

Pursuant to section 452.355.1, the trial court awarded attorney's fees to Mother, which the court may do after considering all the "relevant factors including the financial resources of both parties, the merits of the case and the actions of the parties during the pendency of the action." The financial resources of the parties in terms of monthly

–  –  –

$3,762. This is not a case where one party can clearly afford the fees and the other cannot.

However, that does not end the analysis. The trial court was familiar with the merits of the case, the actions of the parties during the marriage, as well as their actions since the point of separation. These actions would include the lack of child support paid to Mother, Father's excessive drinking that resulted in him going to prison, violation of an order of protection by Father and the cashing in of life insurance policies. The trial court may grant an award of attorney fees, even if the parties' financial condition does not otherwise necessitate an award of fees, where misconduct has taken place. Engeman v.

Engeman, 123 S.W.3d 227, 240 (Mo. App. W.D. 2003) (citing T.B.G. v. C.A.G., 772 S.W.2d 653, 655 (Mo. banc 1989)). Here, the evidence would support a finding by the trial court that Father's actions constituted sufficient misconduct to justify the award.

The trial court was in the best position to observe the parties, evaluate the evidence and make this determination. We find no abuse of discretion by the trial court.

Point two is denied.

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In his third point, Father contends that the court erred in awarding child support for his Son because Son failed to meet the statutory requirement of being enrolled in

–  –  –

Section 452.340 governs the support of children through the payment of child support. In Missouri, child support is to be paid for minor children until they turn age eighteen, at which time the obligation of the parent paying the support ends.



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