# Buchholz v. Buchholz

> Missouri Court of Appeals · July 7, 2005 · 166 S.W.3d 146

URL: https://www.frixlaw.com/law-library/cases/9610521

## Case

- **Full name:** In Re the Marriage of Susan D. BUCHHOLZ, Petitioner-Respondent, v. Scot A. BUCHHOLZ, Respondent-Appellant
- **Court:** Missouri Court of Appeals
- **Decided:** July 7, 2005
- **Citations:** 166 S.W.3d 146; 2005 Mo. App. LEXIS 1036; 2005 WL 1580692
- **Precedential status:** Published
- **Opinion:** Concurring in part by Rahmeyer
- **Judges:** Phillip R. Garrison
- **Cited by:** 28 later opinions in the Frix Law Library

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## Opinion text

NANCY STEFFEN RAHMEYER, Judge,
concurring in part and dissenting in part.
I respectfully dissent from the portion of the majority opinion which reverses the child support and the amount of maintenance awarded. The trial court’s decision to impute income was based on its findings that Father’s testimony regarding the vol-untariness of Father’s reduction of income and the thoroughness of his subsequent job search were not credible, and I believe that we must defer to the trial court’s determination of credibility regarding the factual issues governing whether the imputation of income was appropriate. This Court’s determination that “the income and standard of living in the Buchholz family would have diminished whether the marriage had dissolved or not” is contrary to the express credibility determinations made by the trial court.
Although the majority opinion gives lip service to the standard of review, the opinion fails to apply any deference to the findings of the trial court and instead chooses to decide the case de novo. The majority opinion states, “the evidence is conflicting about [the] reasons” 1 for the financial difficulties of the business and *161 “there was a suggestion that increased competition from discount retailers contributed to it.” The majority opinion adopts the suggestion of increased competition as the sole basis for its conclusion that Husband’s decrease in income was involuntary. Furthermore, the majority opinion cites as “fact” that Wife refused to sign documents which would have provided financing to the corporation. The trial court, who actually heard the parties testify, made a specific finding that Husband’s testimony “in this regard [was] totally lacking in credibility.” The court found that “the overwhelming evidence suggested] that [Husband] repeatedly failed to provide requested financial records and information to lenders despite numerous requests from those lenders and creditors.”
Our standard of review requires that we sustain this judgment unless it lacks substantial evidentiary support, is against the weight of the evidence, or erroneously declares or applies the law. In re Marriage of Gerhard, 985 S.W.2d 927, 930 (Mo.App. S.D.1999). The decision to impute income involves the exercise of discretion, however, and we must review such a decision under the abuse of discretion standard. See Peniston v. Peniston, 161 S.W.3d 428, 433 (Mo.App. W.D.2005); Stanton v. Abbey, 874 S.W.2d 493, 499 (Mo.App. E.D.1994). Additionally, this Court must give due regard to the trial court’s opportunity to assess witness credibility and give deference to the trial court’s factual findings. Rule 84.13(d)(2); Ussery v. Ussery, 156 S.W.3d 810, 814-815 (Mo.App. S.D.2005). The trial court is better positioned than the appellate court to determine the credibility of witnesses, their sincerity and character, and other trial intangibles not apparent in the record. Greentree Properties, Inc. v. Kissee, 92 S.W.3d 289, 293 (Mo.App. S.D.2002). The trial court is therefore free to believe or disbelieve part, all, or none of the testimony of any witness, and may disbelieve even uncontra-dicted testimony. Shelby v. Shelby, 130 S.W.3d 674, 678 (Mo.App. S.D.2004); Linton v. Linton, 117 S.W.3d 198, 207 (Mo.App. S.D.2003). “When determining the sufficiency of the evidence an appellate court will accept as true the evidence and inferences from the evidence that are favorable to the trial court’s decree and disregard all contrary evidence.” T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989).
We, therefore, must ascertain whether substantial evidence supports the court’s finding and, accept as true, the court’s credibility determination of Husband’s testimony. A review of the evidence indicates ample testimony exists supporting the trial court’s decision regarding the vol-untariness of Husband’s financial demise. The most convincing evidence is that Husband testified extensively that his financial demise and ultimate bankruptcy were due to Wife’s refusal to cooperate with Husband’s efforts to refinance the business. In other words, Husband testified that the demise of the business was involuntary; were it not for Wife’s refusal to cooperate, the business would have been refinanced and it would have continued. Husband does not attribute the demise of the business to increased competition. Although it is possible that the business would have faced more competition from discount retailers than it did in the past, Husband’s testimony indicated that the main impediment affecting the health of his business was Wife’s refusal to cooperate.
The trial court found Husband’s testimony to be totally lacking in credibility, however, and the majority opinion overlooks and fails to cite the evidence which contradicted Husband’s. Essentially, the majority overlooks the evidence that indicates that Husband’s financial demise was volun *162 tary. Wife offered evidence of letters from two of the business’ lenders stating that Husband had failed to provide the necessary financial information to avoid default. Despite receiving these letters, Husband did not prepare the requested financial statements. All of this evidence, particularly the letters indicating that Husband intentionally defaulted on the loans, provided substantial evidence for the trial court’s conclusion that Husband voluntarily reduced his income without justification. That premise, that Husband intentionally reduced his income without justification, forms the basis for the award of maintenance and child support.
Moreover, Wife also presented further evidence indicating that Husband voluntarily reduced his income by detailing the financial success of Husband’s live-in girlfriend, Sue Rink. Husband was romantically involved with Rink, his personal assistant, when Husband and Wife separated in 1993. Husband testified that in 1997, Rink became the second-highest manager of the company. Husband also testified that from 1998 to 2002, Rink was paid more than any other employee of the company, other than Husband. According to Husband, Rink accumulated various real property interests, including 60 acres in Christian County, Missouri, and a home in Greene County, Missouri, during her employment with the company. Rink also bought and sold a condominium in Greene County during her time with the company, and Husband paid the dues on her condo on more than one occasion. Although Rink did not testify and explain how she acquired the real estate, Husband testified that he was unaware that Rink had any other sources of income to use to make these purchases other than her income from her employment at Colony Magna-vox. Furthermore, Husband also did not adequately explain why $175,000 was shown as missing from the company’s inventory, nor could he explain multiple deposits and withdrawals of $15,000 from his personal banking account. As the trial court noted, Husband’s girlfriend was the one person who had “apparently flourished financially in the aftermath of’ Husband’s bankruptcy.
Given that Husband and Rink were involved romantically during her employment with Colony and that they moved in together shortly after Husband and the business declared bankruptcy, Rink’s financial flourish provided ample evidence for the trial court to question the volun-tariness of the demise of the business. Furthermore, as mentioned above, the trial court found Husband’s explanation that the bankruptcy was involuntary to be totally lacking in credibility. Thus, the trial court had substantial evidence to conclude that Husband voluntarily reduced his income.
Accordingly, I disagree with the majority’s conclusion that nothing in the record indicated that Husband’s diminished income was the result of a deliberate or voluntary attempt to avoid his support obligations to his family. The timing of the events surrounding the collapse of the business illustrates Husband’s decision to dissipate the marital estate. Husband attempted to obtain additional financing and his lenders requested that he send them financial information necessary to secure financing. After Wife filed for divorce, Husband refused to provide the requested financial information to his lenders. The business collapsed, both Husband and the business filed for bankruptcy, and Husband moved to Ohio to live with his girlfriend. The trial court had sufficient evidence to support its conclusion that Husband voluntarily reduced his income to escape his responsibilities to his. family, and to the extent that the trial court based its conclusion *163 on its credibility determinations and factual findings, we are obligated to defer to its conclusion. See Hill v. Hill, 53 S.W.3d 114, 117 (Mo. banc 2001).
I find further support for the trial court’s decision to impute income in its findings that Husband failed to use his “best efforts” to obtain a new job after his business collapsed. The trial court found that Husband is currently underemployed and that he failed to use his best efforts in maximizing his earning potential in his new job. According to the trial court, Husband’s testimony explaining that he put forth his best efforts to find employment was, like his testimony regarding the demise of the business, not credible. The majority opinion, while again stating as fact that Husband did put forth his best efforts, cites as fact that Husband sent at least thirty resumes to prospective employers in the general area of Independence, Kentucky, and .that he had at least twenty-two interviews with only one job offer. The record does include at least thirty cover letters, but it is impossible to tell from the letters whether any of them were actually sent or not. Additionally, although Husband testified to approximately twenty-two “interviews,” the number of companies he claimed to interview with was only eleven. The majority opinion uses the additional contacts Husband claims to have had with the eleven companies to arrive at twenty-two interviews. But again, the trial court found that Husband’s testimony regarding the sufficiency of his job search was not credible. I believe we should defer to that determination. Id..
Despite working in the electronics retail business in Springfield for 23 years, Husband limited his job search to Cincinnati, Ohio, which is an area where he was unlikely to have any business contacts. Husband did not apply to any retail or sales businesses in the Springfield area. If Husband truly wanted to capitalize on his management and sales experience, I believe, as the trial court likely did, he would have at least tested the market in the area where he spent 23 years building his business reputation by sending his resume to at least one business in the area. Instead, he limited his search to an area where business owners would have been unfamiliar with the success of his business in prior years. The trial court thus had substantial evidence to conclude that Husband is currently underemployed because he failed to use his best efforts to obtain a new job and the court justifiably imputed income on those grounds.
For the reasons above, the trial court’s decision to impute income was not an abuse of discretion. Furthermore, I believe the trial court had substantial evidence to set the imputed income at the level that it did. In Garrison, we overturned the trial court’s imputation of income to the husband because the imputed figure itself was not supported by substantial evidence. In re Marriage of Garrison, 846 S.W.2d 771, 776-77 (Mo.App. S.D.1993). Although we found that the trial court did properly impute income, we concluded that the amount of imputed income was not supported by the record. Id. We found that the wife offered no evidence that the husband had the capital, access to capital, or the entrepreneurial abilities to start a new business that would generate income at the level of the imputed income. Id. at 776 . We also found that the wife did not offer any evidence that the husband had management skills, experience, education, or other background that would persuade someone to hire him at the level of the imputed income. Id.
Here, unlike Garrison, the record includes Husband’s income for the years im *164 mediately preceding the dissolution. “[C]ourts must look at past and present income in toto and consider a party’s complete earning history as evidence of ability to pay maintenance.” In re Marriage of Baker, 986 S.W.2d 950, 955 (Mo.App. S.D.1999). Averaging income to project a continuing level of income is permissible. In re Marriage of Kohring, 999 S.W.2d 228, 234 (Mo. banc 1999). Furthermore, the record does show that Husband had the management' skills, experience, and education to earn -the level of income he earned in the three years prior to the dissolution. Without such experience and education, Husband would not have been able to earn what he did in those years as he worked his way into the ownership of the business. Additionally, the record contained evidence from which the trial court could have found that Husband had access to capital to start a new business, or to continue his former one. . The banks refused further loans because Husband did not submit proper paperwork for the loans, not because of the economic demise of the business.
In Ussery , this Court deferred to the credibility findings of the trial court when it found that the appellant was voluntarily underemployed when it was undisputed that the appellant had diabetes and had lost his license for failure to. pay child support pursuant to section 454.1003.1(1). Ussery, 156 S.W.3d at 814-15 . This Court relied upon the trial court’s findings, which indicated that the appellant had presented no evidence concerning the availability, or lack of availability, of alternate transportation. Id. at 814 . In affirming the trial court, this Court used an abuse of discretion standard'. Id. at 815 .
Likewise, in Linton , this Court deferred to the “trial court’s implied assessment” that Wife was underemployed. Linton, 117 S.W.3d at 208 . Again, citing our standard of review and prior cases, we noted that the trial court determines credibility and assigns weight to evidence and testimony. Id. We correctly cited substantial case law that the trial court was not confined to a consideration of present earnings but could consider prior earning capacity and probable future prospects. Id.
Thus, because the Husband had the capacity to earn income at the level of the imputed income, but voluntarily refused to do so, the trial court properly calculated the amount of imputed income. I would therefore affirm the entire decision of the trial court.
. The acknowledgement-that the evidence is conflicting alone should provide the basis for deferring to the trial court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9610521. Public record. Not legal advice.