author: JAMES M. SMART, JR., Judge.

text:
    Kathryn Lynn SABATINO, Respondent, v. Victor Robert SABATINO, Appellant.
    No. WD 70441.
    Missouri Court of Appeals, Western District.
    July 13, 2010.

      Ryan J. McMillin, Kansas City, MO, for appellant.
    James D. Boggs, Kansas City, MO, for respondent.
    Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and MARK D. PFEIFFER, JJ.
   JAMES M. SMART, JR., Judge.

Victor Sabatino appeals the trial court’s judgment in favor of Kathryn Sabatino on her petition for the dissolution of their marriage. He contends that the trial court erred in allocating marital debt and in assessing maintenance. The judgment is affirmed as modified.

Background

Victor Sabatino (Husband) and Kathryn Sabatino (Wife) were married in 1984. In August 2007, Wife filed a petition for dissolution of the marriage. She asked for maintenance, an equitable distribution of the marital property, and payment of her attorneys’ fees. Husband filed a counter-petition and also asked for an equitable distribution of property. The couple’s three children were emancipated.

The evidence at trial showed that Husband had owned a snack-food business during the first sixteen years of the marriage. During that time, the couple had a substantial income and accumulated considerable assets, including a million-dollar home. Except for a few months, Wife did not work outside the home. She testified that she and Husband had agreed that she would stay at home to raise the children.

In 2000, Husband’s business failed. Thereafter, despite having significant debts, Husband remained unemployed. He was still unemployed at the time of trial, eight years later. Husband tried to start other businesses but was unsuccessful in doing so. These failed business attempts resulted in even more debt, amounting to almost $2 million by the time of trial. Eventually, the couple began selling their assets as a means of income.

In May 2007, after twenty-three years of marriage, the couple separated. Wife claimed that Husband’s gambling and use of pornography, as well as the financial difficulties, had put a strain on the marriage. By the time of trial, neither Husband nor Wife was employed. The marital home had been lost to foreclosure, and both parties appeared to be living primarily off the charity of family and friends. The parties’ respective statements of assets and debts confirmed that they had minimal assets and considerable debt. Wife’s income and expense statement showed no income and $4,500 in monthly expenses. Husband reported no income and $4,000 in monthly expenses.

Wife testified that Husband had provided no support during the separation. She had been unable to find employment and was relying on her children and fellow church members for support. Her net worth consisted primarily of the clothes in her closet, she said. Wife requested maintenance of $1,500 per month and claimed that Husband was able to pay it. She introduced copies of Husband’s bank statements from January 2007 through April 2008, which showed almost $43,000 in deposits. Wife testified that Husband never wanted to work for anyone else and, so, never tried to find a job doing so. She said she had supported Husband’s attempts to open his own business and acknowledged that she had signed loans for those businesses. Wife stated that Husband had offered to be responsible for all of the couple’s debt.

Husband, who previously had earned as much as $220,000 a year, testified that he had been unemployed since the demise of his snack-food business in 2000. He had been unsuccessful in finding employment in his field, he said, because those opportunities were limited. Husband also discussed various business ventures he had attempted. Since the foreclosure of the couple’s home, Husband had been living with a friend. He explained that the deposits to his bank account came, in part, from the sale of an $8,000 piano. Husband also said he had allowed his friend, who was unable to open a bank account in his own name, to use his bank account for deposits and withdrawals.

The court dissolved the marriage. The court awarded Wife personal property valued at about $5,000 and awarded Husband personal property worth $22,950. The court ordered Husband to be responsible for all the marital debt of $1,735,000; for $290,000 in debts related to his new business ventures; and for all debts to his friends and family. The court found that Wife lacked sufficient property to provide for her reasonable needs and was unable to support herself through appropriate employment. The court found that Husband was currently unemployed but was capable of earning at least $40,000 per year. The court ordered him to pay Wife $1,500 per month in periodic, modifiable maintenance. The court also ordered that Wife be awarded a judgment of non-modifiable maintenance for the total amount of the debt on which both were liable, $1,735,000. The court ordered Husband to pay Wife’s legal fees of $6,000.

Husband appeals.

Standard of Review

We will affirm the trial court’s judgment unless it is unsupported by substantial evidence, is against the weight of the evidence, or erroneously declares or misapplies the law. In re Marriage of Taylor, 244 S.W.3d 804, 808 (Mo.App.2008). “The party challenging the dissolution decree has the burden of demonstrating error.” Id. We review the evidence in the light most favorable to the trial court’s judgment. Id. “A trial court is free to believe or disbelieve all, part, or none of the testimony of any witness.” Id. “We review the trial court’s division of property, grant of maintenance, and award of attorney’s fees for an abuse of discretion; thus, we will not disturb the trial court’s decision unless it has abused that discretion.” Schuh v. Schuh, 271 S.W.3d 35, 37 (Mo.App.2008).

Allocation of Marital Debt

Husband claims that the trial court’s judgment ordering him to pay all the marital debts is against the weight of the evidence and a misapplication of the law.

The division of marital property is governed by section 452.330.1, RSMo. “[M]arital debts are to be considered when establishing a fair distribution of the marital property.” Jamison v. Jamison, 828 S.W.2d 377, 379 (Mo.App.1992). Section 452.330.1 provides that the court “shall divide the marital property and marital debts in such proportions as the court deems just after considering all relevant factors[.]” The division need not be equal, but it must be fair and equitable under the circumstances of the case. Fisher v. Fisher, 278 S.W.3d 732, 736 (Mo.App.2009). The relevant factors here are: (1) the economic situation of each spouse when the property is divided; (2) each spouse’s contribution to the acquisition of marital property, including Wife’s contribution as a homemaker; (3) the value of non-marital property awarded to each spouse; and (4) the parties’ conduct during the marriage. See section 452.330.1. The trial court’s division of marital property is presumed correct, and the party challenging the division has the burden of overcoming that presumption. Holmes v. Holmes, 878 S.W.2d 906, 912 (Mo.App.1994).

Here, the trial court found that the parties had $1,735,000 in marital debts. This included $450,000 in state and federal taxes, and the rest was apparently related to Husband’s failed business. The court also found that Husband has incurred additional indebtedness of $90,000 and $200,000 related to attempted business start-ups; $10,000 in various bills; and $95,000 to friends and family. The court found that Wife had no debt. The court allocated all of the debt to Husband.

Husband contends that this allocation of debt was against the weight of the evidence. He says the evidence shows that the debts were jointly incurred during the marriage, that he had been unemployed for eight years and was unemployed at the time of trial, and that the parties had minimal assets to justify such an award.

Wife says the judgment was not in error because the evidence showed that she had no financial ability to pay the debts. She also says that the debt from unpaid taxes and Husband’s business liabilities contributed to the “destruction of the marital estate” and that his failure to seek employment for eight years constituted “misconduct.” There was evidence from which the court could have reached that conclusion.

At the time of trial, it appeared that neither party had the financial ability to pay the debts. However, the court imputed $40,000 worth of income to Husband. Thus, the court obviously concluded that he possessed at least some ability to pay the debts, while Wife had none. The court could note the $43,000 deposited into Husband’s bank account, in a period of about fifteen months. The court did not have to believe that some of those deposits belonged to another person. The value of the assets awarded to each spouse here is dwarfed by the enormous debt. Also, as noted, there was evidence that Husband had told Wife he would be responsible for all the debt. On cross-examination, Husband’s counsel asked Wife:

Q. Okay. Has Mr. Sabatino—There’s obviously an amount of substantial debt here, correct?
A. That’s correct.
Q. Okay. And Mr. Sabatino has offered to take that debt; is that correct?
A. That’s correct.

Husband now says making him responsible for all the marital debt is unfair and inequitable and violates section 452.330.1. See Fisher, 278 S.W.3d at 735-36. As this court has explained, however, such a division of marital debt is “certainly within [the court’s] authority.” Al-Yusuf v. Al-Yusuf, 969 S.W.2d 778, 786 (Mo.App.1998) (trial court had authority to allocate all marital debt to husband and order him to pay it to wife or directly to creditors). A trial court may assign one spouse the primary duty to pay off the debt and hold the other spouse harmless on it. Wright v. Wright, 1 S.W.3d 52, 60 (Mo.App.1999).

“[T]he trial court is vested with broad discretion in determining how and in what manner marital debts should be divided, and we will not disturb that division absent a clear abuse of discretion.” Id. Under the circumstances of this case, we find no abuse of discretion in the trial court’s allocation of the marital debts. Point denied.

Periodic, Modifiable Maintenance

Husband also says the trial court’s judgment ordering him to pay Wife $1,500 monthly in modifiable maintenance was against the weight of the evidence and a misapplication of the law.

In assessing whether there is a need for maintenance, section 452.335.1 “requires the trial court to follow a two-part threshold test.” Taylor, 244 S.W.3d at 810. Before awarding maintenance, the trial court first had to find that Wife: (1) lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs; and (2) is unable to support herself through appropriate employment. Section 452.335.1. Wife had the burden of establishing those threshold requirements. Taylor, 244 S.W.3d at 810.

Husband says the trial court erred in finding that Wife met those thresholds. We disagree. Wife claimed that she had $4,500 in monthly expenses. The evidence established that her entire net worth consisted of personal property valued at $5,000. The marital home had been foreclosed upon, and, except for $9 in her bank account, none of the property awarded to her is income-producing. The record also showed that Wife was 59 years old and had been unemployed throughout the vast majority of her twenty-three-year marriage. She said her recent search for employment had been unsuccessful due to lack of a vehicle, lack of training, and the length of her unemployment. The court did not abuse its discretion in finding that Wife currently is incapable of supporting herself through employment.

After the court finds that the threshold test for maintenance has been satisfied, it then may consider the statutory factors relating to amounts and duration. Id. Section 452.335.2 instructs the court to consider all relevant factors, including but not necessarily limited to:

(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently!:;]
(2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) The comparative earning capacity of each spouse;
(4) The standard of living established during the marriage;
(5) The obligations and assets, including the marital property apportioned to him and the separate property of each party;
(6) The duration of the marriage;
(7) The age and physical and emotional condition of the spouse seeking maintenance;
(8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;
(9) The conduct of the parties during the marriage; and
(10) Any other relevant factors.

Husband contends that the amount of maintenance is inappropriate. He points out that he had been unemployed for eight years and was being treated for cancer at the time of trial. He also says the parties’ minimal assets do not justify such an award. He takes issue with the court’s finding that he is capable of earning at least $40,000 per year, and he says the court erred in finding that Wife is incapable of employment.

We find no error in the amount of the award. As noted, Wife was awarded no assets from which to support herself. She has been unemployed for more than two decades, apparently by mutual agreement of the parties. She is left with few job skills and has been unable to obtain employment. Wife enjoyed a high standard of living during most of the parties’ marriage, which included living in a million dollar home. At the time of trial, Wife was age 59, unemployed, and had $4,500 in monthly living expenses.

The court also did not abuse its discretion in imputing a $40,000 salary to Husband. There was evidence from which the court could have found that Husband was capable of earning substantial income but, because of a stubborn refusal to work for anyone else, had chosen to remain unemployed after his business failed. “In proper circumstances, a trial court may impute income to a party according to what that party could earn by using best efforts to gain employment suitable to [his] capabilities.” Taylor, 244 S.W.3d at 813. One such circumstance is when a party voluntarily reduces his income without justification. Id.

A trial court is granted broad discretion in awarding maintenance. Adams v. Adams, 108 S.W.3d 821, 827 (Mo.App.2003). The party challenging the award must show that it constituted an abuse of discretion. Id. Based on our analysis of the relevant statutory factors and the evidence presented at trial, we cannot say that the trial court abused its discretion in awarding Wife $1,500 per month in modifiable maintenance. Point denied.

Non-Modifiable Maintenance

Husband contends that the trial court erred as a matter of law in entering a judgment for non-modifiable maintenance in the total amount of the marital debts or $1,735,000. He argues that such an award is not the proper use of maintenance under section 452.335.

The trial court awarded Wife “a judgment of non-modifiable maintenance for the total amount of the debts for which [Husband] and [Wife] are both liable in the amount of $1,735,000 ... to be satisfied upon payment of the debts by [Husband].” The court further ordered that the “award of non-modifiable maintenance is in the nature of spousal support for [Wife] and as such is therefore non-dischargeable in bankruptcy.”

Husband’s claim that this is an improper use of maintenance is well taken. “Maintenance should not be used as a mechanism to distribute marital property.” Fisher, 278 S.W.3d at 734. In Cates v. Cates, 819 S.W.2d 731 (Mo. banc 1991), the Court held that a “maintenance in gross” award or a lump sum judgment for maintenance “is no longer recognized as a tool for providing economic sustenance under Section 452.335[.]” Fisher, 278 S.W.3d at 734. The Court explained:

Because maintenance is founded on need, a maintenance award may extend only so long as the need exists. As the statute is cast, therefore, it would make little sense for the law to countenance a lump sum or “gross” award based on need which was not subject to modification. Thus, the dissolution of marriage statutes appear to contemplate a lump sum or gross payment only as a division of property.

Id. (quoting Cates, 819 S.W.2d at 735).

Husband says the trial court in this case was attempting to distribute marital debt by way of a maintenance award. This is inappropriate, he says, because it ignores the statutory purpose of maintenance, ie., to provide for the receiving spouse’s actual needs. Wife appears to concede that such an award would be inappropriate but says that this award “was not in the nature of an award of support” (emphasis added) (even though the judgment clearly states that it is). Rather, Wife says, it was intended to enforce the court’s property division (specifically the allocation of debt) and to insure that Wife is not harassed by Husband’s creditors.

Several cases have dealt with similar situations. In all of those cases, the courts have unequivocally held that an order for payment of debt in a dissolution decree should not be characterized as maintenance where it is actually an aspect of the property division. See, e.g., Evans v. Evans, 45 S.W.3d 523, 528 (Mo.App.2001). These cases have resolved the problem in a variety of different ways based upon their own unique set of circumstances.

In Taylor, 244 S.W.3d at 808-10, and Jamison, 828 S.W.2d at 378-79, for example, where the lower courts had awarded “maintenance in gross” to be satisfied by the husband paying off the couple’s debts, the appellate courts found that the clear intent was not to award maintenance but, rather, to equitably distribute the property. In both eases, the courts affirmed the judgments as modified and remanded with instructions to strike the words “maintenance in gross” from the judgment. Id. On the other hand, in Al-Yusuf, 969 S.W.2d at 786-87, and Evans, 45 S.W.3d at 528-29, the trial court’s intent was less clear. Those courts remanded with instructions for the trial court to clarify whether its award of “lump sum maintenance,” “non-dischargeable in bankruptcy,” “to be satisfied upon payment of the debt,” was actually intended as an aspect of the property division, and, if so, then not to label it “maintenance.” Id.

In Schuh v. Schuh, 271 S.W.3d 35, 38 (Mo.App.2008), the court took a different approach. There, the appellate court found that the lower court’s award of “lump sum maintenance” clearly was simply an attempt to equitably divide the marital property and award attorneys’ fees. Id. That court found “no abuse of discretion in the amount of the ... award” but said that the trial court should not have characterized it as “lump sum maintenance.” Id. The Schuh court noted that it is authorized by Rule 84.14 to enter the judgment that the trial court should have entered. Id. The court, therefore, affirmed except to delete the term “lump sum maintenance” and to delineate “that $17,500 is a marital property award and that $6,142.50 is an [award of] attorney’s fees[.]” Id. at 38.

In this case, it is clear to us that the trial court intended the allocation of the marital debts to be a part of the property division and that the intent of the non-modifiable maintenance award was to protect Wife from liability. We recognize that the court believed this was fair to Wife, and we do not disparage the court’s desire. However, as is clear from the authorities discussed above, we cannot regard this characterization (non-modifiable maintenance) as a proper use of the concept. Thus, we find that the approach taken in Schuh also is appropriate here. Rule 84.14 allows us to enter such judgment as the trial court ought to give. Id. After reviewing the record and judgment in this case, we believe that “modifying the trial court’s judgment will promote judicial economy as well as save time and expense for the parties and the trial court.” Id. Consequently, pursuant to Rule 84.14 we modify the judgment to strike the language granting Wife non-modifiable maintenance in the amount of the marital debt ($1,735,000), and affirm the judgment in all other respects.

Conclusion

The judgment provision granting Kathryn Sabatino non-modifiable maintenance in the amount of $1,735,000 is vacated. The judgment is affirmed in all other respects. Each party shall be responsible for its own costs on appeal.

All concur.

      . All statutory references are to the Revised Statutes of Missouri 2000, unless otherwise noted.

      . The fifth factor, ”[c]ustodial arrangements for minor children,” is not relevant here.

      . Though the maintenance award in Schuh did not deal with the allocation of marital debt, the effect is the same.


source: Caselaw Access Project

author: JAMES EDWARD WELSH, Judge.

license: Public Domain

text:
    Daniel E. CHILDS, III, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70794.
    Missouri Court of Appeals, Western District.
    July 13, 2010.

      Susan L. Hogan, Kansas City, MO, for Appellant.
    Robert J. Bartholomew, Jefferson City, MO, for Respondent.
    Before THOMAS H. NEWTON, C.J., JAMES EDWARD WELSH, and KAREN KING MITCHELL, JJ.
   JAMES EDWARD WELSH, Judge.

Daniel E. Childs, III, appeals the circuit court’s judgment denying his Rule 29.15 motion for post-conviction relief. He claims that his defense counsel was ineffective for failing to make an adequate offer of proof of evidence he wished to present concerning the victim’s past drug use. We affirm.

On May 31, 2003, the victim, M.H., was fifty-three years old and lived with her mother in Kansas City. After attending a friend’s funeral, she bought a half-pint of vodka and went to a park shelter to drink it. While M.H. was drinking in the shelter, Childs approached her, introduced himself, and told M.H. that she looked nice. Childs and M.H. talked and smoked cigarettes. Childs was also smoking from a crack pipe, utilizing M.H.’s cigarette lighter. M.H.’s lighter quit working, so Childs asked M.H. to drive him to a liquor store to get another lighter. M.H. agreed to take him.

When they arrived at the liquor store, Childs told M.H. that he could not go in and that he did not have any money, so M.H. went into the store and bought Childs a lighter. When she returned, Childs told her that he lived close by and asked her to take him home. M.H. drove according to Childs’s directions until he told her to stop at an alley.

Instead of getting out of M.H.’s car, Childs reached over the center console and pushed M.H. out of her car. He then dragged M.H. up the alley and into a clearing, where he forcibly raped her. During the rape, Childs choked M.H. with his hands. Afterwards, Childs struggled with M.H. for her car keys. Childs took M.H.’s car keys, ran down the alley, and drove away in M.H.’s car.

Although she was shoeless, M.H. started to walk home. She stopped at a house along the way. Nervous and crying, M.H. asked the occupant of the home to call the police because she had been raped and her car had been stolen. When the police officers arrived, M.H. was crying and was very upset. She told the officers that she had been raped and that her car had been stolen. The officers noticed that a button was missing off the top of her dress. The officers called for an ambulance to take M.H. to the hospital. At the hospital, M.H. spoke with several detectives, and a rape kit was performed. The nurse who performed the rape kit concluded that M.H. had been assaulted. Subsequent DNA tests showed the presence of Childs’s semen on a vaginal swab taken from M.H.

The next day, police officers spotted M.H.’s car. When the officers activated their emergency lights to initiate a stop, the car’s driver sped up and attempted to elude the police. After leading the police on a chase, the driver crashed M.H.’s car. The driver, later identified as Childs, was arrested. M.H. identified Childs from a photo lineup as the man who had raped her and stolen her car.

Childs was subsequently charged with kidnapping, forcible rape, robbery in the second degree, tampering in the first degree, and resisting arrest. Before trial, the State filed a motion in limine seeking to prohibit Childs from questioning M.H. about her past drug use. While the State conceded that any evidence of M.H.’s being under the influence of drugs on the day of the incident would be relevant to M.H.’s credibility, the State argued that any evidence of M.H.’s illicit drug use in the weeks, months, or years before the incident was irrelevant and would constitute inappropriate impeachment evidence.

Childs argued that evidence of M.H.’s past drug use was relevant to M.H.’s credibility. He contended that, if the jury was aware that M.H. had a history of using crack cocaine, the jury “might look at her testimony differently.” Also, Childs argued that proof of M.H.’s past drug use was relevant to prove that M.H. did, in fact, use drugs on the day of the incident. Specifically, Childs contended that M.H.’s past drug use would show that, “chances are, she used [drugs] that day, whether she admits to it or not.”

The circuit court granted the State’s motion in limine and ruled that Childs could inquire about M.H.’s drug use on the day of the incident but not about her past drug use. Childs’s defense counsel asked the court for leave to make an offer of proof during the trial through questions to M.H. The court said that it would take a recess after M.H.’s testimony to allow counsel to make his offer of proof.

During that recess, Childs’s defense counsel told the court that, if M.H. testified consistently with her deposition, he expected that she would say that she used cocaine in the past but no longer buys it. Childs’s defense counsel argued that this testimony would show that M.H. has a practice of using drugs but not buying them, which would support his contention that she exchanged sex with Childs for crack cocaine on the day of the incident. The court again ruled that evidence of M.H.’s past drug use was not relevant. When the court asked Childs’s defense counsel if he wanted to make an offer of proof, he declined.

Childs testified in his defense that M.H. agreed to have sex with him and to let him stay at her house for awhile in exchange for his providing her seven rocks of crack cocaine. Childs claimed that, after they had sex in M.H.’s car and M.H. smoked the crack cocaine in his presence, he feared that she was going to back out of her promise to let him stay at her house. Consequently, when M.H. got out of the car to go to the bathroom, Childs decided to steal her car.

The jury found Childs guilty on all counts. In Childs’s motion for judgment of acquittal or for a new trial, his defense counsel alleged that he had erred in not submitting an offer of proof. During a hearing on the motion, Childs’s defense counsel argued that he was ineffective because, had he made an offer of proof, the court might have ruled differently on whether M.H.’s past drug use was admissible. The court disagreed and denied the motion.

The court sentenced Childs, as a prior offender, to ten years imprisonment for kidnapping, to be served consecutively to the forcible rape count and concurrently with all other counts; fifteen years imprisonment for forcible rape, to be served consecutively to the kidnapping, robbery, and tampering counts but concurrently with the resisting arrest count; ten years imprisonment for robbery in the second degree, to be served consecutively to the forcible rape count and concurrently with all other counts; seven years imprisonment for tampering in the first degree, to be served consecutively to the forcible rape count and concurrently with all other counts; and four years imprisonment for resisting arrest, to be served concurrently with all counts.

We affirmed Childs’s convictions and sentences on direct appeal. State v. Childs, 257 S.W.3d 655 (Mo.App.2008). In Childs’s direct appeal, Childs argued that the court erred in not admitting evidence of M.H.’s past drug use. Id. at 657. We found that Childs had failed to make a sufficient offer of proof to preserve the issue or to permit even plain error review. Id. at 658-59.

Childs filed a Rule 29.15 motion for post-conviction relief, which was later amended by appointed counsel. In his amended Rule 29.15 motion, Childs alleged that his defense counsel was ineffective for failing to make a proper offer of proof. Childs claimed that evidence of M.H.’s past drug use, including her deposition testimony that she did not purchase cocaine anymore, would support his defense that M.H. was using drugs on the day of the incident and that she had willingly exchanged sex for crack cocaine from him. Childs asserted that, because his counsel had failed to make a proper offer of proof, the circuit court excluded this “relevant and exculpatory evidence” and this court was unable to review the issue on appeal.

The circuit court denied Childs’s motion after an evidentiary hearing. In its findings of fact and conclusions of law, the court found that evidence of M.H.’s prior drug use was inappropriate impeachment evidence and determined that there was no evidence that an offer of proof would have changed the outcome of Childs’s trial. Childs appeals.

Our review of the denial of a Rule 29.15 motion is limited to determining whether or not the circuit court’s findings and conclusions are clearly erroneous. Rule 29.15(k). We presume that the circuit court’s findings of fact and conclusions of law are correct. Edwards v. State, 200 S.W.3d 500, 509 (Mo. banc 2006). “ ‘Findings and conclusions are clearly erroneous only if a full review of the record definitely and firmly reveals that a mistake was made.’ ” Id. (citation omitted).

Childs’s burden was to establish by a preponderance of the evidence that his attorney provided ineffective assistance of counsel. Rule 29.15(i). He was obligated to show that his attorney’s performance “did not conform to the degree of skill, care, and diligence of a reasonably competent attorney” and that his attorney’s failures prejudiced his case. State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998).

To be entitled to relief, Childs must establish both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Failure to prove either prong negates his claim. Clayton v. State, 63 S.W.3d 201, 206 (Mo. banc 2001). To satisfy the performance prong of the Strickland test, Childs has to overcome the presumptions that counsel acted professionally and that any challenged action was sound trial strategy. Hall, 982 S.W.2d at 680. To satisfy the prejudice prong of the Strickland test, Childs “must show that, but for counsel’s poor performance, there is a reasonable probability that the outcome of the court proceeding would have been different.” Tisius v. State, 183 S.W.3d 207, 212 (Mo. banc 2006). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. In reviewing Childs’s claims, “ ‘[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.’ ” Strong v. State, 263 S.W.3d 636, 647 (Mo. banc 2008) (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052).

In his sole point on appeal, Childs claims that defense counsel was ineffective for failing to make a proper offer of proof regarding evidence of M.H.’s past drug use. Childs argues that evidence that M.H. used drugs in the past, but did so without paying for them, was admissible because it corroborated his claims that he and M.H. engaged in consensual sex in exchange for crack cocaine and that M.H. used drugs on the day of the incident. Childs contends that his defense counsel’s failure to make a proper offer of proof prejudiced him by preventing him from presenting exculpatory evidence to the jury in a case that was essentially a “swearing match.” We disagree.

The evidence that Childs sought to introduce was inadmissible for the purposes for which he sought to introduce it. Childs wanted to use evidence that M.H. had used drugs in the past but did not pay for them as evidence of prior bad acts upon which the jury could judge her credibility. Childs also wanted to use this evidence to argue that M.H.’s propensity to use drugs and to exchange sex for drugs made it more likely than not that M.H. smoked crack cocaine with Childs on the day of the incident and had consensual sex with him in exchange for the crack. This was not proper impeachment evidence. State v. Clay, 975 S.W.2d 121, 141 (Mo. banc 1998). Evidence of a witness’s prior drug use is not admissible as evidence of the witness’s prior bad acts or of her propensity to use drugs. Id. “A witness cannot be impeached by ... proof of any specific act indicating moral degeneration.” State v. Wolfe, 13 S.W.3d 248, 258 (Mo. banc 2000). “As a general rule, impeachment evidence ‘should be confined to the real and ultimate object of the inquiry, which is the reputation of the witness for truth and veracity[.]’ ” State v. Couch, 256 S.W.3d 64, 68 (Mo. banc 2008) (quoting Wolfe, 13 S.W.3d at 258). Evidence of M.H.’s past drug use does not necessarily bear upon her reputation for truth and veracity.

Childs argues that, where the credibility of the complaining witness and the defendant is the “critical consideration” in a case, “evidence of specific instances of the complaining witness’s prior conduct can be admitted to show that the witness’s later conduct was in conformance with her prior conduct.” To support his argument, he cites State v. Long, 140 S.W.3d 27 (Mo. banc 2004), and State v. Murray, 842 S.W.2d 122 (Mo.App.1992). Childs reads Long and Murray too broadly. Long provides only a “limited exception to the general rule of inadmissibility of extrinsic evidence of specific prior acts of misconduct by the victim.” State v. Wilson, 256 S.W.3d 58, 59 (Mo. banc 2008). “[T]he Long exception applies only when the impeaching incident involves a prior false allegation to persons in authority implicating a specific person and involving the same or substantially similar circumstances as the present allegation.” Id. Likewise, Murray concerned only the admissibility of specific instances of prior consensual sexual contact between the complaining witness and the defendant under section 491.015, RSMo, the “rape shield” law, where the defense was consent. 842 S.W.2d at 123-26. Long and Murray are inapposite to this case.

Because the evidence that Childs sought to introduce was inadmissible, he suffered no prejudice from his defense counsel’s failure to make a proper offer of proof. The circuit court did not clearly err in denying Childs’s Rule 29.15 motion. We affirm the circuit court’s judgment.

All concur.

      . Further undercutting Childs's assertion of Strickland prejudice is the fact that Childs's defense-M.H. smoked the crack cocaine that she had obtained from him in exchange for consensual sex-was refuted by the medical professionals who treated M.H. after the incident. Both the paramedic and the nurse who treated M.H. testified that M.H. exhibited no signs or symptoms of drug use. The paramedic also testified that, if M.H. had smoked the quantity of drugs alleged within the time frame alleged, M.H. would have exhibited signs of it. In light of this evidence, we fail to see how evidence of M.H.’s past drag use, even if it were admissible, would have changed the outcome of the trial.

      . In his argument, Childs sets out at length the portion of his direct appeal in which we found that the offer of proof was too deficient to permit even plain error review. Childs, 257 S.W.3d at 658-59. To the extent that Childs bases any claim of ineffectiveness on the failure to preserve the admissibility of the evidence for appellate review, such a claim is not cognizable in a Rule 29.15 motion. Ever

        age v. State, 229 S.W.3d 99, 102-03 (Mo.App.2007).


author: ALOK AHUJA, Judge.

text:
    Tyrone WILLIAMS, Respondent-Appellant, v. KANSAS CITY TITLE LOAN CO., INC., et al., Respondents, Walter Grigsby, Respondent, Westlake Services, Inc., Appellant-Respondent.
    Nos. WD 70941, WD 70969.
    Missouri Court of Appeals, Western District.
    July 13, 2010.
    Salvatore J. Mirabile, Esq., Kansas City, MO, for appellant.
    Stephen Bradley Small, Esq., and Gregory E. Eufinger, Jr., Esq., for Respondent-Appellant.
    Mandi R. Hunter, Esq., for Appellant-Respondent.
    Before: LISA WHITE HARDWICK, P.J., and JAMES M. SMART, JR. and ALOK AHUJA, JJ.
   ALOK AHUJA, Judge.

Tyrone Williams, the plaintiff below, appeals the trial court’s enforcement of a settlement purportedly reached at a court-ordered mediation session, and the consequent dismissal of his claims with prejudice. Westlake Services, one of the defendants below, appeals the trial court’s denial of its request for attorneys fees. Because the settlement Westlake and the other defendants sought to enforce was not memorialized in a written agreement executed by all parties, as required by Supreme Court Rules 17.01(d) and 17.06(c), we reverse the trial court’s enforcement of the settlement. Westlake’s request for attorneys fees depended on its claim that Williams had unreasonably refused to acknowledge the existence of a binding settlement agreement. Because Williams was correct that no binding settlement had been reached, Westlake’s attorneys fee motion was properly denied.

Factual Background

Tyrone Williams brought an action for damages against Westlake, TMJJ Inc. d/b/a Kansas City Credit Motors, KC Title Loan Co., Inc., and Walter Grigsby (collectively “KCCM”) in connection with his purchase of a car from KCCM. Williams asserted a variety of substantive claims, including claims under the Merchandising Practices Act, §§ 407.010-407.309, RSMo, for fraud, and for breach of contract.

Westlake alleges that the parties reached a settlement of Williams’ claims during a court-ordered mediation with mediator F. Coulter deVries. Westlake contends that Williams and his attorney, Stephen B. Small, left the mediation prior to signing the final written settlement agreement, after advising deVries that they would return shortly to sign the final agreement. Westlake states that the remaining parties, their attorneys, and the mediator waited almost an hour for Williams and Small to return. When Williams and Small did not reappear, the mediator, the defendants, and their counsel signed the agreement. The defendants and counsel then left. No written settlement agreement signed by all parties exists.

According to Westlake, discussions continued in the week following the mediation, but Small repeatedly quibbled with the various drafts of the proposed settlement agreement. Westlake then filed a motion to enforce the settlement, and sought its attorneys fees. The trial court granted Westlake’s motion to enforce, declaring “that all parties of the above-captioned suit are hereby bound by the terms contained in” the settlement agreement which the defendants and the mediator — but not Williams — had signed at the mediation’s conclusion. The trial court denied West-lake’s motion for attorneys fees.

Both Williams and Westlake now appeal.

Standard of Review

‘When reviewing a trial court’s judgment enforcing a settlement, we will affirm unless the judgment is against the weight of the evidence, there is no substantial evidence to support it, or the court erroneously applied or declared the law.” Ste. Genevieve Cnty. Levee Dist. # 2 v. Luhr Bros., 288 S.W.3d 779, 782 (Mo.App. E.D.2009).

Analysis

On appeal, Williams argues on four separate grounds that the trial court erred in enforcing the settlement agreement; for its part, Westlake seeks reversal of the trial court’s refusal to award it its attorneys fees. On the view we take of this case, we need only address Williams’ first Point: that the court’s enforcement of the settlement violated Supreme Court Rule 17.06(c), because there was no written settlement agreement signed by the parties or their counsel. Because Westlake’s attorneys fee motion depended on its position that a binding settlement existed, the trial court did not err in denying that motion.

I.

The trial court order which triggered the mediation specifically directed the parties to “participate in mediation pursuant to Supreme Court Rule 17.” Rule 17 provides in relevant part:

17.01. Alternative Dispute Resolution Program — Establishment—Purpose — Definition
(d) All alternative dispute resolution processes shall be non-binding unless the parties enter into a written agreement as provided in Rule 17.06(c). A written agreement shall be binding to the extent not prohibited by law.
17.06. Confidentiality and Settlement
(c) Settlement shall be by a written document setting out the essential terms of the agreement executed after the termination of the alternative dispute resolution process.

Consistent with Rules 17.01(d) and 17.06(c), the mediation contract executed by the parties specifies:

2. Mediation Service.... Any settlement reached between the Parties over the matters at issue shall, in order to be binding, be in the form of a written agreement, approved in writing by the attorneys for the Parties, signed by the Parties and witnessed by the Mediator. If Mediator prepares the written settlement agreement, the parties agree to rely on their own individual judgment and/or that of their respective attorneys in making their decision to enter into any binding settlement agreement.... Mediation negotiations, statements and opinions of parties and/or the Mediator are confidential and may not be used in any litigation, civil or criminal proceeding.
4. Controlling Law. This contract is intended to be subject to Missouri law including the Missouri Supreme Court Rules, including but not limited to Rule 17, regarding Mediation....

Westlake acknowledges that the terms of the settlement which the circuit court enforced were agreed to, if at all, during a court-ordered mediation conducted pursuant to Rule 17. It is undisputed that the parties did not, at any time, “enter into a written agreement” “setting out the essential terms of the agreement.” Given the absence of a written settlement agreement executed by Williams, the mediation process in which the parties engaged was “non-binding” under the express direction of Rule 17.01(d).

Other provisions of Rule 17 support our reading of the plain language of Rules 17.01(d) and 17.06(c). Supreme Court Rule 17.06(a) specifies that communications during a court-ordered alternative-dispute resolution process, including a mediation, are confidential:

An alternative dispute resolution process undertaken pursuant to this Rule 17 shall be regarded as settlement negotiations. Any communication relating to the subject matter of such dispute made during the alternative dispute resolution process by a participant or any other person present at the process shall be a confidential communication. No admission, representation, statement or other confidential communication made in setting up or conducting such process shall be admissible as evidence or subject to discovery, except that, no fact independently discoverable shall be immune from discovery by virtue of having been disclosed in such confidential communication.[]

Thus, by rule, the back-and-forth of the parties’ settlement discussions during a court-ordered mediation session are inadmissible as evidence. A motion to enforce an oral agreement purportedly reached during a mediation session will virtually always require, however, that the parties disclose the content of such discussions, and argue as to whether those discussions resulted in a binding agreement. That is exactly what occurred here: both West-lake and Williams attached affidavits and other documents to their motion papers to substantiate their version of the events that transpired during the mediation, including the statements made by various parties, their counsel, and the mediator. Those disclosures would appear to be in violation of the clear directive of Rule 17.06(a).

During proceedings on its motion to enforce settlement, Westlake also moved (unsuccessfully) for leave to solicit an affidavit or testimony from the mediator concerning events during the mediation. If oral settlements reached during a mediation session were enforceable, hearing from the mediator would seem to be a natural way of determining whether a final and binding agreement was in fact reached. But such testimony is expressly prohibited by Rule 17.06(b):

No individual or organization providing alternative dispute resolution services pursuant to this Rule 17 or any agent or employee of the individual or organization shall be subpoenaed or otherwise compelled to disclose any matter disclosed in the process of setting up or conducting the alternative dispute resolution process![]

It could be argued that a written settlement agreement concluding a court-ordered mediation is itself subject to Rule 17.06(a)’s confidentiality protection. Rule 17.06(c) specifically forecloses that argument, however. It provides that the written agreement memorializing the settlement’s terms shall be “executed after the termination of the alternative dispute resolution process.” (Emphasis added.) Thus, by rule, the written agreement itself is not considered to have occurred “during the alternative dispute resolution process,” and the agreement is therefore not subject to Rule 17.06(a). Moreover, Rule 17.06(d) provides that the mediator’s confidentiality obligations do not apply to testimony concerning the circumstances surrounding the execution of the written settlement agreement itself (or subsequent events), in a proceeding to enforce that written agreement:

An individual or organization providing alternative dispute resolution services pursuant to this Rule 17 or any agent or employee of the individual or organization may be called in an action to enforce the written settlement agreement reached following the conclusion of the alternative dispute resolution process for the limited purpose of describing events following the conclusion of the alternative dispute resolution process.

The various provisions of Rule 17 we have described above are of a piece. They contemplate that discussions during a court-ordered mediation process, which culminate in the parties’ agreement to the essential terms of a settlement, are confidential and non-binding. Neither the parties nor the mediator may disclose the substance of those discussions. Once the parties have reached an agreement on the settlement’s essential terms (and on the wording of a writing memorializing those terms), the mediation process concludes, and a written agreement is executed by the parties. That agreement is admissible as evidence and enforceable, and the parties may present testimony and evidence— including testimony from the mediator— concerning the execution of the agreement, the parties’ performance thereunder, and other subsequent events.

Westlake correctly notes that oral settlement agreements have long been enforced under the common law in Missouri. We have not been directed, however, to a case enforcing an oral settlement agreement that was allegedly reached during the course of a mediation conducted pursuant to Rule 17. Such court-ordered mediation proceedings are importantly different from settlement discussions or alternative dispute resolution proceedings in which the parties voluntarily engage. While the parties have some right to “opt out” of court-ordered mediation where they represent that “referral to alternative dispute resolution has no reasonable chance of being productive,” Rule 17.03(b), the fact is that their participation in such a mediation is compelled by court order, and subject to judicial oversight under Rule 17. In addition, the participants in a court-ordered alternative dispute resolution proceeding may justifiably rely on the unambiguous writing requirement contained in Rules 17.01(d) and 17.06(c) (a requirement which the parties in this case repeated in the mediation agreement they executed). In this context, therefore, common-law principles which may apply to purely voluntary settlement discussions cannot displace the plain language of Rule 17’s provisions, which were specifically promulgated to govern proceedings which are a creature of court order and Rule 17 itself.

We note that, while there may be strong arguments (in addition to common-law tradition) in favor of allowing the enforcement of oral settlement agreements in this context, there are also rational policies furthered by adopting the approach embodied in Rule 17. Insisting that the parties reduce the essential terms of their agreement to an executed writing: prevents the sort of “he said, she said” disputes that have occurred in this case, costing the parties and the courts both time and money; protects the confidentiality of mediation proceedings from inevitable erosion if parties are permitted to attempt to prove up oral agreements reached during mediation; and ensures that the litigants have in fact agreed to particular settlement terms, and that the litigants, including represented and unrepresented individuals, fully understand and accept the consequences of those terms.

We hold that Rule 17 means what it says: the essential terms of settlements reached during court-ordered mediation sessions must be reduced to a writing signed by the parties in order for such settlements to be enforced. Given that no such writing exists here, the trial court’s enforcement of the purported settlement of Williams’ claims must be reversed.

II.

In its appeal, Westlake argues that the trial court abused its discretion in denying its motion for attorneys fees. No statutory or contractual basis exists for a fee award. Westlake nevertheless argues that special circumstances justifying a fee award exist “because a settlement was reached by Williams and Westlake at the mediation but due to the departure of Williams and Williams’ attorney from the mediation, Westlake was forced to incur additional attorneys fees in its filing of a motion to enforce the settlement to attain closure to the case.”

As we have detailed above, Williams correctly took the position that no binding settlement had been reached at the mediation. Without an enforceable settlement, Williams was under no legal obligation to execute a written settlement agreement with which he did not agree. Because we have rejected the premise underlying Westlake’s request for attorneys fees, the circuit court could not have abused its discretion in denying that request. West-lake’s Point is denied.

Conclusion

The circuit court’s judgment is reversed, and the case remanded for further proceedings on the merits of Williams’ claims.

All concur.

      . This order was consistent with Jackson County Circuit Court Administrative Order 2008-121, which mandates mediation in all civil cases.

      . We recognize that questions concerning the applicability of Rule 17 may arise when negotiations continue, either with or without the mediator’s involvement, beyond the termination of the court-ordered mediation itself. Such issues are not presented here.

      . We reject Westlake’s argument that Rule 17 does not require that all parties actually execute the written agreement memorializing "the essential terms of the agreement.” Although it may not be stated in so many words, Rule 17.01(d)'s reference to "the parties entering] into a written agreement,” and Rule 17.06(c)'s reference to "execution]” of the "written agreement setting out the essential terms of the agreement,” plainly contemplate a writing executed by all parties. This conclusion is buttressed here by § 2 of the mediation contract the parties executed.

      . Section 435.014.2, RSMo, which is applicable to "[a]rbitration, conciliation and mediation proceedings” generally, contains language similar to Rule 17.06(a).

      . In opposing the defendants’ motion to enforce the settlement, Williams argued that the documents attached to the motion were inadmissible hearsay and were confidential under Rule 17.06(a), and moved to strike the documents. Williams' motion to strike was never ruled, and he does not challenge on appeal the trial court’s failure to rule on the motion.
      We also note that Williams does not contend as a separate basis for reversal that the trial court inappropriately resolved disputed factual issues concerning the existence and terms of a purported oral settlement agreement without conducting an evidentiary hearing. We express no opinion concerning the procedures the trial court employed to resolve the defendants’ motion to enforce. See generally, Eaton v. Mallinckrodt, Inc., 224 S.W.3d 596, 599-602 (Mo. banc 2007).

      .Section 435.014.1, RSMo includes a similar stricture where "all the parties to a dispute agree in writing to submit their dispute to any forum for arbitration, conciliation or mediation.”

      . See B-Mall Co. v. Williamson, 977 S.W.2d 74, 77 (Mo.App. W.D.1998)("The agreement [to settle a pending lawsuit] does not have to be in writing (unless the subject matter is within the Statute of Frauds) and it may be considered valid and enforceable even if it contemplates that a release will be signed at a later time”); see also, e.g., Owen v. Hankins, 289 S.W.3d 299 (Mo.App. S.D.2009); Kenney v. Vansittert, 277 S.W.3d 713 (Mo.App. W.D.2008).

      . Other states have mediation-confidentiality rules and statutes, and rules or statutes requiring or authorizing writings to document settlements reached in mediation. While such rules and statutes inevitably vary from state to state, we note that courts in other states have reached differing conclusions as to whether oral settlement agreements purportedly reached during mediations, but not evidenced by an executed writing, are enforceable. See, e.g., Yaekle v. Andrews, 195 P.3d 1101 (Colo.2008); Reese v. Tingey Constr., 177 P.3d 605 (Utah 2008); Ledbetter v. Ledbetter, 163 S.W.3d 681, 685-86 (Tenn.2005); Riner v. Newbraugh, 211 W.Va. 137, 563 S.E.2d 802 (2002); Vernon v. Acton, 732 N.E.2d 805 (Ind.2000); Few v. Hammack Enters., Inc., 132 N.C.App. 291, 511 S.E.2d 665 (1999).

      . Our disposition of Westlake's appeal should not be read to condone any behavior in which Williams or his attorney may have engaged.


author: WILLIAM W. FRANCIS, JR., Judge.

text:
    Janet P. HIGHT, Respondent, v. Richard C. HIGHT, Appellant.
    No. SD 29991.
    Missouri Court of Appeals, Southern District, Division Two.
    July 13, 2010.

      Richard D. Bender, Springfield, MO, for Appellant.
    Janet P. Hight, Springfield, pro se.
   WILLIAM W. FRANCIS, JR., Judge.

Appellant Richard C. Hight (“Husband”) appeals from a judgment of the trial court dissolving his marriage to Janet P. Hight (“Wife”). Husband submits two challenges: first, that felony charges, not reduced to convictions, were erroneously admitted into evidence, and second, that the division of marital property and marital debt was too disproportionate. For the reasons stated below, we affirm in part, reverse in part, and remand this matter to the trial court for further proceedings.

Facts and Procedural History

Wife filed a “Petition for Dissolution of Marriage” on April 7, 2008, after twenty-six years of marriage. Husband answered and filed his “Counter Petition for Dissolution of Marriage” on June 30, 2008. Husband was originally represented by counsel; however, counsel withdrew prior to the trial date.

This case proceeded to trial on January 8, 2009. Wife appeared with counsel; Husband appeared self-represented. The trial court entered its “Judgment and Decree of Dissolution of Marriage” (“Judgment”) on February 5, 2009. The Judgment concluded that Husband and Wife, combined, had $411,385 in marital assets and $165,540.48 in marital debt. The Judgment awarded Wife $383,670 of the marital assets and $44,064.11 of the marital debt. Husband was awarded $27,665 of the marital assets and $121,476.37 of the marital debt. In terms of percentages, Wife received slightly more than 93 percent of the marital assets and 27 percent of the marital debt. Husband received approximately 7 percent of the marital assets and 73 percent of the marital debt. After entry of Judgment, Husband filed a “Motion for Hearing by Circuit Judge or, in the Alternative, for New Trial.” The motion was denied.

Husband presents two points on appeal. In point one, he alleges the trial court erred in admitting into evidence that he had been charged with three serious felonies, which had not been reduced to convictions and did not involve charges of conduct concerning Wife. In point two, he asserts the trial court erred in its division of marital property and debt because the division was so one-sided in favor of Wife as to amount to an abuse of discretion.

Standard of Review

Our standard of review was succinctly set out in Workman v. Workman, 293 S.W.3d 89 (Mo.App. E.D.2009):

In a dissolution of marriage case, this Court will sustain the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. This Court will not retry the case, but instead, accept as true the evidence and reasonable inferences therefrom in the light most favorable to the trial court’s judgment, and disregard all evidence and inferences to the contrary. We defer to the superior ability of the trial court to judge factors such as credibility, sincerity, character of the witnesses, and other intangibles not revealed in the transcript.

Id. at 95 (internal citations omitted).

Analysis

Point I: Admission of Docket Sheet Containing Three Felony Charges

Husband’s first point challenges as error the Commissioner’s admission into evidence of a docket sheet containing three felony charges. (Exhibit “C”). This point is not preserved.

An objection regarding admissibility of evidence must specifically point out the grounds for that objection. Rogers v. B.G. Transit Corp., 949 S.W.2d 151, 158 (Mo.App. S.D.1997). Husband “may not advance on appeal an objection to evidence different from the one presented to the trial court.” Id.

Here, Husband’s objection consists of the following colloquy with the trial court:

[Husband]: Oh, my god. I object.
THE COURT: Well, let’s see what the—
[Husband]: Presumption of innocence is everything here.
THE COURT: Mr. Hight, this is not a criminal case, sir.
[Husband]: I understand that, Your Honor.
THE COURT: All right. Your objection is overruled.

Husband’s objection stating the “[p]resumption of innocence is everything here[,]” is not specific enough to support Husband’s point that the trial court erred when it admitted into evidence proof of felony charges, not reduced to convictions.

Furthermore, to warrant reversal, Husband must also establish how he was prejudiced by the asserted inadmissible evidence. Ritchie-Knuth v. Hazelwood, 259 S.W.3d 607, 608 (Mo.App. S.D.2008). Here, there is no indication of any prejudice to Husband by the admission of the felony charges into evidence in that there is no indication that the trial court relied on this evidence in arriving at its Judgment; however, there was evidence of other acts of marital misconduct in the record, which will be described below. Point I is denied.

Point II — Division of Marital Property and Marital Debt

Husband’s second point challenges the Judgment of the trial court in dividing marital property and debts. Husband asserts that the division of marital property and marital debt is so one-sided as to constitute an abuse of discretion by the trial court.

When reviewing a division of marital property, we give deference to the trial court, which is vested with considerable discretion in dividing marital property. Appellate courts will interfere only if the division of property is so heavily and unduly weighted in favor of one party as to amount to an abuse of discretion. It is not per se an abuse of discretion if the trial court awards one party a considerably higher percentage of the marital property than it awarded the other party. A division of marital property need not be an equal division, but must only be fair and equitable given the circumstances of the case.

Workman, 293 S.W.3d 89, 95-96 (internal citations omitted).

An abuse of discretion is present when the trial court’s ruling is clearly against the logic of the circumstances, which are before the court, and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Nelson v. Nelson, 25 S.W.3d 511, 516 (Mo.App. W.D.2000).

In this case, an analysis of a division of marital property begins with consideration of the factors set forth in section 452.330. These factors are:

(1) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;
(2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as a homemaker;
(3) The value of the nonmarital property set apart to each spouse;
(4) The conduct of the parties during the marriage; and
(5) Custodial arrangements for minor children.

The trial court may also consider other relevant criteria. Ludwig v. Ludwig, 126 S.W.3d 466, 477 (Mo.App. W.D.2004). The trial court is not required to follow a rigid formula and does not have to divide the property equally; “however, the division must be fair and equitable to the parties.” Id. Therefore, we must review the evidence and determine “whether [it] was sufficient to support the unequal division of the parties’ marital property as being fair and equitable.” Nelson, 25 S.W.3d at 518.

As we embark on our review, we are required to view the evidence in the light most favorable to the trial court’s Judgment. The evidence regarding the first factor in section 452.330 does not favor either party. Both parties were in similar economic circumstances. Both parties were unemployed. Wife testified that she was receiving monthly payments from Social Security for a disability. Husband testified that he was in the process of obtaining Social Security benefits for a disability. There are no issues concerning minor children and custody; therefore, no part of our analysis includes any effect upon minor children.

The evidence regarding the second factor was that Wife made contributions to the repair and cleanup of the marital real estate. However, the record is silent beyond this conclusion and no monetary value was assigned for those services.

The evidence regarding the third factor demonstrates that Wife was awarded $21,540 in nonmarital property, and Husband was awarded $65,310 in nonmarital property.

The evidence regarding the fourth factor was the most relevant for the division of property and debt by the trial court. Wife testified that Husband abused her. Wife’s testimony included specific examples of Husband’s abuse including that Husband put a gun to her head and threatened to kill her, threatened to kill her cats and horses, that he threw a lamp at her face and knocked out a couple of teeth, and that he threw a cordless phone at her, which gave her “a black eye for a week.” Wife also testified that Husband threatened to burn down the marital home if it was awarded to her. Wife also testified that following their separation, Husband only let her remove her “clothes and a couple small knickknacks” and Husband would not allow her to have access to any of the marital property, including their vehicles.

The trial court relied on evidence of Husband’s misconduct to support its Judgment because its Judgment specifically referenced Husband’s misconduct in the sections awarding the marital home, marital personal property, and marital debts.

The court found in paragraphs 17 through 19 of its Judgment:

17. [T]hat upon consideration of the Respondent’s misconduct during the marriage, including Respondent’s physical abuse of the Petitioner, Respondent’s above-mentioned failure to prevent the foreclosure of the parties’ said Illinois real estate (TRACT I), Respondent’s denial of Petitioner’s access to all marital funds and property and Respondent’s failure to provide Petitioner with any support during the parties’ separation, and after considering all the other relevant factors set out in Section 152.330.1, RS. Mo. [sic], the said marital home (TRACT II), and all marital interests and equity therein should be awarded to the Petitioner, (emphasis added).
18. [T]he Court FINDS that, upon consideration of [Husband’s] misconduct described hereinabove and all other factors set out in Section 152.330.1, RS. Mo, [sic], all the said items of marital personal property should be awarded to the parties as set out in the said Schedules. (emphasis added).
19. [T]he Court FINDS that the payment of said debts should be apportioned between the parties as set out in the said Schedules. The Court FURTHER FINDS that it considered the above-mentioned misconduct of the Respondent, the factors set out in Section 152.330.1, RS. Mo., [sic], and the division of the parties’ marital property herein when making its Findings for the division of marital debts, (emphasis added).

Consideration of marital conduct is certainly appropriate in this case. However, marital conduct is only “a factor in property division when the offending conduct places extra burdens on the other spouse.” McNair v. McNair, 987 S.W.2d 4, 6 (Mo.App. W.D.1998). The added burden “does not have to be a financial one.”

Ballard v. Ballard, 77 S.W.3d 112, 117 (Mo.App. W.D.2002). “There must also be evidence of the specific added burdens the non-offending spouse is claiming he or she suffered as a result of such misconduct.” Id. at 118. In our review, this Court must look for evidence that the trial court “in disproportionately dividing the marital property, based in whole or in part on marital misconduct, is not ‘punishing1 the offending spouse, but is compensating the aggrieved spouse for the extra burden placed on the spouse in the marriage by the offending spouse’s misconduct.” Nelson, 25 S.W.3d at 519.

Wife alleges that Husband’s abuse compelled her to separate and caused the marriage to fail. Misconduct causing or contributing to the breakup of a marriage constitutes an added burden. See Ballard, 77 S.W.3d at 118 (stating that “[w]hile misconduct found to cause or contribute to cause the breakup of a marriage would logically constitute an added burden, misconduct not rising to that level could still be found to constitute an added burden on the marriage, justifying a disproportionate division of marital property”). The record is silent on any other added burdens to Wife.

In Ballard, the court discussed marital misconduct and disproportionate property divisions. The court noted that the wife in that case did not present any evidence as to what specific added stress there may have been in the parties’ marriage, from marital misconduct, whether that stress be emotional or financial. Id. at 119. The record presented to us in this appeal is also silent on this type of evidence.

We do not think there is enough substantial evidence, based upon the record before us, that Husband’s misconduct in this case can support the trial court’s decision to award Wife ninety-three percent of the marital assets and twenty-seven percent of the marital debt. It is important to emphasize that this court is mindful of Husband’s misconduct as recited in the record and does not, by this decision, underestimate the severity of that misconduct. Unfortunately, because we do not think that the application of the evidence to the factors set forth in section 452.330 supports such a disproportionate award, we must reverse that portion of the judgment dividing the marital property and debt in that an abuse of discretion has occurred. Husband’s second point is granted.

Decision

We remand this case, with specific directions, for the trial court to conduct additional proceedings in order to complete a division of the marital property and debt not inconsistent with this opinion. All other portions of the trial court’s Judgment are affirmed and are not disturbed by this decision.

LYNCH, P.J. and SCOTT, C.J., Concur.

      . Our use of the term “trial court” is meant to represent the proceedings conducted before Family Court Commissioner Scott B. Tinsley ("Commissioner”) on January 8, 2009, whose findings were subsequently adopted by the Circuit Court of Greene County on February 5, 2009.

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

      . We note that highly disproportionate marital property divisions, including divisions where more than 70 or 80 percent of the property is awarded to one party, have been upheld numerous times. However, in our research, we found no cases approving such a disproportionate property division found by this Judgment.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Christopher W. WILLIAMS, Appellant.
    No. WD 71342.
    Missouri Court of Appeals, Western District.
    July 20, 2010.
    Christopher W. Williams, Farmington, MO, Appellant, pro se.
    Jeff Mittelhauser, Pettis County Prosecuting Attorney, Sedalia, MO, for Respondent.
    Before Division I: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Chief Judge, and CYNTHIA L. MARTIN, Judge.
   Order

PER CURIAM:

On May 30, 2000, Appellant Christopher Wayne Williams pled guilty to two counts of sexual misconduct involving a child, section 566.083, RSMo 2000. The Circuit Court of Pettis County, the Honorable Donald L. Barnes presiding, accepted Williams’s plea and sentenced him, pursuant to a plea bargain with the State, to five years’ imprisonment for each count. On June 8, 2009, Williams filed a motion to withdraw his guilty plea pursuant to Rule 29.07(d). On June 30, 2009, the circuit court, the Honorable Robert L. Koffman presiding, denied the motion. We affirm. Rule 84.16(b)(1).


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Rashaun GRAVES, Appellant.
    No. WD 69894.
    Missouri Court of Appeals, Western District.
    July 20, 2010.

      Laura G. Martin, Esq., Kansas City, MO, for appellant.
    Shaun Mackelprang, Esq., and Terrence M. Messonnier, Esq., Jefferson City, MO, for respondent.
    BEFORE Division One: LISA WHITE HARDWICK, Chief Judge Presiding, JAMES M. SMART, JR., and CYNTHIA L. MARTIN, Judges.
   Order

PER CURIAM.

Following a jury trial, Rashaun Graves appeals his convictions on three counts of first-degree robbery and one count of attempted first-degree robbery. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the judgment of convictions.

AFFIRMED. Rule 30.25(b).


text:
    Derrick BURNETT, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71049.
    Missouri Court of Appeals, Western District.
    July 20, 2010.
    Craig A. Johnston, for Appellant.
    Mary H. Moore, for Respondent.
    Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Derrick Burnett appeals from the motion court’s denial of his post-conviction motion and contends that his trial counsel was ineffective for failing to call two witnesses. After a thorough review of the record, we conclude that the judgment is based on findings of fact that are not clearly erroneous and that no error of law appears. An extended opinion would have no precedential value but a memorandum explaining our reasoning has been provided to the parties.

Judgment affirmed. Rule 84.16(b).