RICHARD E. BEECHER, )
)
Appellant, )
)
vs. ) No. SD32620
)
TERRY L. BEECHER, ) FILED: January 21, 2014
)
Respondent. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY
Honorable Daniel W. Imhof, Judge
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH
DIRECTIONS
Richard and Terry Beecher were wed 27 years when he filed for dissolution.
He was a highly compensated petroleum engineer. Terry was disabled. The
marital estate was sizeable. A 2010 trial ultimately resulted in a March 2013
Third Amended Judgment granting Terry maintenance, attorney fees, and 52.5%
of the marital property.
Richard complains that the court used stale values, misclassified Richard’s
unvested employee stock rights as marital property, and erred in awarding
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maintenance and attorney fees. We must reverse in part and remand to address a
miscalculation in the judgment, which we affirm in all other respects.
Principles of Review
We will affirm the judgment unless it is not supported by substantial
evidence, it is against the weight of the evidence, or it erroneously declares or
applies the law. Barth v. Barth, 372 S.W.3d 496, 503 (Mo.App. 2012). We
view the evidence most favorably to the result, disregard contrary proof, assume
all fact issues were resolved in favor of the judgment entered, and defer to the
trial court even if the record might support a different conclusion. Id. The trial
court was free to believe or disbelieve all, part, or none of any witness testimony.
Ruffino v. Ruffino, 400 S.W.3d 851, 856 (Mo.App. 2013).
The trial court had broad discretion in granting maintenance, dividing
marital property, and awarding attorney fees. Coleman v. Coleman, 318
S.W.3d 715, 719 (Mo.App. 2010). We review such decisions for abuse of
discretion, finding this only when an award is so illogical, arbitrary, and
unreasonable as to shock the sense of justice and indicate a lack of careful
consideration. Barth, 372 S.W.3d at 503. Discretion was not abused if
reasonable persons could differ as to whether the court acted properly. Id.
Background
The appellate record exceeds 3000 pages. We cite only what is needed to
understand our disposition of Richard’s points. The following timeline is
relevant to Points I and II.
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April 2010 Four-day trial.
December 2010 Richard provides updated values.
June 28, 2011 Judgment divides marital estate 50/50 per
updated December 2010 values, requires
parties to exchange updated values as of
judgment date, and provides that parties
will equally share any increase or decrease
in values up to judgment date.
July 8, 2011 First Amended Judgment entered
correcting typographical errors.
July 20, 2011 Richard provides updated values as of June
2011 judgment date, and moves for
rehearing or other relief. Terry also moves
for rehearing.
August 2011 Motions for rehearing granted. Case
remanded to Family Court Commissioner
to consider correcting math errors, if any,
and for other considerations deemed
appropriate by Commissioner.
December 5, 2012 Parties appear in court per Terry’s request
to set all motions and case for hearing.
January 14, 2013 Second Amended Judgment entered. Still
recites December 2010 values, requires
parties to exchange updated values as of
this judgment date, and provides that
parties will equally share any increase or
decrease in values up to this judgment
date.
January 28, 2013 Richard moves to amend the judgment or
for rehearing, etc., resubmits June 2011
values, and directs court’s attention
thereto. Terry also moves for rehearing.
February 8, 2013 Motion hearing.
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March 12, 2013 Third Amended Judgment entered, now
dividing marital property 52.5% to Terry
and 47.5% to Richard. Still recites
December 2010 values, requires parties to
exchange updated values as of this
judgment date, and provides that parties
will equally share any increase or decrease
in values up to this judgment date.
March 20, 2013 Richard files notice of appeal.1
Point I – Failure to Use Current Values
Richard charges trial court error “in failing to use current values” in the
Third Amended Judgment. He alleges that marital property values “changed
significantly from the date of trial to the date of the original Judgment to the date
of the Third Amended Judgment almost three years after the trial of the case ….”
Citing Marriage of Gustin, 861 S.W.2d 639 (Mo.App. 1993), Richard notes
that if property valuation is not reasonably proximate to the distribution date,
“the court should hold another hearing to establish a valuation as close to the
effective date of the division as possible.” Id. at 644.
Yet such delay “is not, in itself, grounds for reversal; a party must show
that he or she was prejudiced as a result of the delay.” Marriage of Wood, 262
S.W.3d 267, 274 (Mo.App. 2008); see also Marriage of Foster, 391 S.W.3d
1 We deny Richard’s request to supplement the appellate record with information
never offered or considered in the trial court. Documents not considered by the
trial court or made part of its record “cannot be introduced into the record on
appeal, Winston v. Dir. of Revenue, 137 S.W.3d 502, 505 (Mo.App. E.D.2004),
and we cannot consider them, Southwestern Bell Media, Inc. v. Ross, 794 S.W.2d
706, 708 (Mo.App. E.D.1990).” In re J.M., 328 S.W.3d 466, 469 (Mo.App.
2010).
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500, 504 (Mo.App. 2013). Foster involved a two-year delay, due to interim legal
proceedings, between trial and the judgment on appeal. We rejected the
husband’s “stale values” complaint because he never offered evidence of values
more current. 391 S.W.3d at 503. “It is Husband who claims error in the stale
values and yet produced no evidence of a different value while the case was
pending before the trial court.” Id. at 504. “We do not assume that those values
were out of date. If Husband disagreed with the values from the first hearing, he
should have provided evidence to the trial court that contradicted those findings.”
Id.
Similarly, Richard complains that the Third Amended Judgment did not
cite “current” values, yet he offered no such proof. In 2013, he was still citing
2011 values, but apparently did not prove up even those.2 We will not convict a
trial court of error when a litigant with the opportunity and burden to show
current value failed to offer such evidence. Id. Point denied.3
2 As “proof” of June 2011 values, Richard cites an affidavit and attachments
twice-filed with the circuit clerk (in support of July 2011 and January 2013
motions; see timeline supra), without explaining why we should view this as
evidence. “Absent a stipulation of the parties, there is no authority for treating
affidavits as evidence.” Stanfill v. Stanfill, 505 S.W.2d 438, 439 (Mo.App.
1974) (financial information filed in connection with motion to modify); see also
Jhala v. Patel, 154 S.W.3d 12, 20 (Mo.App. 2004) (“Missouri courts have
consistently held without exception that in the absence of a stipulation of the
parties, there is no authority for admitting an affidavit as evidence at trial.”);
State v. Zimmerman, 886 S.W.2d 684, 691 (Mo.App. 1994) (absent
stipulation, affidavit is not to be treated as evidence).
3 Because we find no error, we need not consider whether Richard invited error
by representing to the court more than two years post-trial that property values
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Point II – Unvested Stock Rights
Richard challenges the division, as marital property, of his employee stock
rights granted prior to June 28, 2011, but not vesting until March 2012 and
March 2013. We summarize his two-step argument for reversal:
1. The marriage was dissolved when the initial judgment was entered
on June 28, 2011; and
2. Stock rights vesting after dissolution were Richard’s separate
property because he testified that they represented future
compensation, they were offered as an incentive to stay employed,
vesting was contingent on continuing employment, and the stock
was subject to significant pre-vesting restrictions.
Terry disagrees. She urges that the marriage continued until final
judgment (i.e., the Third Amended Judgment on March 12, 2013), by which date
all such rights had vested, or alternatively that these rights were marital property
in any event.
Given our standard of review, Point II fails even if Richard is correct about
when the marriage ended. We find guidance in Warner v. Warner, 46 S.W.3d
591 (Mo.App. 2001), where the husband likewise charged error in treating stock
options as marital property. He claimed, like Richard, that his stock rights were
for future services; they were to vest after dissolution; and their vesting, maturity,
and exercise were contingent on continued employment. Our Western District
had not changed drastically or could be determined by applying percentages, or
by claiming in the trial court that Gustin was distinguishable but urging the
contrary here.
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affirmed after an extended review of Missouri and out-of-state cases that we need
only summarize.
The options in Warner, as here, were acquired during marriage and not
by any method that would exempt them from marital property under
§452.330.2. Id. at 601. “Missouri courts have uniformly and without exception
held that property acquired during the marriage, including that acquired after the
filing of a dissolution action but before the entry of the dissolution decree, is
marital property.” Id.
Option awards are not always for future service; they may represent
compensation for past, present, or future services. Id. at 598-99 (citing In Re
Marriage of Hug, 154 Cal.App.3d 780, 786 (1984)).
Any argument that options could not be treated as marital property due to
contingencies was “discredited” by Missouri dissolution cases dealing with
pension plans. Id. at 596. Further Missouri precedent for treating contingent
options as marital property was found in Smith v. Smith, 682 S.W.2d 834
(Mo.App. 1984), where it was “held that all the employment stock options
granted to the husband during the marriage were marital property even though a
substantial portion of the options could not be exercised until after the
termination of the parties’ marriage and would be forfeited if the husband did not
continue his employment.” Warner, 46 S.W.3d at 600.
Ultimately, the Warner court concluded that “[t]he trial court applied the
law in a fashion consistent with Smith,” the record did not compel a finding “that
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the options were entirely related to future performance,” and it was presumed per
Rule 73 that the court found facts accordingly. Id. at 601, 602.4 “Accordingly,
the court could have reasonably found that the stock options were all marital
property subject to division.” Id. at 602.
What we have recited from Warner could be said and found here. The
trial court plainly rejected Richard’s testimony that his stock rights were future
compensation, as that court was entitled to do.5 Ruffino, 400 S.W.3d at 856. A
trial court abuses its broad discretion in identifying property as marital or
separate only when its ruling is so clearly illogical, arbitrary, unreasonable, and
ill-considered as to shock one’s sense of justice. See Coleman, 318 S.W.3d at
719-20. That is not the case here.6 We deny Point II.
4 “All fact issues upon which no specific findings are made shall be considered as
having been found in accordance with the result reached” in a bench-tried case.
Rule 73.01(c).
5 It seems worth noting that Richard’s stock award letters (1) describe the grants
in past tense and (2) indicate Richard’s right and ability to treat the grants as
current compensation. The award letter dated March 25, 2008, for example, tells
Richard that “[e]ffective March 13, 2008, you were granted 2,200 Restricted
Shares, which vest over a period of time,” and that “[y]ou may elect, at the time of
grant, to treat the fair market value of the restricted shares on the date of grant as
compensation income instead of the value on the date of the vesting period.”
6 This defeats, as well, Richard’s passing effort to characterize these rights as
post-dissolution income. At any rate, Richard’s reliance on Brill v. Brill, 65
S.W.3d 583 (Mo. App. 2002), is misplaced because the trial court in Brill
“expressly found the severance pay contract was a substitute for … future lost
wages and implicitly found it was not earnings for work performed during
marriage.” Id. at 587.
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Point III – Maintenance
That Richard leaves no stone unturned in attacking the award of
maintenance to Terry is seen in his complaint that the trial court “reduced the
maintenance award from $5,000 in the Second Amended Judgment to $4,500 in
the Third Amended Judgment,” but “did not give any reason or justification for
the reduction in the maintenance award” [our emphasis].
Suffice it to say, with one exception, that this and all of Richard’s
arguments fail in light of our standard of review. The trial court enjoyed “broad
discretion in awarding maintenance.” DiRusso v. DiRusso, 350 S.W.3d 464,
467 (Mo.App. 2011). “Unless the amount is patently unwarranted, or is wholly
beyond the means of the spouse who pays, interference by this court is
inappropriate.” McMullin v. McMullin, 926 S.W.2d 108, 112 (Mo.App. 1996),
quoted in DiRusso, 350 S.W.3d at 467. Richard’s burden is “to prove that the
maintenance award shocks the appellate court’s sense of justice.” DiRusso, 350
S.W.3d at 468. On this record, given Terry’s disability, $4,500 per month is not
shocking, patently unwarranted, or wholly beyond Richard’s ability to pay.
Yet remand is necessary in one respect. Terry concedes, to quote her brief,
“the trial court’s mathematical error of finding [her] needs to be $185.33 higher
than shown in its findings ….”7 Although we deny Point III in all other respects,
7 Richard’s motion to amend the Second Amended Judgment six weeks earlier
cited the same error. In our view, in this instance, Rule 78.07(c) did not require
yet another motion after the court refused or failed to correct this in its Third
Amended Judgment.
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we reverse the maintenance award as to this addition error and remand with
directions to correct it and to enter a judgment adjusting maintenance
accordingly, if appropriate.
Point IV – Attorney Fees
Richard claims Terry should be responsible for her post-trial legal expenses
which the court ordered Richard to pay. Richard decries these expenses as
unreasonable, unnecessary, and excessive.
The trial court is deemed an expert on necessity, reasonableness, and value
of attorney fees. Potts v. Potts, 303 S.W.3d 177, 196 (Mo.App. 2010). We
presume the court’s decision is correct; we will reverse only for abuse of
discretion. Id. Richard’s superior ability to pay may not compel an award of
attorney fees, but will suffice to support such an award. Id. at 191, 196.
The trial court received itemized bills from Terry’s attorney and Richard’s
brief pressing the same arguments that he raises here. Granting the trial court
due deference, we cannot say its attorney fee award was an abuse of discretion.
Point denied.
Conclusion
We grant Point III in part, but only with respect to the $185.33
mathematical error as conceded by Terry. We reverse the maintenance award
and remand with directions to correct this error and to enter a judgment
adjusting maintenance accordingly, if appropriate. Otherwise, we deny Point III
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and all other points. Except as stated above, we affirm the judgment in all
respects.
DANIEL E. SCOTT, J. – OPINION AUTHOR
NANCY STEFFEN RAHMEYER, P.J. – CONCURS
GARY W. LYNCH, J. – CONCURS
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