1. JURISDICTION, PROCEDURE, EVIDENCE

Amendment to Section 516 RSMo:

Senate Bill 10 was signed by Governor Holden on June 13, 2001 and became effective as of August 28, 2001. The bill amended the ten-year statute of limitations on judgments contained in Section 516.350 RSMo. by excluding judgments for the division of pensions and retirement benefits, assignment of life insurance benefits, and other employee benefits from the application of the ten-year statute of limitations. In pertinent part, the language of the statute as amended is as follows:

516.350.1 Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, except for any judgment, order or decree awarding child support or maintenance or dividing pension, retirement, life insurance, or other employee benefits in connection with a dissolution of marriage, legal separation, or annulment which mandates the making of payments over a period of time or payments in the future, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatsoever. An action to emancipate a child, and any personal service or order rendered thereon, shall not act to revive the support order.

516.350.3 In any judgment, order, or decree dividing pension, retirement, life insurance, or other employee benefits in connection with a dissolution of marriage, legal separation or annulment, each periodic payment shall be presumed paid and satisfied after the expiration of ten years from the date that periodic payment is due, unless the judgment has been otherwise revived as set out in subsection 1 of this section. The subsection shall take effect as to all such judgments, orders, or decrees which have not been presumed paid pursuant to subsection 1 of this section as of August 28, 2001.

SB10 addresses a problem which appeared in a line of cases in recent years beginning with Hanff v. Hanff, 987 S.W. 2d 352 (Mo. App. E.D. 1998). In that case, the former wife learned after her former husband's death that he had failed to designate her as a beneficiary on his life insurance policy as provided in a 13-year old decree. The court of appeals held her action to remedy the problem was barred by Section 516.350, as the judgment had never been revived. The same reasoning was applied in May of 2000 in Starrett v. Starrett, 24 S.W. 3rd 211 (Mo. App. E.D. 2000), to bar the entry of a qualified domestic relations order to effect the division of a pension as provided in a judgment more than ten years old.

In Ochoa v. Ochoa, the Eastern District Court of Appeals originally held the new statute could not be applied retrospectively to allow the entry of a QDRO to effect the transfer of an interest in a pension, pursuant to a decree entered more than ten years prior. "Once an original statute of limitation expires and bars the plaintiff's action , the defendant has acquired a vested right to be free from suit, a right that is substantive in nature. Thus, an amended statute cannot be applied to revive the cause of action in that it would contravene Mo. Const. Article 1, Section 13, prohibiting the retrospective application of a law affecting a substantive right…Once the ten-year period ran, Husband acquired a substantive right to be free from suit. Therefore, the new version of Section 516.350 cannot be applied retrospectively." Ochoa v. Ochoa, EDMo slip op. no. 78368, filed September 11, 2001. However, upon transfer, the Missouri Supreme Court held the property right in the pension was acquired by the alternate beneficiary upon entry of the judgment, and that the presumption of payment after ten years set forth in Section 516.350 was irrelevant. In doing so, the Supreme Court relied upon 452.330.5RSMO, which allows the court to modify or establish a QDRO indefinitely. Ochoa v. Ochoa, Mo. banc slip op. no. 83966, filed April 9, 2002.

Question for discussion: Why does the Supreme Court say that Hanff and Starret are inapposite to this issue? Does Ochoa only apply to the division of qualified retirement plans, and not to other property interests? Why wouldn't it apply if, as the Supreme Court says, the property interest is awarded upon entry of the judgment?

Change of judge-juvenile proceeding-
In juvenile court proceedings the change of judge is governed by Rule 126.01(b) MRCP, requiring an application for change of judge to be filed within 5 days after a date for trial on the merits has been set. For purposes of this rule, "trial" means "on the merits" (citing State ex rel. Cohen v. Riley, 994 SW 2d 546 (Mo. banc 1999) and the fact that the parties had already appeared for two preliminary hearings did not waive the right to the change of judge upon notice of the trial being set. State ex rel. Stubblefield v. Bader, Mo. banc slip op. no. SC83858, filed 2/13/02.

Default- relief from judgment under 74.05 MRCP--
Rule 74.05(d) requires a party to state facts, within the body of a motion to set aside a default judgment, which constitute a meritorious defense. Mere allegations that such defenses exist are insufficient to sustain a setting-aside of the judgment. Lewis v. Shields, 25 SW 3d 554 (WDMo May 2, 2000). Generally, refusal to set aside default judgment is discretionary. However, where child custody is involved, the strict rules pertaining to such judgments are less rigorously applied, and such a judgment is reviewed with heightened scrutiny. Ascoli v. Ascoli, 32 SW 3d 167 (E.D. Mo. November 21, 2000).

Default- relief available-
Court lacks jurisdiction, in default, to enter orders for relief which was not initially demanded in petition as originally filed and served. Kocsis v. Kocsis, 28 SW 3d 505 (EDMo October 17, 2000).

Judgments- conditioned upon reaching a negotiated settlement -void-
Trial court vacated a judgment entered in absence of any evidence by the husband because the husband, although not in default, failed to appear due to a misunderstanding with counsel. Husband moved to set aside the judgment under Rule 75.01. Motion was granted, and in its order, "the court hereby vacates and reopens this judgment under rule 75.01" The court included language stating the cause was re-opened for thirty days to resolve all issues, and upon failure to negotiate a settlement, the court would re-enter the original judgment. Court of appeals: "It is beyond the powers of a court to force parties to settle." When the court found good cause for the husband's absence and vacated its prior judgment, the parties were restored to their previous status and the posture of the case was as though the original judgment was never entered. Due process required the court to give the husband a meaningful opportunity to be heard on the merits. Cella v. Cella, 41 SW 3d 629 (EDMo. April 10, 2001).

Limitation of Actions—medical insurance premium payments- res judicata
Enforcement of a 1977 judgment requiring former husband to pay medical insurance premiums for his former wife was not time-barred by Section 516.350 RSMo. Thus, although the judgment was more than ten years old at the time of the contempt trial, and there had been no attempt made to revive the judgment, the court of appeals found the award was additional maintenance and that therefore it was excluded from the ten-year revival requirement. Citing several cases which held that insurance is a form of maintenance, the Court of Appeals held that the particular payments in issue were not more than ten years in arrears in any event. However, in an interesting twist, the Court found that the claim for part of the arrearage was barred by the doctrine of res judicata. There had been a prior contempt motion filed on a maintenance arrearage as well as the unpaid health insurance premiums. However, at the time of disposition the movant deferred the health insurance issue and effectively abandoned it until filing the later contempt action. In so doing, the movant had violated the rule against splitting a cause of action. Foster v. Foster, 39 SW 3d 523 (EDMo January 30, 2001).

Personal jurisdiction--
Missouri court did not have personal jurisdiction over a respondent who, although married in this state, left days later to reside elsewhere for over twenty years and never returned. This nominal presence in Missouri for several days during a marriage of 24 years' duration did not satisfy the Missouri longarm requirement of Section 506.500 that the party have "lived in lawful marriage" in this state. Thus, the PDL judgment entered against the respondent was held to be void for lack of personal jurisdiction. Wray v. Wray, EDMo slip op. no. 79716, filed 1/29/02.

Service improper- failure of personal jurisdiction-
Where special process server Don Vollmert was appointed, but the return of service was executed by his associate, service was improper and there was no personal jurisdiction. "The special process server's return, unlike the Sheriff's, is not presumed conclusive" a party who elects to use a special process server does so at his or her own risk and bears a heavy burden of showing that every procedural requirement has been met." Reisinger v. Reisinger, 39 S.W. 3d 80 (EDMo filed March 13, 2001).

Subject matter jurisdiction---
Wife, who had lived in Missouri and owned a home here for several years, moved to Wisconsin from February to August of 1999 and lived with her husband in temporary, employer-provided quarters. Her husband had been transferred in his employment. The wife returned to Missouri in August and filed her petition. In determining whether or not she was a resident of Missouri for the requisite ninety-days prior to filing, the court found it significant that she refused to sell her Missouri home during the six months of her absence, turning down a number of offers to purchase, including one for the full price. Accordingly, although she was not physically present in the state for ninety days prior to filing, she had no intention to change her domicile from Missouri when she left to be with her husband in Wisconsin, and remained a Missouri resident. Bridgeman v. Bridgeman, EDMo slip op. no. 78955, filed 1/2/02.

Time limitations on trial-
Trial court erred in excluding a final witness in respondent's case, even though respondent had used up all time allotted to her during for her share of the trial. "If the evidence on essential points cannot be fully developed within the allotted time the court must show some flexibility. Counsel are normally the best judges of the time they require to develop their cases and of the need for cross-examination, which often depends on the clarity and candor of the direct testimony. Intervention by the court may sometimes be necessary but should not be the rule. The court's primary responsibility is to see that the issues are fully presented. BJD v. LAD, EDMo slip op. no. 75612, filed June 13, 2000 (motion for rehearing/transfer pending as of July 19, 2000). BUT SEE Brady v. Brady, 39 SW 3d 557 (EDMo March 20, 2001), and LJB v. LWB, 921 S.W. 2d 23, 27 (Mo. App. 1996) for a contrary opinion.

2. CHILD CUSTODY

Findings required-when--Section 452.375.6
If the parties have not agreed to a custodial arrangement, or the court determines such an arrangement is not in the best interests of the child, Section 452.375.6 RSMo requires the court to have made specific findings, in writing, which detail the specific relevant factors that caused the court's own determination on child custody to be in the best interests of the child. Failure to include such specific findings warrant reversal and remand for entry of such findings. Duvall v. Duvall, EDMo slip op. no. 78818, filed 2/13/02.

Grandparent visitation-
In a suit to establish grandparent visitation, the matter was continued after the first day of trial to a second date two months later. The trial court ordered grandparent visitation, on an interim basis, to take place on two dates in advance of the second trial day. Parents filed a petition for a writ of prohibition. The writ was made absolute when the court of appeals found it was an abuse of discretion to order temporary grandparent visitation during the interim period between the two trial dates. This, because the parents are entitled to a full and fair opportunity to present their case in opposition. The court did not reach the parents' constitutional challenges to the grandparent statute because the trial court had not yet ruled on these. However, in the absence of exigent circumstances, and given the fundamental nature of the parental rights at issue, the trial court should not have prejudged the case by awarding temporary visitation rights without hearing all of the evidence. McRaven v. The Honorable Scott Thomsen, 55 SW 3d 419 (EDMo September 4, 2001).

Religious beliefs
Inquiry into religious beliefs per se is unquestionably improper. However, inquiry into matters of child development as impinged upon by religious convictions is permitted. Here, the issue was a cult. EDMo slip op. no. 77871 filed October 23, 2001.

Relocation-4-factors test abrogated by Mo. Supreme Court-
The 4-factor test set forth in Michel v. Michel, 834 SW 2d 773,777(Mo. App. 1992) for determining the best interests of children in the event of a proposed relocation has abrogated by the Missouri Supreme court in light of the 1998 amendment to Section 452.377.10(2). Prior to the 1998 amendment to section 452.377, the courts approved a relocation if it was in the best interests of the child. The child's best interests were measured by a four-part test set out in Michel. In lieu of this test, Section 452.377 now requires the court to determine that the relocation 1) is in the best interests of the child, (2) is made in good faith, and (3) if ordered, complies with the requirements of subsection 10. Michel's four part test is inconsistent with these statutory requirements and shall not be used in determining the child's best interests. Stowe v. Spence, 41 SW 3d 468 (Mo. banc April 10, 2001).

--Relocation was denied, and the trial court was affirmed, in, 50 SW 3d 864 (EDMo May 29, 2001), in which it was held that section 452.377 RSMo (2000) has broadened the inquiry in a relocation case to any substantial evidence bearing on the good faith of the custodial parent and/or the best interests of the child. Section 452.377.9 RSMo. The trial court found that the mother acted in good faith seeking the relocation, but that the move was not in the best interests of the child.

--Relocation was allowed, and the trial court was affirmed, in Siegfried v. Remaklus. In this case, the court's decision was framed in terms of the Michel 4-part test. The court of appeals held this was not fatal to the court's ultimate disposition of the relocation issue. The four Michel factors are now simply evidence, rather than a test, because the test is in the statute. In its judgment issued four months before the Stowe decision, the trial court made specific findings with reference to the four factors. However, the trial court's use of the Michel test does not require the appellate court to reverse if the court's judgment does not violate the statute and properly considers all relevant factors. Here, the trial court specifically found that relocation was in the best interests of the child. Siegfried v. Remaklus, ED Mo slip op. no. 78949, filed November 20, 2001.

Change in circumstances of non-custodial parent-
The trial court erred when it modified a joint custody judgment by awarding sole custody to the father, based upon father's motion to modify. His motion alleged the existence of a change in the circumstances of the non-custodial mother as a basis for his requested modification. The plain language of Section 452.410 RSMo requires the change to be in the circumstances of the child or his custodian, and not the non-custodial parent, to warrant a modification of child custody. Cause was reversed and remanded for reconsideration. In its opinion, the court of appeals suggested to the movant that, to the extent the change in the mother's circumstances operated to change the circumstances of the child, the cause could be recast as a change in the circumstances of the child on remand. Mallett v. Mallett, EDMo slip op. no. 79271, filed 12/11/01.

3. CHILD SUPPORT-

Abatement- Child support for college student-impliedly forbidden-
Trial court ordered husband, in addition to paying child support, to pay a percentage of the child's post-secondary education costs. Appellant husband argued the trial court erred in failing to give him credit against his child support obligation for room, board, and other items supplied by the education institution. The circumstances under which child support may be abated are controlled by Section 452.340.2. Abatement is thus impliedly forbidden under all other circumstances. Section 452.340.2 does not provide for abatement while a child attends college. Therefore, we find the trial court did not err in ordering Husband to pay one-half of the college education for each child. McGowan v. McGowan, 43 SW 3d 857 (EDMo. March 6, 2001).

Child support-emancipation-
The failure of a child to provide a parent with the documents required by Section 452.340.5 does not, in and of itself, result in emancipation. The child's failure to comply for one or more semesters relieves the parent of his or her obligation to provide child support during that semester or those semesters only, but not for future payments (assuming ultimate compliance). Lyons v. Sloop, 40 SW 3d 1 (WDMo February 13, 2001).

Emancipation-interruption in schooling-
Child who interrupted college attendance for 8 months to join the national guard was not emancipated, where evidence showed the purpose of the 8 month hitch was help finance his continued attendance at school. DCSE v. Williams, EDMo slip op.no. ______filed April 23, 2002.

Imputed income-allowed
Court did not abuse its discretion in imputing income of $6.00 per hour for 50 weeks each year to a 52 year old mother. "Mother cannot evade all financial responsibility for the children and place the entire financial burden of supporting the children on the father." However, it was error for the court to impute income on property awarded to her more than 10 years ago, without substantial evidence that the property still exists. Burton v. Donahue, EDMo slip op. no 77517, filed March 27, 2001.

Imputed income-failure of proof-
Mom failed to prove substantial evidence of Dad's income. The sole evidence in the record was:

Q: We've imputed income to your former Husband because he is self-employed, and we don't have any records of his employment, of $4,000 per month, correct?
A: That sounds right, yes.

On the basis of this compelling evidence, the trial court imputed income to the father of $4,000 per month. Reversed. Proof that a parent has previously made more money is not, alone, a sufficient basis to impute income. Baker v. Baker, EDMo slip op. no. 78903, filed October 2, 2001.

Incapacitated child--support beyond age of emancipation
Trial court judgment which failed to extend father's child support obligation for a 27 year-old son who was disabled by a brain virus contracted at age 13, was reversed. Father had agreed in 1992 separation agreement to pay child support to age 21. In 1998, six years after child support terminated, mother moved to extend father's child support obligation as the child was living in a residential care facility and his expenses exceeded his income. The language of 452.340 is that "if the child is physically or mentally incapacitated from supporting himself AND insolvent" the court may extend the child support obligation. As the child's income from medicaid and SSI did not cover all of his expenses, he was deemed insolvent and the trial court should have extended child support retroactive to service date of the motion. The court declined, however, to extend the retroactive support back to 1992, stating that Mother had the ability to file sooner and the trial court could not award child support prior to the filing of the action. Lueckenotte v. Lueckenotte, 34 SW 3d 387 (Mo. banc 2001).

4. MAINTENANCE

Earnings on retirement assets considered-when-
Trial court, in calculating maintenance award, should consider income on pension, IRA, and other retirement assets, where appropriate. Income from these accounts, if any, must be calculated on a case-by-case basis, based on the facts and circumstances of each case, including the cost to convert the account to cash, the age of the parties, their intention as to the accounts, the relative division of marital and non-marital property, and marital debts, and any equitable adjustment for reasonably certain taxes and expenses. In this case, Wife seeking maintenance was nearly 58 1/2 on the dissolution date, and was awarded approximately 500,000 in retirement accounts. The Supreme Court took great pains to note that the rule is not absolute, and that rather the circumstance of each case should be considered on their own merit. Shook v. Shook, 997 SW 2d 103 (Mo. App. S.D. 1999) and similar cases should not be followed to the extent they require imputing income from retirement and IRA accounts in every case. Hill v. Hill, Mo. banc filed July 24, 2001.

Earnings on retirement assets considered- when--
Trial court was reversed where 5000/ month maintenance award did not contemplate the income reasonably expected to be earned on a 1.3 Million dollar IRA account awarded to the Wife. Evidence at trial was presented that pursuant to the annuitization provisions of Section 72 of the Internal Revenue Code, Wife could withdraw approximately $4,200 per month from the earnings on her IRA account, without ever invading the corpus of the asset. There was no indication in the judgment that this evidence was ever considered by the trial court in calculating the maintenance amount. Fischer v. Fischer, EDMo slip op. no. 77402, filed November 6, 2001.

Maintenance- imputed employment income---
It was an abuse of discretion for the commissioner to impute future employment income to a homemaker who had not worked outside the home for the duration of the marriage and had devoted her time to raising the parties' four children. This, despite the fact that she earned a masters' degree in health administration nineteen years before the trial. In awarding maintenance, the court may not speculate on what the future may justify. To impute income to this party based upon her possible employment in the future, in the field in which she was educated some nineteen years prior and in which she had never been employed, was an abuse of discretion. Breihan v. Breihan, EDMo slip op. no. 78894 filed 1/29/02.

Maintenance- imputed interest income--
It was an abuse of discretion to assume the party seeking a maintenance award could earn interest on her financial holdings at a rate that would cause her to have to invest aggressively, and thereby placing the holdings at higher risk. In this case, the court had imputed an interest rate of 6%. The court of appeals held this rate was not a reasonable one, and that she should not be required to risk the loss or diminution of her assets in order to generate higher rates of return. The imputed rate should have been based upon the current value of the property and currently reasonable expectation of interest income. Breihan v. Breihan, EDMo slip op. no. 78894 filed 1/29/02.

Modification reversed- receipt of government benefits designed to lessen the impact of poverty should not be considered when deciding if a substantial and continuing change of circumstances has occurred. Food stamps and subsidized housing are designed to aid those who cannot meet their needs by any other means. They are no intended to alleviate one's lawful obligation of support to another. Martino v. Martino, EDMo slip op. no. 76935, filed October 17, 2000.

5. DIVISION OF PROPERTY

Civil Service Disability Retirement marital-when
Court finds husband's interest in his federal civil service disability retirement plan was mostly marital, where the husband was already entitled to retire at the time he became disabled, and would have been entitled to receive the funds upon retirement anyway, without regard to whether he had become disabled. To the extent the retirement benefits were for his disability and intended to replace future lost earnings due to the disability, this portion of the plan is separate property. Cranor v. Cranor, S.D. Mo. slip op. no. 24125, filed April 25, 2002.

Commingling applied to real estate-
Where husband, in anticipation of marriage, sold his previous home and put part of the proceed as a down payment on 35 acres, then took out a deed of trust to build house in his name alone, but after marriage parties took out new joint loan and jointly contributed to paying the deed of trust, used the residence as their marital residence, trial court did not abuse its discretion in finding the residence and 35 acres should be considered marital property on account of commingling, even though husband's name the only name on title. Beckham v. Beckham, WDMo slip op. no. WD58405, filed April 3, 2001.

Conveyance to spouse from other spouse pursuant to estate plan-
Trial court was free to look behind quitclaim deed from wife to husband during marriage, which conveyed farm to husband for no consideration. Husband argued conveyance was a gift to him; wife claimed the conveyance was to effectuate an estate plan. Trial court found "no credible evidence to support husband's contention that the property was gifted to him." Brady v. Brady, 39 SW 3d 557 (EDMo March 20, 2001).

Corporation- assets purchased by corporation cannot be divided-
Where evidence of both parties concurred that certain non-titled personalty was purchased with corporate funds, the court must treat the assets as assets of the corporation and cannot divide them between the parties. Wendel v. Wendel, S.D. Mo. slip op. no. 24230, filed April 29, 2002.

Disproportionate division held an abuse of discretion-
An award of 96% of the property to Husband after a 14 month marriage, where he contributed all the money to the acquisition of the marital estate was reversed as being an abuse of discretion where evidence demonstrated he had been abusive to Wife. Shipp v. Shipp, SDMo slip op. no. 23988, filed November 19, 2001.

Gift burden of proof--
Husband testified that the 1000 shares of stock he owned in a family business were gifts to him from his father. Husband's father also testified as such. Wife testified the shares were conveyed to Husband as compensation for his labors during the marriage, specifically to reimburse expenses advanced on behalf of the company. However, there were no documents in evidence to corroborate the testimony of husband and his father, specifically no documents evidencing the conveyance, no gift tax returns, etc. The trial court was affirmed in finding that husband failed his burden to prove, by clear and convincing evidence, that the stock was acquired by gift, and that therefore the stock should be treated as marital property. Shelton v. Shelton, EDMo slip op. no. 76914, filed October 24, 2000.

Income or property? You decide!-
Court erred in failing to allocate $3000 found in a safe deposit box of Husband's. Court declined to allocate these funds on the theory that it had already considered H's income for purposes of calculating child support. "The fact that the amount of Husband's income was considered in determining his child support and/or maintenance obligation has no bearing on the classification of income acquired prior to the date of separation or dissolution of marriage as marital property." Livingston v. Livingston, WDMo slip op. no. 59607, filed October 30, 2001.

Joint title superceded by decree-
Divorce decree awarded all of Husband's interest in a joint bank account to Wife. Wife never removed Husband's name from the account. Wife died 11 years later. Held: entire account went to Wife's estate because the four unities of time, title, interest and possession were severed at the time of the divorce. However, a brokerage account which was established after the dissolution and which was in joint names of the parties went to Husband upon Wife's death. In re Wax, 2001 WL 709307 (Mo.App.E.D. June 29, 2001).

Partnership agreement-terms not dispositive as to valuation in divorce-
Trial court was not bound by terms of partnership agreement for law firm in determining fair market value of partner's interest. Agreement provided that husband's interest in his law firm was limited to the value of his capital account (approx. $25,000). However, trial court considered testimony of accountant who valued husband's percentage interest in all tangible assets of law partnership including but not limited to checking account, cash, investments, attorney and client advances, office equipment and other fixed assets, accounts receivable, and work in progress, all subject to a discount for lack of marketability and minority ownership discounts. The trial court is in the best position to determine whether the buy-sell agreement constitutes competent evidence of value. L.R.M. v. R.K.M., 46 SW 3d 24 (EDMo March 27, 2001).

Pension-retirement date, not divorce date, determinative as to value of entire pension-
Trial court correctly declined to divide Husband's pension according to a formula that assumed Husband retired on the date of the divorce decree. Husband argued that to do otherwise allowed his former wife to include his post-dissolution earnings in her award. However, court of appeals said Husband's argument "has been addressed and rejected many times in the courts of this state." In Lynch, 665 SW 2d 20 (EDMo 1993) the husband made the same argument. In response, the Lynch court stated "the award to the wife of a portion of the whole benefit is, at this point, an award of rights, the value of which cannot be fixed with precision until they mature. A present division of those rights which allows the wife her share of their value, when and if they mature, does not award her after-acquired separate property of her former spouse. Rather, such a division on those conditions merely assures that the parties' qualitative parity of interest will be maintained and that their respective interests in the rights that the court divided will remain of equal value." Correct formula: numerator: value of pension at decree date; denominator: value at retirement. Ward v. Ward, 34 SW 3d 288 (WDMo December 26, 2000).

Unvested Stock Options- marital property-
Huband and wife separated in February of 1997. The first day of trial was January 14, 1998. Trial did not resume until April 28, 1998. Between day one and day two of trial, husband took job with America Online and as part of his employment was granted certain stock options. Husband argued that since the options require his continued employment after divorce in order to vest, they should not be treated as marital property. Trial court, likening the options to Kuchta pension, found the options should be considered marital property and the "wait and see" approach as to value should apply. However, court of appeals did not discount the possibility that husband's argument could carry the day in another case. In this case, neither party requested findings of fact and therefore the appellate court presumed the facts were found at trial in a manner consistent with the trial court's judgment that the options were marital. Warner v. Warner, 46 SW 3d 591 (WDMo April 24, 2001).

6. TORTS

Marital tort- res judicata effect-
Prior to the hearing on wife's petition for dissolution of marriage, wife filed a suit against her husband, alleging assault and battery. In the dissolution action, wife alleged marital misconduct by husband because of his physical violence to her. The Family Court Commissioner entered findings in the dissolution action that neither party committed misconduct. Wife did not appeal that finding. In the tort action, husband moved for summary judgment, citing the findings in the dissolution case as res judicata and collateral estoppel. The trial court entered summary judgment for husband and granted wife attorney's fees and expenses as sanctions against husband. Both parties appealed. Held: the trial court erred in granting the motion for summary judgment as the nature of the two actions were so distinct that one could not preclude the other and wife had a fundamental right to trial by jury on her tort claim. The court affirmed the trial court's imposition of sanctions against husband since he waited until the week before trial to file his motion for summary judgment. Sotirescu v. Sotirescu, 2001 WL (Mo.App.E.D. June 12, 2001).