Calabrese v. Dwyer

616 S.W.3d 517

Dawn CALABRESE, Respondent,

v.Kelly DWYER, Appellant.

No. ED 108057

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

FILED: January 5, 2021

For Appellant: Cherlyn M. Crosby-Herberts, 501 First Capitol Dr., Ste. 2, St. Charles, MO 63301.

For Respondent: Cynthia Garnholz, Kristen L. Sparks, 7777 Bonhomme Ave., Ste. 1910, Clayton, MO 65105.

MICHAEL E. GARDNER, Judge

Kelly Dwyer appeals the trial court's Judgment of Partition, Child Custody and Child Support. This case arises out of a dispute between Dwyer and her former partner, Dawn Calabrese. Dwyer contends the trial court erred in (1) partitioning the proceeds of real estate by awarding each party an equal share, (2) ordering Dwyer to reimburse Calabrese for certain expenses relating to the real estate, (3) requiring Dwyer to pay all of the partition-related attorney fees, (4) not awarding Dwyer any non-partition-related attorney fees, and (5) ordering Dwyer to pay all of the guardian ad litem ("GAL") fees. The judgment is affirmed in part, reversed in part and remanded.

Factual and Procedural Background

Dwyer and Calabrese began their relationship in 1998 and shortly thereafter began living together in Dwyer's home (the "Diamond Pointe property"), which she had purchased earlier that year. They soon consolidated their finances by opening joint checking and joint savings accounts. Calabrese testified that she deposited all of her paychecks, bonuses, tax refunds, and other funds into a joint account. Dwyer likewise put all of her wages into the joint checking account with the exception of "$200.00 per paycheck per month" that she deposited into their joint savings account. Dwyer frequently transferred money between the joint accounts. The parties used the funds in the joint checking account to pay the mortgage, car payments, school loans, and other living expenses.

The parties had a commitment ceremony in 2008 and, three years later, Calabrese gave birth to two children whom Dwyer adopted. In 2011, Dwyer added Calabrese to the deed of the Diamond Pointe property, although Calabrese had been contributing to the mortgage since shortly after she had moved into the house.

Dwyer deposited stock disbursements into the joint savings account. According to Dwyer, the total amount she deposited was approximately $200,000 and she withdrew $50,000 to repay loans she used to make a reinvestment requirement with her employer. Calabrese testified she deposited money from school cost-of-living loans in the amount of approximately $110,000 into one of the joint accounts from 2002 through 2004.

The parties sold the Diamond Pointe property in 2013 and deposited the $36,000 in net proceeds into one of the joint accounts. Dwyer and Calabrese jointly purchased their new home (the "Prairie Lake property") in June 2013 and both parties were liable on the mortgage. The down payment and earnest money used for the purchase came from one of the joint accounts. They refinanced the Prairie Lake property in 2016 in order to obtain an interest-only loan, which required them to pay an additional $31,718.55 toward the property. Calabrese wrote the check for that amount out of the joint savings account. Dwyer testified that $70,777 was paid out of the joint accounts for various improvements to the Prairie Lake property, including widening the driveway and adding fencing, a deck and a treehouse.

The parties’ relationship ended in October 2017, but they both lived in the house until the following summer. On February 1, 2018, Calabrese filed her Petition to Determine Child Custody and Support in which she requested joint legal and joint physical custody of the children. Dwyer filed a counter-petition seeking the same. Calabrese also filed a separate Petition for Partition of Real and Personal Property, and the trial court consolidated the actions. The trial court appointed a GAL at Dwyer's request and ordered her to make an initial payment of $500 to the GAL. The trial court later ordered each party to pay an additional $750 in GAL fees, subject to reallocation at trial.

On July 16, 2018, the trial court entered a consent order in which the parties agreed to sell the Prairie Lake property and stipulated that Calabrese would pay the mortgage beginning August 1, 2018. Dwyer moved out of the Prairie Lake property on July 31, 2018, while Calabrese remained living there. The parties sold the Prairie Lake property in February 2019 and agreed to place the proceeds of $79,569.01 into escrow for the trial court to partition.

At trial, both parties asked for joint legal and joint physical custody of the children. There was testimony about behavioral issues with one of the children, but neither party ever alleged abuse or neglect. In its judgment, the trial court ordered Dwyer to be responsible for all of the GAL fees, which required her to repay $750 to Calabrese and to pay an additional $2,210 to the GAL.

With regard to the partition of the $79,569.01 in proceeds from the sale of the Prairie Lake property, Calabrese asked the trial court for an equal division while Dwyer requested the full amount. Dwyer showed the trial court a spreadsheet "tracing" her deposits of funds into the joint accounts and purportedly showing the use of those funds to pay specific expenses. She claimed that although the funds paid as part of the refinancing and the money spent on improvements came from the joint accounts, the sources of those expenditures were her stock disbursements and her deposits of "$200.00 per paycheck per month." Dwyer also asserted the down payment and earnest money used for the purchase of the Prairie Lake property came from her regular deposits out of her paycheck and "her portion" of the proceeds from the sale of the Diamond Pointe property. Additionally, Dwyer argued she should be credited for expenses that Calabrese failed to pay relating to the property, which reduced the equity to be divided between the parties.

The trial court awarded each party an equal share of the proceeds of the Prairie Lake property, noting that Dwyer failed to present business records affidavits to support her supposed tracing. The trial court found that "in recent years, [Calabrese's] contribution to the joint accounts by way of income has greatly exceeded [Dwyer's]." The trial court also noted that "[n]either party presented any evidence that different expenses were designated to come from one party's funds or the other."

Calabrese testified and presented documentation regarding expenses she had incurred in preparing the house to be sold, and the trial court ordered Dwyer to reimburse Calabrese $107.66 for half of those expenses.

The trial court also considered the parties’ dispute as to the payment of property taxes for the Prairie Lake property. Calabrese paid half of the 2017 taxes out of her separate funds after the parties separated. Dwyer claimed that she too had paid her share out of her own separate funds, but also admitted that between April and October 2017 she had withdrawn a total of $22,400 from one of the parties’ joint accounts without notifying Calabrese, who continued to deposit her paychecks into the account during that period. The trial court found that Dwyer had deposited that money into a separate account, which she used to pay her half of the 2017 property taxes. In light of these withdrawals, the trial court ordered Dwyer to pay Calabrese $3,112.69 representing half of the 2017 real estate taxes.

With regard to the 2018 property taxes for the Prairie Lake property, there was an unpaid balance due at closing in the amount of $4,724.07, which reduced the equity to be divided between the parties. Calabrese admitted that she had paid nothing toward that year's property taxes, but also claimed that Dwyer had not paid her full share. Also unpaid at the time of closing were the February 2019 mortgage payment and a utility bill in the amount of $93, both of which further reduced the equity. The trial court did not address in its judgment the reduction in equity caused by the unpaid taxes, the missed mortgage payment and the unpaid utility bill.

Calabrese testified that her attorney fees and expenses relating to the partition totaled $9,954.69. The trial court left the evidence open after trial to allow the parties to submit updated documentation of attorney fees. The trial court determined that at least 50 percent of the attorney fees and costs Calabrese incurred after she testified were related to the partition. The trial court concluded the total amount of partition-related attorney fees and costs was $15,612.54 and ordered Dwyer to pay the full amount. The trial court also ordered that Calabrese and Dwyer were each responsible for the remainder of their own attorney fees.

Standard of Review

The trial court's judgment "must be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Hale v. Hale , 180 S.W.3d 85, 89 (Mo. App. E.D. 2005). "We accept as true the evidence and reasonable inferences therefrom in the light most favorable to the verdict, and disregard all contradictory evidence and inferences." Id. We defer to the trial court's "superior ability to judge factors such as credibility, sincerity, character of the witnesses, and other intangibles not revealed in the transcript." Id. "The trial court may accept or reject all, part, or none of the witnesses’ testimony." Id.

Discussion

Division of Partition Proceeds

In her first point, Dwyer contends the trial court erred in awarding Calabrese 50 percent of the proceeds from the sale of the Prairie Lake property because the award is against the weight of the evidence. Specifically, Dwyer contends the trial court erred in not crediting her for: (1) the down payment and earnest money, (2) the funds paid to refinance the property, and (3) improvements made to the property. Dwyer also asserts the trial court failed to account for the fact that Calabrese...