text:
    STATE of Missouri, Respondent, v. William C. CREAMER, Appellant.
    No. WD 63334.
    Missouri Court of Appeals, Western District.
    May 10, 2005.

      Ruth Sanders, Appellate Defender Office, Kansas City, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels and Richard Starnes, Office of Attorney General, Jefferson City, for respondent.
   RONALD R. HOLLIGER, Judge.

William Creamer appeals his conviction after jury trial of assault in the first-degree. He contends that the trial court plainly erred when it sua sponte set aside his previously accepted guilty plea to the reduced charge of second-degree assault based on statements he made in a pre-sentencing investigation (PSI) report. We agree, reverse his conviction for the offense of first-degree assault, and remand for sentencing on his guilty plea to second-degree assault.

Factual and Procedural Background

Creamer was originally indicted with the separate and unrelated offenses of first-degree assault and second-degree robbery. A plea agreement was reached which, in relevant part, would reduce the assault charge to the offense of assault in the second degree and he would plead guilty to attempted robbery. An amended information was filed prior to the plea hearing on March 3, 2003, in accordance with that agreement. The only other part of the plea agreement was that the sentences would run concurrently with each other but that the plea judge would have no restrictions regarding the available range of sentencing for either charge.

The robbery charge was resolved by a conventional guilty plea, while the assault charge plea was conducted as an Alford plea. Creamer admitted that, based upon the evidence the State could adduce, a jury could convict him of the more serious offense of assault in the first degree. He further testified that, based upon that risk, he believed that it was in his best interests to accept the offered plea agreement to the reduced charge of second-degree assault. At the conclusion of the plea proceedings, the trial court accepted Creamer’s pleas to both offenses without qualification and ordered the case set for sentencing on April 3, 2003. It also entered an order adjudging Creamer to be guilty of the crimes and ordering a pre-sentence investigation.

Creamer made statements to the official conducting the pre-sentence investigation that he did not commit either offense. During the sentencing hearing on April 3, the trial court sua sponte set aside Creamer’s guilty pleas to both the assault and robbery charges, stating:

I ordered a Presentence Investigation[J I’e received that Presentence Investigation and in reviewing that investigation!;,] you have taken the position adamantly with the probation officer who wrote this report that you are not guilty of either of these offenses.
In view of that position, this court is not willing to accept your pleas of guilty on either of these charges. If you are contending thát you are not guilty, you have the right to present that contention to either a jury of 12 people or to the Court in a trial where the State will be required to prove evidence that you are guilty beyond a reasonable doubt, and I am going to decline to accept a plea of guilty under these circumstances.

The State indicated on the record that it intended to file an amended information recharging Creamer with assault in the first degree. However, the State neither filed an amended information nor dismissed the information previously filed as part of the plea agreement. The trial for first-degree assault, therefore, took place with the last charging instrument being for second-degree assault.

The robbery charge was subsequently dismissed and Creamer proceeded to trial solely on the charge of first-degree assault. He was found guilty of that offense, and was subsequently sentenced to a term of ten years’ imprisonment. This appeal follows.

Discussion

Creamer presents four points on appeal. We find his second point to be dispositive. In that point on appeal, Creamer argues that the trial court plainly erred by setting aside his guilty plea to the offense of assault in the second degree, sua sponte, based upon statements that he did not commit either offense and that were made after acceptance of his plea and which were incorporated into the pre-sen-tence investigation report.

While Creamer raised this issue in his motion for new trial, he failed to bring a contemporaneous objection at the hearing on April 3 during which the court set his guilty plea aside. Thus, the issue has not been properly preserved for appeal, and we may reverse only if the trial court’s actions constituted plain error. State v. Pennington, 24 S.W.3d 185, 188 (Mo.App.2000). Pursuant to Rule 30.20, we may grant review for plain error if we find that the error resulted in a manifest injustice or a miscarriage of justice. See State v. DeWeese, 79 S.W.3d 456, 457 (Mo.App.2002).

Recitation of some basic principles relating to guilty pleas helps illuminate the issue. A defendant has no constitutional right to have his guilty pleas accepted. State v. Cotton, 621 S.W.2d 296, 301 (Mo.App.1981); State v. Banks, 135 S.W.3d 497, 500 (Mo.App.2004). For this reason, it is well settled that a trial court may exercise its sound discretion to reject a guilty plea. State v. Copeland, 928 S.W.2d 828, 840 (Mo. banc 1996). Nor is the court required to accept a plea bargain. State v. DeClue, 805 S.W.2d 253, 256 (Mo.App.1991).

The general requirements of a plea are that it be knowing and voluntary and that a sufficient factual basis be shown on the record to show guilt of the crime charged. Daniels v. State, 70 S.W.3d 457, 461 (Mo.App.2002). The defendant, however, need not establish that factual basis. In fact, a defendant who protests his innocence may still enter a valid guilty plea if done knowingly and voluntarily. State v. Hunter, 840 S.W.2d 850, 864 (Mo. banc 1992).

Once a defendant has made a guilty plea, he may seek its withdrawal before sentencing under Rule 29.07(d) and after sentencing only under Rule 24.035. A defendant may withdraw a guilty plea only after acceptance and before sentencing by persuading the court that the plea was involuntary. Moore v. State, 853 S.W.2d 378, 380 (Mo.App.1993). Mere change of heart or sudden protestations of innocence are not enough. In North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the United States Supreme Court approved the acceptance of a plea of guilty from a defendant who is unwilling or unable to admit participation in acts constituting the crime charged so long as the plea is knowingly and voluntarily entered and is supported by a strong factual basis. Scroggins v. State, 859 S.W.2d 704, 705 n. 2 (Mo.App.1993).

A court is no more required to accept an Alford plea than it is any other guilty plea. Nor is an Alford plea treated differently than a guilty plea where the accused admits the commission of the crime charged. Wilson v. State, 813 S.W.2d 833, 843 (Mo. banc 1991).

Significance of Acceptance of a Guilty Plea

Acceptance of the guilty plea typically occurs at the conclusion of the plea proceeding. Acceptance of the plea carries legal significance. First and foremost, the acceptance of a guilty plea waives all affirmative defenses and non-jurisdictional defenses the defendant could raise. See Hagan v. State, 836 S.W.2d 459, 461 (Mo. banc 1992) (quoting State v. Cody, 525 S.W.2d 333, 335 (Mo. banc 1975), overruled on other grounds by State v. Heslop, 842 5.W.2d 72, 74 (Mo. banc 1992)); Geren v. State, 473 S.W.2d 704, 707 (Mo.1971) (citing collected cases).

Up until acceptance of the guilty plea by the trial court, a defendant has unfettered latitude to withdraw his plea. Likewise, the trial court has virtually unlimited discretion prior to acceptance of the plea to refuse any plea of guilty outright or to reject any plea bargain between the State and the defendant. Ac-ceptancé of the plea, however, also places limits upon the trial court’s ability to set aside the plea.

Although this court has previously reasoned that “a defendant acquires no protected interest in a guilty plea accepted pending further proceedings in the case if subsequent developments indicate that either the court or the defendant erred in some material aspect of the initial plea tender and acceptance,” State v. Douglas, 622 S.W.2d 28, 30 (Mo.App.1981), that statement is necessarily tempered by the double jeopardy doctrine. Double jeopardy attaches upon the unqualified acceptance of a guilty plea. Peijfer v. State, 88 S.W.3d 439, 444 (Mo. banc 2002). This limits the circumstances under which a guilty plea may be properly set aside and the defendant subjected to trial for an offense. See id. at 445. Normally, the defendant initiates withdrawal of a guilty plea. The grounds under which a defendant can seek to have his guilty plea withdrawn are set out in Rule 29.07(d). Id.

There is no rule that expressly addresses the circumstances under which a trial court can order the withdrawal of a guilty plea on its own motion. However, given that double jeopardy attaches upon unqualified acceptance of the plea, some guidance may be provided by cases addressing double jeopardy in the trial context. Specifically, a court may declare a mistrial sua sponte and retry the defendant without violating the double jeopardy clause if the declaration of mistrial meets the “manifest necessity” doctrine. See State v. Smith, 988 S.W.2d 71, 80 (Mo.App. 1999). Put another way, a declaration of mistrial and subsequent retrial will not violate double jeopardy if justice would not have been served by continuation of the original proceedings. See id.

There are analogous circumstances in which the trial court can withdraw acceptance of a previously entered guilty plea. For example, it has been held that Rule 24.02(c) inferentially permits a trial court to take such action when it determines that a defendant’s guilty plea was unknowing or involuntary. Douglas, 622 S.W.2d at 30. In that circumstance, however, the basis for withdrawal of the plea must concern a material aspect of the, plea proceedings. See id.

Here, Creamer’s statements in the pre-sentence investigation do not raise questions concerning a material aspect of his Alford plea. The essence of the Alford plea is that the defendant does not admit to having committed the offense. In Alford, the Court stated, “while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understanding^ consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” 400 U.S. at 37, 91 S.Ct. 160 (italics added).

The factual basis of the Alford plea may consist of an admission of certain facts by the defendant pointing to his guilt supplemented by the State’s recitation of facts that would be proven at trial. See e.g., Nimrod v. State, 14 S.W.3d 103, 106 (Mo.App.2000). Ultimately, in deciding whether to accept an Alford plea, the trial court must determine that the “defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt.” Alford, 400 U.S. at 37, 91 S.Ct. 160. As there is no admission required by a defendant in making an Alford plea that he has actually committed the offense, we conclude that a subsequent statement by that defendant that he did not commit that offense is typically immaterial to the continued validity of an Alford plea.

Creamer cites to a number of cases in other jurisdictions that limit the power of courts to order withdrawn, sua sponte, guilty pleas that were made knowingly and voluntarily. See, e.g., State v. Comstock, 168 Wis.2d 915, 485 N.W.2d 354 (1992); Kurz v. Justices of the Supreme Court of New York, 228 A.D.2d 74, 654 N.Y.S.2d 783 (N.Y.App.Div.1997); and People v. Ford, 65 A.D.2d 822, 410 N.Y.S.2d 343 (N.Y.App.Div.1978). In Wisconsin, a court may set aside a knowingly and voluntarily made plea only upon a finding that the plea was procured by fraud or that material information was withheld that would have induced the court not to accept the plea. Comstock, 485 N.W.2d at 369-70. In New York, the court may set aside a plea for “fraud, misrepresentation, deceit, or trickery.” Kurz, 654 N.Y.S.2d at 785. While we do not have before us the question of whether such limits on the trial court’s authority are generally applicable in Missouri, we note that there is no indication in the record that Creamer’s Alford plea was fraudulent or that he deliberately withheld material information from the trial court.

Did the statement by Creamer contained within the pre-sentence investigation report that he believed himself to be innocent of the offense otherwise constitute a valid basis to order his plea withdrawn? The State contends that the trial court was placed in the position of being unable to reconcile the statements made by Creamer during plea proceedings and those made by him during the pre-sen-tence investigation. We do not believe that Creamer’s statements in those two settings are necessarily inconsistent. His statement to the investigator that he did not believe that he was guilty of the assault charge can be reconciled with his unwillingness during the plea hearing to admit guilt based upon his belief that he acted in self-defense. In any event, there is nothing in the record to indicate that the plea court confronted Creamer with these statements and further inquired of him in any respect whether his original plea was voluntary and whether he continued with his desire to plead guilty to the charge.

The State raises only one contention in its brief touching on whether the court could set aside the guilty plea on grounds that it was unknowing or involuntary. It claims that Creamer’s statement during the pre-sentence investigation suggests that the plea might have been coerced and involuntary. However, in oral argument the State abandoned this argument because it could point to nothing in the record to support that conclusion. The State recognized the inherent difficulty of supporting such an argument in a setting where the court had made no inquiry about the earlier plea’s voluntariness. Creamer’s statements, here, do not raise such an implication, nor did the trial court conduct any inquiry regarding such a concern prior to its order withdrawing the guilty plea. Simply put, Creamer’s statement referenced in the pre-sentence investigation does not raise any material questions that would justify withdrawal of his Alford plea on the assault charges on the basis of coercion or involuntariness of the plea.

Lastly, the State argues that withdrawing Creamer’s guilty plea was made necessary because his statements in the pre-sentence investigation constituted a breach of the plea agreement between him and the State. The essence of the State’s position was that, having pleaded to the offenses, he was barred from subsequently claiming that he was not guilty of those offenses. The difficulty with the State’s position is that there is no provision in the plea agreement, as presented in the record on appeal that would render such statements a breach of the agreement. Nor does the State present any legal basis for inferring such a requirement. We find this argument to be without merit.

To review, then, the trial court committed error in ordering Creamer’s guilty plea withdrawn on its own motion. An Alford plea may be accepted regardless of whether the defendant is unwilling to admit that he is guilty of the offense or even expressly denies guilt. Alford, 400 U.S. at 37, 91 S.Ct. 160. The trial court’s action in withdrawing Creamer’s plea and subsequently trying him on the offense of assault in the first degree constitutes obvious and clear error, thus meeting the first requirement for plain error relief pursuant to Rule 30.20.

Even if we find that the trial court committed plain error, we may reverse only if we conclude that the error resulted in a miscarriage of justice or a manifest injustice, which requires more than a mere showing that the defendant was prejudiced. ‘See State v. White, 92 S.W.3d 183, 189 (Mo.App.2002).’ The sua sponte withdrawal of Creamer’s guilty plea, here, resulted in his subsequently being tried and convicted of the more serious charge of assault in the first degree. On that charge, he was ordered to serve a sentence of ten years in prison. Under the plea agreement, Creamer was subject to a maximum sentence of seven years’ imprisonment, a significantly shorter period of incarceration. In addition, since jeopardy attached upon the trial court’s acceptance of Creamer’s Alford plea for the offense of second-degree assault, we have serious concerns that the subsequent trial constituted a violation of Creamer’s protections against double jeopardy under the Fifth and Fourteenth Amendments to the Constitution. The trial court’s actions resulted in a miscarriage of justice that can only be remedied by reversal of his conviction of the offense of.assault in the first degree.

We, therefore, grant Creamer’s second point on appeal. Finding that point to be dispositive, we need not address his remaining three points on appeal. We reverse Creamer’s conviction of first-degree assault and remand the matter with instructions to reinstate Creamer’s plea to the offense of second-degree assault and re-sentence him accordingly.

EDWIN H. SMITH, Chief Judge, and PAUL M. SPINDEN, Judge, concur.

      . The pleas judge was not the trial judge in this matter.

      . An Alford plea was made necessary as Creamer could not admit guilt as he was apparently unwilling to relinquish his claim that the assault was made in self-defense.

      .That situation forms the basis for one of Creamer’s other claims of error on appeal. We do not reach that issue.

      . If the plea agreement is rejected, the trial court must inform the defendant and the State that it will not be bound by the agreement, permit the defendant an opportunity to withdraw his plea, and advise the defendant that, if he persists in his plea, the outcome may be more unfavorable than would have been possible under the plea agreement. Rule 24.02(d)(4). We leave for another discussion the question of whether the State has a reciprocal right to back out of a plea agreement if the plea court rejects its terms.

      . The court is also empowered, when necessary to correct a manifest injustice, to set aside a judgment- of conviction previously entered and allow a defendant to withdraw his guilty plea. Rule 29.07(d).

      . We note, however, that Rule 24.02(d)(2) permits the plea court to defer the decision of whether or not to accept the plea until it has an opportunity to consider the pre-sentence investigation report. The plea court did not follow that procedure, here.

      . While remedies are available to the State upon a defendant’s breach of a plea agreement, see State v. White, 838 S.W.2d 140, 142 (Mo.App.1992), we need not discuss such remedies here, given that there has been no breach established.

      . Moreover, the State acquiesced in moving forward with the plea proceedings for the assault charge as an Alford plea. It would be inconsistent to infer that it would be a breach of the plea agreement to subsequently claim that he did not commit that offense when he was not required to admit having committed the offense during the plea proceeding itself.


source: Caselaw Access Project

author: EDWIN H. SMITH, Chief Judge.

license: Public Domain

text:
    Charles Robert PENISTON, Appellant, v. Catherine Hope PENISTON, Respondent.
    No. WD 63521.
    Missouri Court of Appeals, Western District.
    May 10, 2005.

      Craig D. Ritchie and Tara J. Cluck, Saint Joseph, MO, for appellant.
    David P. Macoubrie and Danette L. Rar-don, Chillicothe, MO, for respondent.
    Before: EDWIN H. SMITH, C.J., and HOWARD and NEWTON, JJ.
   EDWIN H. SMITH, Chief Judge.

Charles Peniston appeals the judgment of the Circuit Court of Livingston County dissolving his marriage to the respondent, Catherine Peniston, with respect to its awards of visitation and child support concerning the parties’ minor child, Robert.

The appellant raises three points on appeal. In Point I, he claims that the trial court erred in awarding him visitation with Robert because the court’s award was not reasonable, as required by § 452.400.1. In Point II, he claims that the trial court erred in awarding the respondent child support for Robert in the presumed child support amount (PCSA) of $428 per month, as calculated pursuant to the respondent’s Form 14, imputing gross monthly income to the appellant, because the imputation of income was not supported by the record. In Point III, he claims that the trial court erred in awarding the respondent retroactive child support of $3,789 because that amount was predicated on the court’s award of monthly child support, which he challenges in Point II as being erroneous.

We affirm.

Facts

The parties were married on May 21, 1995, in Chillicothe, Missouri, and separated on August 19, 2002. One child was born of the marriage, Robert Peniston, born December 5,1994.

On August 23, 2002, the appellant filed a petition for dissolution of marriage in the Circuit Court of Livingston County. The respondent filed her answer and cross-petition on September 20, 2002. In his petition, the appellant sought joint legal and physical custody of Robert, while the respondent, in her cross-petition, sought joint legal and sole physical custody.

Before trial, both parties filed their income and expense statements. In his statement, filed on March 4, 2003, the appellant listed his gross monthly income as $2,635.53. On June 10, 2003, the parties’ petitions were taken up and heard. With respect to child support, the appellant testified that he had been self-employed for approximately four years, working as an auctioneer,- farmer, and dog breeder, and that for a two-month period in early 2003 he was employed as a temporary truck driver. He further testified that when he filed his original income and expense statement, he was working as a temporary truck driver; but that employment had ceased at the time of trial. Accordingly, with leave of court, he amended his income and expense statement to exclude the compensation he was receiving from his temporary employment as a truck driver, resulting in gross monthly income of $1,500. The amended statement was admitted at trial. The appellant testified that, although he was not actually making $1,500 per month, he believed he could. The respondent testified that the parties’ commercial dog kennel alone, which was awarded to the appellant as marital property, was capable of producing approximately $40,000 of annual income.

On July 11, 2003, the trial court entered its judgment of dissolution. As to custody, the court ordered that the parties were to have joint legal custody and that the respondent was to have “primary physical custody.” In addition, the court ordered that the appellant have visitation with Robert: (1) the first weekend of each month; (2) three separate two-week increments during the summer, for a total of six weeks; (3) Father’s Day; (4) alternating holidays; and (5) alternating birthdays. As to child support, the appellant was ordered to pay the respondent $428 per month. In calculating its award, the trial court accepted the respondent’s Form 14, which, as to the appellant’s gross monthly income, reflected a figure of $2,635.53. In addition, the court awarded the respondent retroactive child support of $3,789, based on its award of $428 in monthly child support.

On August 8, 2008, the appellant filed a “MOTION TO RECONSIDER VISITATION AND CHILD SUPPORT AMOUNT, OR IN THE ALTERNATIVE, MOTION FOR A NEW TRIAL,” which was taken up and heard on September 22, 2003. On October 21, 2008, the trial court entered an amended judgment, which expanded the appellant’s visitation rights to include Wednesday evenings.

This appeal followed.

I.

In Point I, the appellant claims that the trial court erred in awarding him visitation with Robert because the court’s award was not reasonable, as required by § 452.400.1. Specifically, he claims that the trial court’s award of visitation was unreasonable in that it failed to provide him with alternating weekend visitation. We disagree.

Before addressing the merits of the appellant’s claim, we must first address a misnomer in the trial court’s judgment. In that regard, with respect to custody, the judgment provides: “The court finds that it is in the best interest of the child for the parties to be awarded joint legal custody of the minor child, with [the respondent] being awarded primary physical custody of the minor child. [The appellant] shall have visitation at all reasonable and proper times and as set forth herein.” As we explained, however, in Loumiet v. Loumiet, 103 S.W.3d 332, 338-39 (Mo.App. 2003), § 452.375, which governs child custody, speaks only in terms of joint or sole physical custody, such that the term “primary physical custody” should be avoided. Thus, inasmuch as the appellant was awarded visitation rights, it is clear that what the trial court intended was for the respondent to have sole physical custody.

In claiming as he does in this point, the appellant is challenging the trial court’s application of the law, claiming that the court misapplied § 452.400.1 by not awarding him reasonable visitation. Where a misapplication of law is asserted, we review de novo. Jackson v. Mills, 142 S.W.3d 237, 240 (Mo.App.2004).

In awarding the appellant visitation with Robert, the trial court ordered that he have unsupervised visitation: (1) the first weekend of each month from Friday at 6:00 p.m. to Sunday at 6:00 p.m.; (2) every Wednesday evening from 4:00 p.m. to 8:00 p.m.; (3) three separate two-week increments during the summer, for a total of six weeks; (4) Father’s Day; (5) alternating holidays, including Easter, Memorial Day, Labor Day, July 4th, Labor Day, Thanksgiving, and Christmas; and (6) alternating birthdays. The appellant claims that this schedule of visitation is not reasonable, as a matter of law, in that it does not include alternating weekends. He contends that, as a matter of law, for an order of visitation to be reasonable, under § 452.400.1, it must include visitation on alternate weekends, citing Siegenthaler v. Siegenthaler, 761 S.W.2d 262 (Mo.App.1988).

In Siegenthaler, the appellant-father claimed, inter alia, that the trial court’s visitation order was in error. Id. at 266. After reciting the trial court’s visitation order, the Eastern District of this court, without any analysis of applicable statutes or case law, stated: “This court believes that the welfare of the children requires some other disposition.” Id. The court then proceeded to set out a modified visitation schedule to be followed. The modified visitation schedule provided, as did the original schedule, that the appellant was to have visitation “on two weekends per month.” It did not provide for alternating weekends as the appellant argues here. In any event, the issue of whether visitation on alternating weekends is required to constitute a reasonable order of visitation, under § 452.400.1, was not presented to the court. Hence, Siegenthaler cannot be cited for the proposition that there is some minimum standard of visitation that must be awarded in order to constitute reasonable visitation under the statute. As the Eastern District subsequently recognized in Rothfuss v. Whalen, 812 S.W.2d 232, 235 (Mo.App.1991), the custody decision in Siegenthaler was not a determination of the “minimally appropriate” visitation to be awarded. Rather, the “custody decision in Siegenthaler was based upon the determination that, upon the particular facts of the case, the welfare of the children required a disposition different from the one entered by the trial court.” Id. This is consistent with the statutory scheme for determining custody and visitation.

Section 452.400.1, which governs initial determinations of visitation, provides, in pertinent part, that: “A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger the child’s physical health or impair his or her emotional development.” Unlike § 452.375.2, governing initial determinations of custody, § 452.400.1 does not require that visitation be determined in accordance with the best interests of the child. However, case law has imposed this requirement. Scott v. Scott, 147 S.W.3d 887, 898 (Mo.App.2004) (citing Searcy v. Searcy, 38 S.W.3d 462, 469 (Mo.App.2001)). And, while the case law does require that visitation be determined in accordance with the best interests of the child, it does not set forth the factors that are to be considered by the trial court in determining a child’s best interests for purposes of an initial order of visitation. Case law does, however, provide that the best interests factors of § 452.375.2 are to be considered when determining a child’s best interests for purposes of modifying a visitation order. Baker v. Welbom, 77 S.W.3d 711, 720 (Mo.App.2002). Logically then, those same factors would have to be considered in determining a child’s best interests for purposes of an initial order of visitation.

Having determined that each order of initial visitation, like a modification of visitation, must be determined in accordance with the best interests of the child, after considering all relevant factors, including those set forth in § 452.375.2, there logically would not be a minimum amount of visitation that would have to be awarded to be considered reasonable, satisfying § 452.400.1. Rather, the reasonableness of each order must turn on its own facts and circumstances, when considered in light of all relevant factors, including those found in § 452.375.2, with no set formula for applying those factors. See Kennedy v. Kennedy, 969 S.W.2d 310, 313 (Mo.App.1998) (explaining that there is no set formula for applying the factors of § 452.375.2).

Given the foregoing, the appellant’s claim that the trial court’s visitation award was. unreasonable because it violated § 452.400.1 in that it did not include alternate weekends is without merit.

Point denied.

II.

In Point II, the appellant claims that the trial court erred in awarding the respondent child support for Robert in the presumed child support amount (PCSA) of $428 per month, as calculated pursuant to the respondent’s Form 14, imputing gross monthly income to the appellant, because the imputation of income was not supported by the record. Specifically, he claims that the record did not support the imputation of income in that the only evidence in the case on the issue demonstrated that the “short, [temporary] job [in which the imputation of income was based] had terminated” prior to trial.

Our standard of review, with respect to child support rulings, is set forth in Conrad v. Conrad, 76 S.W.3d 305, 308 (Mo.App.2002) (footnotes and internal citations omitted):

In determining an award of child support in any proceeding, § 452.340.8 and Rule 88.01 require the trial court to follow the two-step procedure set forth in Woolridge v. Woolridge, 915 S.W.2d 372, 379 (Mo.App.1996), which was approved by the Missouri Supreme Court in Neal v. Neal, 941 S.W.2d 501, 504 (Mo. banc 1997). In the first step, the trial court must determine and find for the record the PCSA in accordance with Form 14. This required determination and finding can be done by the trial court’s either accepting for the record a Form 14 calculation of one of the parties, or in the event the court “rejects” their Form 14 calculations as being incorrect, by doing its own Form 14 calculation. 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 or by articulating on the record how it calculated its Form 14 amount. In the second step, the court, after considering all relevant factors, must determine whether to rebut the PCSA as being unjust or inappropriate. Our review then of an award of child support is essentially one of the trial court’s application of the two-step Wool-ridge procedure, applying the standard enunciated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Hence, in reviewing an award of child support, we review the award, in light of the trial court’s application of the Woolridge procedure, to determine whether it is suported by. substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. After reviewing and determining that the trial court’s application of the Woolridge procedure passes the Murphy v. Carrón standard, we then review for an abuse of discretion with respect to the trial court’s rebuttal review of its PCSA calculation.

In determining its child support award, the trial court, as to the first step of the Woolridge procedure, accepted the respondent’s Form 14, and, as to the second step, chose not to rebut the PCSA as unjust and inappropriate. With respect to the appellant’s gross monthly income, the respondent’s Form 14 reflected the amount of $2,635.53. In that regard, the court, in its judgment, stated: “The Court imputes income in the amount of $2,635.53 a month to [the appellant], the amount [he] submitted as his income on his original Income and Expense Statement,” which was filed by the appellant on March 4, 2003. The question is whether this amount was supported by the record.

It is well settled in the law that a parent will not be permitted to escape his responsibility to support his children by deliberately limiting his work in order to reduce income. Williams v. Williams, 55 S.W.3d 405, 414 (Mo.App.2001); Haden v. Riou, 37 S.W.3d 854, 861 (Mo.App.2001); Davis v. Dep’t of Soc. Servs., 21 S.W.3d 140, 141 (Mo.App.2000); Perkins v. Perkins, 21 S.W.3d 184, 186 (Mo.App.2000); Smith v. Smith, 969 S.W.2d 856, 858 (Mo.App.1998); Silverstein v. Silverstein, 943 S.W.2d 300, 302 (Mo.App.1997); Walker v. Walker, 936 S.W.2d 244, 247 (Mo.App.1996); Hansen v. Phenicie, 917 S.W.2d 618, 619 (Mo.App.1996); Jensen v. Jensen, 877 S.W.2d 131, 136 (Mo.App.1994). To prevent a parent from avoiding his responsibility to support his children, a trial court may, in proper circumstances, impute income to the parent in determining the court’s child support award, based on what the parent could earn by using his best efforts. Williams, 55 S.W.3d at 414; Haden, 37 S.W.3d at 861; Perkins, 21 S.W.3d at 186; Silverstein, 943 S.W.2d at 302; Walker, 936 S.W.2d at 247; Jensen, 877 S.W.2d at 136. “However, it is axiomatic that there must be evidence to support a finding that the parent is deliberately limiting his or her work to reduce income before it is appropriate to impute income.” Davis, 21 S.W.3d at 141. In other words, “[c]ourts should not impute income where the record does not establish an attempt to evade parental responsibilities.” Smith, 969 S.W.2d at 859. What constitutes appropriate circumstances to impute income will depend on the facts of the individual case and are to be determined on a case-by-case basis. Id.; Perkins, 21 S.W.3d at 186.

Line 1: Gross Income of Form No. 14, DIRECTIONS, COMMENTS FOR USE AND EXAMPLES FOR COMPLETION OF FORM NO. 14, provides, in pertinent part, that income may be imputed “[i]f a parent is unemployed or found to be underemployed.” Proper circumstances for imputing income, in determining child support, include both voluntary and involuntary reductions of income by a parent’s being unemployed or underemployed. Walker, 936 S.W.2d at 247-48. Imputation of income is proper where a parent has voluntarily reduced his or her income without justification. Perkins, 21 S.W.3d at 186; Hansen, 917 S.W.2d at 619; Walker, 936 S.W.2d at 247; Jensen, 877 S.W.2d at 136. The most common scenario for voluntary reduction of income without justification is where a parent deliberately quits work to reduce his or her child support. Hansen, 917 S.W.2d at 619; Jensen, 877 S.W.2d at 136. Imputation of income is also appropriate where the parent voluntarily reduces his or her income with justification, but only if the evidence shows that the parent had failed to use his or her best efforts to obtain new employment. Perkins, 21 S.W.3d at 186; Silver-stein, 943 S.W.2d at 302. Likewise, an imputation of income is proper on that same showing where a parent has had his or her income involuntarily reduced, which would include termination of employment. Silverstein, 943 S.W.2d at 302; Walker, 936 S.W.2d at 247-48.

As to the appellant’s income, the evidence was that he had been self-employed for approximately four years, working as an auctioneer, farmer, and dog breeder, and that, for a two-month period in early 2003, he was employed as a temporary truck driver. The exact amount of his actual income at the time of trial, June 10, 2003, was unclear; however, it was clear that, during the two-month period in which the appellant was self-employed and working as a truck driver, his gross monthly income reached $2,635.53, as indicated on his income and expense statement of March 4, 2003. Hence, by accepting the respondent’s Form 14, which listed the appellant’s gross monthly income as $2,635.53, the trial court determined that the appellant was underemployed, and that, through his best efforts, he could realize a gross monthly income of $2,635.53.

In determining the appropriate circumstances to impute income, Comment H of Line 1: Gross income provides:

When determining whether to include imputed income and, if so, the amount to include in a parent’s ‘gross income,’ a court or administrative agency shall consider all relevant factors, including:
(1) The parent’s probable earnings based on the parent’s work history during the three years, or such time period as may be appropriate, immediately before the beginning of the proceeding and during any other relevant time periods;
(2) The parent’s occupational qualifications;
(3) The parent’s employment potential;
(4) The available job opportunities in the community; and
(5) Whether the parent is custodian of a child whose condition or circumstances make it appropriate that the parent not be required to seek employment outside the home.

Pursuant to the express terms of Comment H, these factors are to be considered not only in determining “whether to include imputed income,” but the “amount” to impute. And, inasmuch as Comment H requires that “all relevant factors” are to be considered in determining whether to impute income and in what amount, the factors expressly stated in the comment are not exhaustive. Thus, in deciding whether the record here supports the trial court’s imputation of income, the question is whether there is sufficient evidence in the record from which the trial court could find, in light of all relevant factors, including those set out in Comment H, that the appellant was capable of realizing, through his best efforts, gross monthly income of $2,635.53.

In claiming that the record is insufficient to support an imputation of income to him in the amount of $2,635.53, the appellant points to the fact that the temporary job which boosted his income to that figure had terminated and no evidence was presented at trial demonstrating that he would be able to obtain a similar permanent position. The respondent concedes that the record is devoid of any evidence demonstrating that the appellant would be able to obtain a permanent truck driving position, but nonetheless contends that the record is sufficient to support the eourt’s imputation of income. In that regard, she points to the parties’ commercial dog kennel, which the trial court, in dividing the parties’ marital property, awarded to the appellant.

At trial, the respondent testified that the parties’ commercial dog kennel was capable of producing approximately $40,000 of annual income. Specifically, she testified that:

Q. If the Court set over to you the kennel and all the dogs, could we show your income at $40,000? Can you make 40,000 running the kennel?
A. If you have all of those dogs and you are able to do the paperwork and — and be able to get them to the broker and do all of those things like that, yes, you can. There’s— there’s an ability to make money off of it.
Q. Are you capable of doing that?
A. Sure.

In support of her testimony, the respondent introduced into evidence a copy of a document, the original of which was prepared by the appellant, estimating the kennel was capable of producing $40,012.65 in annual income. When questioned about this document on cross-examination, the appellant testified as follows:

Q. Okay. And [the document is] what you gave to the banker as showing income that you were going to be making?
A. Projected that I possibly could make.

He further stated: “All of that ... was projected what I thought I could make[,] ... it had nothing to do with what I was making.” Hence, the appellant essentially admitted at trial that he believed the kennel was capable of realizing annual income of at least $40,000.

The appellant’s admission that the kennel was capable of realizing annual income of at least $40,000, combined with the undisputed fact that the appellant was awarded the kennel in the property division, in and of itself justifies the trial court’s imputation of income to the appellant in the amount of $2,635.53 per month, or $31,626.36 annually. In other words, the fact that the record is devoid of any evidence demonstrating that the appellant would be able to obtain a permanent truck driving position, which the appellant’s claim of error is based upon, does not justify reversal of the trial court’s imputation of income to the appellant. Whether or not the appellant can realize gross monthly income of $2,635.53 by obtaining a permanent truck driving position is of no consequence inasmuch as the record would support the fact that he could do so by simply maximizing the utility of the commercial dog kennel he was awarded in the court’s property division. Hence, the trial court did not err in awarding the respondent child support in the PCSA of $428 per month based on imputed gross monthly income of $2,635.53.

Point denied.

III.

In Point III, the appellant claims that the trial court erred in awarding the respondent retroactive child support of $3,789 because that amount was predicated on the court’s award of monthly child support, which he challenges in Point II as being erroneous. Given the fact that we rule against the appellant in Point II, finding that the trial court’s award of monthly child support is not in error, this point must fail as well. Hence, the trial court did not err in awarding the respondent retroactive child support of $3,789.

Point denied.

Conclusion

The judgment of the circuit court dissolving the parties’ marriage is affirmed in all respects.

HOWARD and NEWTON, JJ., concur.

      . All statutory references are to RSMo 2000, unless otherwise indicated.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Fernando ALONSO, Appellant.
    No. WD 63654.
    Missouri Court of Appeals, Western District.
    May 10, 2005.
    Margaret Mueller Johnston, Columbia, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

Fernando Alonso appeals his conviction and sentence for the class C felony of possession of a controlled substance in a correctional center, under section 217.360, RSMo 2000. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. 30.25(b). Rule


text:
    STATE of Missouri, Respondent, v. William G. CARTER, Appellant.
    No. WD 63798.
    Missouri Court of Appeals, Western District.
    May 10, 2005.
    Irene C. Earns, Assistant State Public Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Bruce E. Hahn, Assistant Attorney General, Kansas City, MO, for Respondent.
    Before EDWIN H. SMITH, C.J., and HOLLIGER and HARDWICK, JJ.
   Order

PER CURIAM.

Pursuant to § 512.020(5), William G. Carter appeals the order of the Circuit Court of Adair County, the committing court, denying his § 552.040.10 application for conditional release from the custody of the Missouri Department of Mental Health (DMH). On January 21, 2002, the State accepted the appellant’s plea of not guilty by reason of mental disease or defect excluding responsibility, pursuant to § 552.030.2, to the charges of forcible sodomy, § 566.060; kidnapping, § 565.110; burglary in the first degree, § 569.160; felonious restraint, § 565.120; and deviate sexual assault, § 566.070. The appellant was committed to the custody of the DMH, in accordance with § 552.040.

In his sole point on appeal, the appellant claims that the committing court erred in denying his oral motion for a continuance of his § 552.040.10 application hearing because the court violated his due process rights by “depriv[ing] him of a meaningful opportunity to prove his suitability for release.”

We affirm pursuant to Rule 84.16(b).


author: SHARON G. LEE, J„

text:
    Kelly Darlene STINSON v. Warren Kent STINSON.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Sept. 20, 2004 Session.
    Oct. 25, 2004.
    Permission to Appeal Denied by Supreme Court March 21, 2005.

      Douglas R. Beier, Morristown, Tennessee, for the Appellant, Warren Kent Stin-son.
    Edward R. Sempkowski, Morristown, Tennessee, for the Appellee, Kelly Darlene Stinson.
   OPINION

SHARON G. LEE, J„

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J. and CHARLES D. SUSANO, JR., J., joined.

In this divorce case Husband contends that the trial court erred in awarding Wife spousal support in the amount of $8,500.00 per month for a period of 15 years, in its division of marital assets consisting of dental equipment and contributions to a retirement plan, in assessing the value of certain personal property distributed between the parties, and in awarding attorney’s fees to Wife. We affirm as modified the trial court’s award of spousal support and assessment of the value of the parties’ marital property. We otherwise affirm the judgment of the trial court as rendered and remand.

Appellant Husband, Warren Kent Stin-son, and Appellee Wife, Kelly Darlene Stinson, were married in August of 1988. Following the marriage, Husband worked as a dentist and maintained a successful practice. Wife worked as a nurse until the birth of the parties’ second child in 1994. After the birth of the second child, Wife worked on a part-time basis. The parties began experiencing marital problems in the early to mid-1990’s. After Wife filed for divorce in 1999, the parties reconciled but separated in October of 2000. Subsequently, the parties reached an agreement concerning their children and in May of 2003, the trial court approved parenting plans submitted with respect to the parties’ two minor children pursuant to which it was agreed that Wife would have primary residential care of Joel, who was nine years of age at the time of trial, and Husband would have primary residential care of Ethan, who was twelve years of age at the time of trial. During the trial of this case, which commenced on May 5, 2003 and ended on May 14, 2003, the court heard extensive testimony regarding the grounds for divorce, which included adultery, mental abuse, physical abuse, and excessive use of alcohol and drugs. At the time of the trial, Husband was living with his girlfriend, who also served as his dental assistant. On July 10, 2003, the trial court entered its judgment granting Wife an absolute divorce on grounds of adultery, awarding her spousal support in the amount of $8,500.00 per month for fifteen years, and partial reimbursement of attorney’s fees incurred by her in prosecution of the divorce. The trial court also assessed the value of items of property belonging to the parties, designated such property as either “marital” or “separate”, and distributed it accordingly. Husband appealed the trial court’s decision.

Husband presents the following four issues for our review:

1) Did the trial court err in awarding Wife spousal support in the amount of $8,500.00 per month for fifteen years?

2) Did the trial court err in its division of the parties’ assets with regard to dental equipment and $73,955.00 representing contributions to Husband’s retirement plan?

3) Did the trial court err in assessing the value of marital furniture/furnishings and a 1994 Sea Ray boat?

4) Did the trial court err in awarding Wife partial reimbursement of her attorney’s fees?

Our standard of review in this non-jury case is de novo upon the record of the proceedings below and there is no presumption of correctness with respect to the trial court’s conclusions of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996) and T.R.A.P. 13(d). The trial court’s factual findings are, however, presumed to be correct and we must affirm such findings absent evidence preponderating to the contrary. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). “On an issue which hinges on the credibility of witnesses, the trial court will not be reversed unless there is found in the record clear, concrete, and convincing evidence other than the oral testimony of witnesses which contradict the trial court’s findings.” Galbreath v. Harris, 811 S.W.2d 88, 91 (Tenn.Ct.App.1990), citing Tennessee Valley Kaolin Corp. v. Perry, 526 S.W.2d 488, 490 (Tenn.Ct.App.1974).

The first issue raised by Husband is whether the trial court erred in awarding Wife spousal support in the amount of $8,500.00 per month for fifteen years. In addressing this issue, we are cognizant that a trial court has wide discretion with respect to alimony and we are generally disinclined to alter a trial court’s decision in that regard. Robertson v. Robertson, 76 S.W.3d 337, 342 (Tenn.2002).

In reaching a conclusion as to the nature, amount and length of term of spousal support a party should receive, a trial court is required to consider all relevant factors set forth at Tenn.Code Ann. § 36-5-101(d)(1) which are, in this case, as follows:

(i) The relative earning capacity, obligations, needs, and financial resources of each party including income from pension, profit sharing or retirement plans and all other sources;
(ii) The relative education and training of each party, the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training to improve such party’s earning capacity to a reasonable level;
(iii) The duration of the marriage;
(iv) The age and mental condition of each party;
(v) The physical condition of each party; including, but not limited to, physical disability or incapacity due to a chronic debilitating disease;
(vi) The extent to which it would be undesirable for a party to seek employment outside the home because such party will be custodian of a minor child of the marriage;
(vii) The separate assets of each party, both real and personal, tangible and intangible;
(viii) The provisions made with regard to the marital property as defined in § 36-4-121;
(ix) The standard of living of the parties established during the marriage;
(x) The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party;
(xi) The relative fault of the parties in cases where the court, in its discretion, deems it appropriate to do so; and
(xii) Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

While a trial court should consider each of the above factors relevant under the circumstances, the two most important factors to be considered in awarding spousal support are need of the disadvantaged spouse and the obligor spouse’s ability to pay. Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn.2001).

In its memorandum opinion, the trial court cites both the above statute and relevant case law it considered in reaching its determination regarding support due to Wife and its final judgment states, inter alia, as follows:

In the case at bar, the evidence supports a finding that for 2002, Defendant/Husband enjoyed an adjusted gross income of approximately $400,000. Working part-time as a Registered Nurse, PlaintiffWife in 2002 enjoyed a gross annual income of approximately $30,000. The parties’ income and assets will not be sufficient for them to achieve the same standard of living after the divorce that they enjoyed during the marriage. PlaintiffWife, as a disadvantaged spouse, does not need further education or training. The evidence supports a finding that for her, economic rehabilitation is not feasible and therefore, long term support is necessary. Her need to work part time so as to provide necessary and appropriate parenting care for the minor child residing with her is another significant consideration. All relevant factors, including those elucidated in T.C.A. 36 — 5—101(d)(1) have been considered to determine the nature and extent of spousal support. With the primary factors of the need of the disadvantaged spouse and the obli-gor spouse’s ability to pay having been considered, the circumstances of the instant action warrant long term spousal support. As such, this Court orders that Defendant/Husband pay to Plaintiff/Wife the amount of $8,500.00 per month as spousal support for a period of fifteen (15) years.

In its memorandum opinion and final judgment, the trial court offered a detailed statement of the grounds for its decision as to the award of spousal support. Our review of the record confirms that the trial court considered all of those factors it was obligated to consider in reaching that decision. However, we respectfully disagree that the evidence presented in this case supports the amount of support awarded Wife in this case.

The trial court’s order and memorandum opinion indicate that the primary factors underlying the court’s decision as to the support award were the inadequacy of Wife’s current part time employment income of $30,000.00 and her inability to work full time because of-the responsibility she has “to provide necessary and appropriate parenting care for the minor child residing with her.” At the time of trial, the minor child residing with Wife was nine years of age. We do not disagree that, at the present time and for some period of time in the future, the care and attention Joel will require from his mother could prevent her from engaging in full time employment. However, as Joel grows older and increasingly more independent, the amount of care and attention he will require of his mother will inevitably diminish and she will have proportionately more time to work and, thereby, increase her income. We further observe that, although the trial court decrees that the support award shall continue for fifteen years, in 2012, which is only eight years away, Joel will have reached the age of majority.

The record shows that Wife has a bachelor of science degree in nursing and is a registered nurse with fifteen years of experience in the area of her specialty which is labor and delivery. As the trial court noted, Wife is not in need of further education or training. In her brief, Wife states that “[sjhe’s a good delivery nurse.” We find nothing in the evidence before us to show that Wife could not obtain full time employment in her profession should she choose to do so.

Recognizing that need is one of the two most important factors in awarding spousal support, we conclude that the trial court’s award of spousal support in the amount of $8,500.00 per month for fifteen years is excessive and ■ unwarranted. Wife’s affidavit, filed on March 31, 2004, states that her monthly expenses total $8,457.86. Of this amount, $500.00, or approximately fourteen percent, is unsubstantiated and designated “miscellaneous.” Wife’s speculation at trial that her expenses “might even double” if she buys a house is also not clearly substantiated— ‘Well, the water bill would go up. The insurance would go up substantially. The rent....” Taking into consideration the amount of Wife’s stated expenses and her prospects for full time employment when her son grows older, we find that modification of the tidal court’s support award is appropriate. Accordingly, we modify the support awarded Wife such that she shall be granted support for a period of ten years from the date of divorce. Such support shall be paid by Husband in the amount of $7,500.00 per month for the first five years of that period of time and in the amount of $6,500.00 per month thereafter and shall terminate prior to expiration of the ten year period in the event of Wife’s death or re-marriage. Even as decreased, this award of support will exceed Wife’s stated expenses by at least $8,000.00 per month and will be reasonably sufficient to meet her needs.

The second issue we address is whether the trial court erred in its division of marital assets with respect to $73,955.00 representing contributions to Husband’s retirement plan and dental equipment.

Tenn.Code Ann. § 36-4-121(c) provides that the court shall consider the following factors in making an equitable distribution of marital property:

(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;
(3) The tangible or intangible contribution by one (1) party to the education, training or increased earning power of the other party;
(4) The relative ability of each party for future acquisitions of capital assets and income;
(5) The contribution of each party to the acquisition, preservation, appreciation, depreciation or dissipation of the marital or separate property, including the contribution of a party to the marriage as homemaker, wage earner or parent, with the contribution of a party as homemaker or wage earner to be given the same weight if each party has fulfilled its role.
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division of property is to become effective.
(9) The tax consequences to each party, costs associated with the reasonably foreseeable sale of the asset, and other reasonably foreseeable expenses associated with the asset;
(10) The amount of social security benefits available to each spouse; and
(11) Such other factors as are necessary to consider the equities between the parties.

A trial court is allowed wide latitude in determining an equitable division of marital property and we will defer to the trial court’s determination unless it is inconsistent with the factors set forth above or there is a preponderance of evidence to the contrary. Barnhill v. Barnhill, 826 S.W.2d 443 (Tenn.Ct.App.1991).

The division of the marital estate begins with the classification of the parties’ property as either “maiital” or “separate.” McClellan v. McClellan, 873 S.W.2d 350, 351 (1993). Tenn.Code Ann. § 36-4-121 sets forth the definition of marital property. “Generally speaking property that is acquired during a marriage by either or both spouses and still owned by either or both spouses when the divorce is granted is classified as marital property and is thus subject to equitable division.” Humphries v. Humphries, 2001 WL 825986 (Tenn.Ct. App.2001) at *3.

We first address Husband’s argument that the trial court should not have awarded Wife an interest in $73,955.00 consisting of contributions made to his retirement plan. This plan is held at Home Federal Bank which holds title over the plan assets as trustee. The plan is administered by Husband’s father, Dr. Robert Stinson. At the time of trial, Husband’s retirement plan was valued at $512,779.00.

The trial court decreed that the total value of real and personal marital property in the amount of $1,142,706.00 be equally divided between the parties with each receiving assets valued at $571,353.00. With respect to the $512,779.00 value assigned to Husband’s retirement plan, Wife received $460,694.00 and Husband received $52,085.00.

Husband asserts that the total value of the retirement plan is attributable in part to $73,955.00 in contributions made to the plan after Wife filed her complaint for divorce on March 11, 1999. Husband acknowledges that the court must classify property as “marital” if it is acquired by either or both spouses during the course of the marriage up to the date of the, final divorce hearing, citing Jennette v. Jennette, 1999 WL 732519 (Tenn.Ct.App.1999) at *1. While Husband admits that the $73,955.00 is marital property, he contends that under the circumstances of this case it is inequitable for Wife to be awarded an interest in same. As grounds for this argument, Husband asserts that during the time these contributions were being made he was making payments of $4,000.00 per month under a pendente lite order entered in the case and was making installment payments on her vehicle in the amount of $900.00 per month. Husband further asserts that Wife admitted at trial that she wasn’t in the home during the time the $73,955.00 was contributed to the plan and that she had nothing to do with contributions made to the plan during the last four years.

TenmCode Ann. 36 — 4—121(c)(5) as set forth above provides that, in making an equitable division of marital property, the court may consider the contribution of each party to the acquisition or appreciation of the property, “including the contribution óf a party to the marriage as homemaker, wage earner or parent.” The record shows that Wife moved out of the marital residence on October 23, 2000, and, she did not reside in the home as a homemaker after that date, which preceded the final divorce hearing by approximately two years and seven months (not four years as indicated by Husband). Although the record does not show that Wife contributed to the retirement plan funds as a wage earner or, after October of 2000, as a homemaker, both prior to the time she moved out of the marital residence and, thereafter, for the entire period of time preceding the divorce, she continued to care for the parties’ children and she was subsequently awarded primary responsibility for the care of Joel and responsibility for the care of Ethan on weekends. Under TenmCode Ann. § 36-4-121, a party’s contribution to the marriage as parent is appropriately considered in making an equitable division of marital property.

In addition to our findings as to Wife’s contributions to the retirement plan funds awarded to her, our review of the record with respect to the specific assets and liabilities of this marriage shows that the evidence does not preponderate against the trial court’s determination in regard to the apportionment of the subject , retirement funds.

Husband also contends that the trial court erroneously classified dental equipment valued at $27,950.00 which was given to him and his brother by their father as marital property. Husband states that this equipment is “clearly separate, non-marital property.”

Assets determined to be the separate property of either spouse are not to be divided between the parties but are, instead, to be assigned to the party to whom the property is separate in nature. Brock v. Brock, 941 S.W.2d 896, 900 (Tenn. Ct.App.1996). TenmCode Ann. § 36-4-121(b)(2) provides that “separate property” includes “[pjroperty acquired by a spouse at any time by gift, bequest, devise or descent.”

The dental equipment in question was apparently included in the transfer by Husband’s father, Dr. Robert Stinson, of his dental practice to Husband and Husband’s brother in 1996 and, thus, it is not disputed that this equipment was acquired during the marriage. Although Dr. Robert Stinson denies that he was paid any money by Husband when he transferred the equipment to him and his brother, his testimony under cross-examination appears to be evasive and self-contradictory and indicates that he submitted statements to the Internal Revenue Service which show that he did receive money for the transfer:

Q ... In 1996, I believe it was, you sold the professional corporation, the Robert Stinson, DDS PC to your sons Warren and Eugene, did you not?
A I believe that’s what the records show.
Q And how much did you sell it for?
A I didn’t get no money for it. I think the records show I sold it for a total of— to each of them for sixty-two thousand, five hundred dollars each.
Q Okay. Each of your boys, Warren and Eugene Woody, paid you sixty-two thousand five hundred dollars each?
A No. That’s what the records show. I don’t think they paid me nothing.
Q They didn’t pay you anything?
A I don’t think they paid me nothing.
Q Okay. But when you’re talking about records, you’re talking about income tax records?
A Yeah.
Q That you claimed on your income tax records that ...
A Paid tax on it, yeah.
Q You paid tax on it?
A Yeah.
Q And that actually wasn’t true, was it?
A To my knowledge, I think it was true.
Q Well, you just told us that they didn’t pay you — no money changed hands?
A I don’t remember getting any money-
Q Okay. But you reported it on your income tax as a sale to the IRS?
A Yeah. I paid taxes on it. They got the money on it.

The testimony of Husband’s father is, at best, equivocal. Either Dr. Robert Stin-son’s statement that he did not receive money for the equipment from Husband is untrue or his statement to the Internal Revenue Service that he did receive money is untrue. Accordingly, Dr. Robert Stin-son has compromised his credibility as a witness. The evidence does not preponderate against the trial court’s designation of the dental equipment as marital property-

The third issue we address is whether the trial court erred in its valuation of a 1994 Sea Ray boat and marital furniture/furnishings.

In its division of the parties’ marital property, the trial court awarded Husband a one-half interest in a 1994 Sea Ray boat, the other half interest in that asset being owned by Dr. Robert Stinson. Husband’s interest in this boat was assessed at $12,000.00 by the trial court. Husband argues that the trial court erred in its valuation of the boat. He maintains that the only credible evidence presented regarding the boat’s value was that of an appraiser who stated that the Ml value of the boat was only $7,000.00 and, therefore, the actual value of his one-half interest is only $3,500.00. Husband asserts that the only contrary proof as to the boat’s value was the testimony of Wife that the boat has a value of only $10,000.00. Husband contends that Wife is not an owner of the boat and offered no other proof as to the boat’s value.

It is well settled under the law in this state that an owner of property is competent to testify as to the value of such property. Haynes v. Cumberland Builders, Inc., 546 S.W.2d 228, 234 (Tenn.Ct. App.1976). The evidence does not preponderate against the trial court’s finding that the boat was marital property. It follows that Wife was an owner of this asset and, as such, was competent to testify as to its value. Given this testimony of Wife, we do not agree with Husband’s argument that the evidence preponderates in favor of the $7,000.00 valuation he urges. At the same time, we do not agree that the evidence supports the value of $24,000.00 placed upon this asset by the trial court. In her brief, Wife directs us to nothing in the record which would support a valuation of $24,000.00 and concedes that she testified that the boat’s value is $10,000.00. Accordingly, we are compelled to reduce the value assigned to Husband’s one-half interest in the boat from $12,000.00 to $5,000.00.

Husband also contends that the trial court erred in valuing the marital furniture/furnishings awarded to Husband at $46,448.00. Husband asserts that Wife admitted at trial that she used new values in her valuation of the marital furniture, referencing the following testimony:

Q Now, this is an exhibit that you attached to the interrogatory answers listing your personal property, exhibit # 53, do you recognize this?
A Yes.
Q And is that your writing on there?
A No.
Q Who wrote that one there?
A I believe the man at Braden’s.
Q Okay. And it says new furniture price, thirty-two, nineteen, and that’s a corner cabinet, isn’t it?
A Yes.
Q That’s one of the corner cabinets you’ve listed on exhibit #2, isn’t it? A Yes.
Q And you used that figure that he gave you, that thirty-two nineteen, didn’t you?
A Well, thirty-two hundred.

While this testimony does appear to show that Wife assigned a value to one piece of furniture based upon its value as new, its does not indicate that any of the other marital furniture/furnishings were assigned erroneous values and Husband does not reference evidence which preponderates against the trial court’s assessment of the value of the remaining marital furniture/furnishings. Based upon the referenced testimony of Wife we find it appropriate to reduce the value assigned to the marital furniture/furnishings which were awarded to Husband. We assess the value of the cabinet which was the subject of Wife’s testimony to be $l,000.00-approximately thirty per cent of $3,219.00, the apparent new value of this asset. Accordingly, the total value assigned to the marital furniture/furnishings which were awarded to Husband is reduced from $46,448.00 to $44,229.00.

Our reduction of the values assigned to the 1994 Sea Ray boat and the noted item of furniture awarded to Husband results in an overall reduction of the total value of the marital assets in this case from $1,142,706.00 to $1,133,487.00. In keeping with the trial court’s equal division of the marital property, each party should receive $566,743.50 of this amount. Accordingly, we remand to the trial court for an increase in distribution to Husband and a decrease in distribution to Wife to compensate for the indicated reductions in the value of assets awarded to Husband.

The final issue we address is whether the trial court erred in ordering Husband to pay Wife $20,000.00 as partial reimbursement of her attorney’s fees.

A trial court is permitted to allow awards to defray the legal expense of a divorce proceeding in its discretion and this Court is not inclined to second guess the trial court unless the evidence preponderates against the trial court’s decision. Batson v. Batson, 769 S.W.2d 849, 862 (Tenn.Ct.App.1988). Upon our review of the record in the instant matter we are compelled to conclude that the evidence in this case does not preponderate against the trial court’s award of attorney’s fees to Wife.

For the foregoing reasons, the judgment of the trial court is affirmed as modified and the case is remanded for further action consistent with this opinion. Costs of appeal are adjudged equally against Warren Kent Stinson and Kelly Darlene Stin-son and their sureties.

      . We are compelled to observe that Husband is apparently able to work on a full time basis even though, as noted, he has primary residential care of the parties’ other minor child, Ethan.