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CourtListener opinion 11097676

Date unknown · US

Extracted case name
pending
Extracted reporter citation
608 S.W.2d 405
Docket / number
pending
QDRO relevance 5/5Retirement relevance 5/5Family-law relevance 5/5gold label pending
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Machine-draft public headnote: CourtListener opinion 11097676 is included in the LexyCorpus QDRO sample set as a public CourtListener opinion with relevance to pension / defined benefit issues. The current annotation is conservative: it identifies source provenance, relevance signals, and evidence quotes for attorney/agent retrieval. It is not a Willie-approved legal headnote yet.

Retrieval annotation

Draft retrieval summary: this opinion has QDRO relevance score 5/5, retirement-division score 5/5, and family-law score 5/5. Use the quoted text and full opinion below before relying on the case.

Category: pension / defined benefit issues

Evidence quotes

QDRO

uant to qualified transfer to an IRA or other qualified plan account in [wife]'s name and at the financial institution determined by [wife]. In the event of a Qualified Domestic Relations Order is necessary, the [c]ourt shall retain jurisdiction to enter a QDRO to accomplish the intent of this provision[.] [Husband] will pay any fees associated with the division and transfer of the property equalization[.] This transfer shall occur within [thirty] 30 days of the date of dissolution of marriage. (Emphasis added). In September 2020, the trial court entered a Qualified Domestic Relations Order (QDRO) 1 The ju

retirement benefits

and in the settlement agreement, which are not at issue in this appeal. 2 the intent of which was to pay out the equalization payment to wife. The QDRO stated that wife was entitled to $180,000.00 of husband's vested accrued benefits under his Nationwide Retirement Plan2 as of July 27, 2020. The QDRO, however, did not indicate that a transfer of these funds was to occur within thirty days. Further, the Nationwide Retirement Plan specified in the QDRO was a defined-benefit plan,3 meaning a monthly benefit retirement plan subject to taxes and penalties if withdrawn before age fifty-nine and a half, in this case in October

pension

nswer out of time, husband filed his answer and counter-petition in December 2019. As part of the dissolution action, husband filed his statement of marital and non-marital assets and debts, listing property including his Charles Schwab securities account, pension plan, and his "Fidelity 401k." In July 2020, wife and husband reached a settlement and filed a joint affidavit requesting dissolution with an attached marital separation and property settlement agreement, and the case was removed from the trial court's docket. On July 27, 2020, the trial court entered a judgment of dissolution. The judgment of dissolu

401(k)

d his answer and counter-petition in December 2019. As part of the dissolution action, husband filed his statement of marital and non-marital assets and debts, listing property including his Charles Schwab securities account, pension plan, and his "Fidelity 401k." In July 2020, wife and husband reached a settlement and filed a joint affidavit requesting dissolution with an attached marital separation and property settlement agreement, and the case was removed from the trial court's docket. On July 27, 2020, the trial court entered a judgment of dissolution. The judgment of dissolution divided the marital prop

Source and provenance

Source type
courtlistener_qdro_opinion_full_text
Permissions posture
public
Generated status
machine draft public v0
Review status
gold label pending
Jurisdiction metadata
US
Deterministic extraction
reporter: 608 S.W.2d 405
Generated at
May 14, 2026

Related public corpus pages

Deterministic links based on shared title/citation terms and QDRO / retirement / family-law retrieval scores.

Clean opinion text

MISSOURI COURT OF APPEALS
 WESTERN DISTRICT

CHERYLENE R. COMBS, )
 )
 Respondent, ) WD85653
 )
v. ) OPINION FILED:
 )
GARY COMBS, ) November 14, 2023
 )
 Appellant. )
 )

 Appeal from the Circuit Court of Clay County, Missouri
 Honorable Alisha Diane O'Hara, Judge

 Before Division Two: Janet Sutton, Presiding Judge,
 Alok Ahuja, Judge, and Mark D. Pfeiffer, Judge

 Gary Combs (husband) appeals from the amended judgment entered by the Clay County

Circuit Court after granting Cherylene Combs's (wife) Rule 74.06(b) motion to amend or set

aside the judgment of dissolution of marriage. In his sole point on appeal, husband argues that

the trial court abused its discretion in granting wife's motion because wife failed "to identify a

reason to set aside the [j]udgment under Rule 74.06" and failed to meet Rule 74.06's standard for

establishing "any of the acceptable reasons to amend or set aside" the judgment of dissolution.

Finding the trial court abused its discretion, we reverse the trial court's amended judgment.
 Factual and Procedural Background

 Wife and husband married in October 2001. Wife filed a petition for dissolution of

marriage in October 2019, and, after the trial court granted leave to file his answer out of time,

husband filed his answer and counter-petition in December 2019. As part of the dissolution

action, husband filed his statement of marital and non-marital assets and debts, listing property

including his Charles Schwab securities account, pension plan, and his "Fidelity 401k." In July

2020, wife and husband reached a settlement and filed a joint affidavit requesting dissolution

with an attached marital separation and property settlement agreement, and the case was

removed from the trial court's docket.

 On July 27, 2020, the trial court entered a judgment of dissolution. The judgment of

dissolution divided the marital property and awarded husband one of the marital homes with the

greatest value, his pension, and the Fidelity 401(k), among other items.1 To equalize the

property division based upon the distribution of assets, wife was awarded a property equalization

payment. The clause ordering the property equalization payment read as follows:

 To equalize based upon distributions of the assets, [husband] will pay to [wife]
 the sum of $180,000.00, distribution shall be pursuant to qualified transfer to an
 IRA or other qualified plan account in [wife]'s name and at the financial
 institution determined by [wife]. In the event of a Qualified Domestic Relations
 Order is necessary, the [c]ourt shall retain jurisdiction to enter a QDRO to
 accomplish the intent of this provision[.] [Husband] will pay any fees associated
 with the division and transfer of the property equalization[.] This transfer shall
 occur within [thirty] 30 days of the date of dissolution of marriage.

(Emphasis added).

 In September 2020, the trial court entered a Qualified Domestic Relations Order (QDRO)

1
 The judgment of dissolution also included provisions about spousal maintenance, about child
custody of the couple's two minor children, and about child support, as agreed by wife and
husband in the settlement agreement, which are not at issue in this appeal.

 2
 the intent of which was to pay out the equalization payment to wife. The QDRO stated that wife

was entitled to $180,000.00 of husband's vested accrued benefits under his Nationwide

Retirement Plan2 as of July 27, 2020. The QDRO, however, did not indicate that a transfer of

these funds was to occur within thirty days. Further, the Nationwide Retirement Plan specified

in the QDRO was a defined-benefit plan,3 meaning a monthly benefit retirement plan subject to

taxes and penalties if withdrawn before age fifty-nine and a half, in this case in October 2030.

Thus, wife could not receive the $180,000.00 from this account within thirty days as ordered by

the judgment of dissolution.

 In October 2020, after receiving correspondence from Fidelity, wife learned that she

would not receive the $180,000.00 property equalization payment within the thirty days specified

by the original final judgment. Wife filed a motion for contempt and an application for a show-

cause order against husband in January 2021. In her motion for contempt, wife argued that

husband refused to follow the trial court's property equalization order (1) by failing to authorize

the property equalization to be made to wife within thirty days of transfer and (2) by refusing to

"authorize property equalization from an asset to be paid to the financial institution determined

by [wife]." The trial court held a hearing on the contempt motion in February 2021, and denied

wife's motion for contempt the same day without explanation.

 In May 2021, wife filed a motion to amend or set aside the judgment and decree of

2
 Based on the list of marital property determined in settlement and the correspondence between
the parties and the attorney who prepared the original QDRO, we presume this "Nationwide
Retirement Plan" to be husband's "pension" as allocated in the original judgment of dissolution
and listed as marital property during settlement.
3
 A defined-benefit plan is a retirement plan "established and maintained by an employer
primarily to provide systematically for the payment of definitely determinable benefits to
employees over a period of years, usu[ally] for life, after retirement. . . ." Employee-Benefit
Plan, Black's Law Dictionary (11th ed. 2019) (defining "defined-benefit plan").

 3
 dissolution of marriage under Rule 74.06(b),4 and filed an amended motion the next day. Wife

argued that the original judgment of dissolution should be amended or set aside because "the

transfer of liquid retirement assets were an integral component to the settlement agreement of the

parties as it would allow [wife] to obtain permanent housing in exchange for [husband]

maintaining the marital residence." Further, wife stated that "the agreement for a property

equalization payment was the primary inducement for [wife]'s acceptance of the terms of the

agreement" and, "[i]f it had been disclosed by [husband] that he intended only to transfer to her

the equivalent of the distribution amount of $180,000.00 from a defined benefit plan," she would

not have consented to the agreement and would have sought alternate relief.

 Following husband's submission of suggestions in opposition, the trial court set the

matter for hearing in August 2021. During the August hearing, wife presented husband's sworn

testimony about the QDRO and the property equalization payment as support for her motion.

 In November, the trial court then entered an order granting wife's motion to amend the

judgment of dissolution. Specifically, the trial court ordered that the judgment of dissolution be

amended to "change the payment method for the equalization payment in the amount of

$180,000.00 [to] be paid through [husband]'s Nationwide Savings Plan5 in the amount of

4
 Unless otherwise indicated, all statutory references are to the Revised Statutes of Missouri
2016, and all rule references are to the Missouri Supreme Court Rules.
5
 The record lacks any reference to the "Nationwide Savings Plan" prior to its mentioning in the
order granting wife's motion to amend. The "Nationwide Savings Plan" is not mentioned in
husband or wife's statements of marital and non-marital assets, the marital separation and
property settlement agreement, or the Schedule A-1 distribution of property and debts included in
the original judgment of dissolution. Further, wife alleges in her brief to this Court that she had
no prior knowledge of the Nationwide Savings Plan "because the same was not disclosed during
dissolution."

We, however, assume husband's "Nationwide Savings Plan" to be his "Fidelity 401(k)" as listed
in his statement of marital assets, in the Schedule A-1, and divided in the original judgment of

 4
 $109,425.00, [and paid through] [husband]'s Charles Schwab account in the amount of $2,944."

Further, the trial court ordered that husband pay wife any outstanding balance within thirty days

of the order, that husband pay wife's attorney fees per wife's request in the motion to set aside,

and that if husband failed to comply with the order, he could be found in contempt. The trial

court, however, did not enter an amended judgment at that time.

 In February 2022, wife filed a second application for an order to show cause and motion

for judgment of contempt based on husband's failure to follow the trial court's order. In March

2022, wife also filed a motion requesting the court to approve two new QDROs pursuant to the

trial court's order.

 The trial court issued a show cause order, husband filed a response to wife's motion for

contempt, and a hearing was scheduled for March 2022 to address both wife's motion for

contempt and her motion to approve the amended QDROs. During the March hearing, the trial

court determined that it had not yet entered an amended judgment of dissolution, and thus could

not find husband in contempt without the amended judgment having been entered.

 On July 19, 2022, the trial court entered the amended judgment of dissolution of

marriage. The amended judgment of dissolution repeated the original property equalization

clause from the original judgment of dissolution, as provided supra, and included a second, new

and revised property equalization clause. The new property equalization clause added:

 To equalize equities based upon distribution of the assets, [husband] will pay to
 [wife] the sum of $180,000.00, distribution shall be paid through [husband]'s
 Nationwide Savings Plan in the amount of $109,425.00, and [husband]'s Charles
 Schwab account in the amount of $2,944.00. Any outstanding balance shall be
 paid by [husband] withing [sic] 30 [thirty] days of this [o]rder directly to [wife] or
 the sum shall become a [j]udgment against [husband]. If the remaining balance is
 not paid within 30 [thirty] days [husband] could be found in contempt of [c]ourt.

dissolution. Additionally, Fidelity corresponded on behalf of Nationwide when updating the
parties on the status of the original QRDO dividing husband's Nationwide Retirement Plan.

 5
 In the event a Qualified Domestic Relations Order is necessary, the [c]ourt shall
 retain jurisdiction to enter a QDRO to accomplish the intent of this provision.
 [Husband] will pay any fees associated with the division and transfer of the
 property equalization. This transfer shall occur within 30 [thirty] days of the date
 of dissolution of marriage.

The amended judgment purported to award husband his Nationwide Savings Plan in the property

division section, just as in the original judgment, but then ordered a portion of the Nationwide

Savings Plan paid out to wife in the property equalization clause.6 The amended judgment also

failed to divide husband's Charles Schwab securities account in the property division, but instead

ordered the account paid to wife in the amended equalization clause. 7 Thus, this new clause,

instead of ordering a purported lump sum equalization payment, essentially re-divided some

6
 As listed in husband's statement of marital and non-marital assets, husband' 401(k), herein
referred to as his Nationwide Savings Plan, was listed as having a fair market value of
$118,183.00.

In his statement of marital and non-marital assets, husband recorded that he and wife jointly
borrowed $33,376.00 from this account and still owed this amount. Wife, however, did not list
the funds borrowed from Husband's Nationwide Savings Plan as joint debts, nor did she record
the debt whatsoever on her statement of marital and non-marital assets.

Regardless, the actual equity in husband's Nationwide Savings Plan account was listed as
$84,807.00. Neither the original judgment of dissolution nor the amended judgment award
husband a specified amount from his Nationwide Savings Plan, but award husband 100% of this
account. For purposes of this appeal, we simply use the fair market value of $118,183.00 as the
value of the Nationwide Savings Plan, and note that wife was only ordered to be paid a portion
of that amount.
7
 The Charles Schwab securities account was not awarded in the original judgment. Neither
party raises this issue on appeal. We need not dismiss husband's appeal for lack of finality of
judgment. As State ex rel. McClintock v. Black, 608 S.W.2d 405, 406 (Mo. banc 1980) states:

 If the undistributed property is discovered before the time for appeal has run, the
 appellate court, when presented with an appeal raising the issue of undistributed
 property, must dismiss the appeal because the trial court has not exhausted its
 jurisdiction and has not rendered a final judgment from which an appeal can be
 taken. On the other hand, once the time for appeal has run, the order of the trial
 court, although it has failed to divide all of the marital property, is res judicata
 and final as to the property with which it has dealt.

 6
 marital property and divided property previously unawarded in the original judgment.

 Husband appeals.

 Legal Analysis

 In his sole point on appeal, husband argues that the trial court erred in granting wife's

motion to amend or set aside the judgment of dissolution of marriage under Rule 74.06(b).

Husband asserts the trial court erred because wife (1) failed to identify a specific reason to set

aside the judgment under Rule 74.06 and (2) failed to "meet the standard for establishing any of

the enumerated reasons to amend or set aside a [j]udgment under Rule 74.06." We agree that the

trial court abused its discretion.

 Rule 74.06(b) states:

 On motion and upon such terms as are just, the court may relieve a party or his
 legal representative from a final judgment or order for the following reasons: (1)
 mistake, inadvertence, surprise, or excusable neglect; (2) fraud (whether
 heretofore denominated intrinsic or extrinsic), misrepresentation, or other
 misconduct of an adverse party; (3) the judgment is irregular; (4) the judgment is
 void; or (5) the judgment has been satisfied, released, or discharged, or a prior
 judgment upon which it is based has been reversed or otherwise vacated, or it is
 no longer equitable that the judgment remain in force.

"[T]he trial court is afforded broad discretion when acting on a Rule 74.06 motion, and the

appellate court should not interfere unless the record convincingly shows an abuse of discretion."

Cnty. of Boone v. Reynolds, 573 S.W.3d 696, 702–03 (Mo. App. W.D. 2019) (quoting Vang v.

Barney, 480 S.W.3d 473, 475 (Mo. App. W.D. 2016)). "[A]buse of discretion may only be

found where the trial court's decision ‘is clearly against the logic of the circumstances then

before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate

a lack of careful consideration.'" Id. at 703 (quoting Vang, 480 S.W.3d at 475).

 Here, the trial court erred in granting wife's motion to amend because wife failed to

adequately support her Rule 74.06(b) motion with affidavits or sworn testimony. Although wife

 7
 offered husband's hearing testimony in support of her Rule 74.06(b) motion to amend or set

aside, husband's testimony offered no meaningful support for wife's allegations.

 "A [Rule 74.06(b)] motion to set aside a judgment cannot prove itself." Dallas-Johnson

Properties, Inc. v. Hubbard, 823 S.W.2d 5, 6 (Mo. App. E.D. 1991) (citation omitted). "Even if

a motion contains sufficient allegations of fact to support setting aside a judgment, the motion

cannot normally be granted unless it is verified, or supported by affidavits or sworn testimony

produced at a hearing on the motion." Clark v. Clark, 926 S.W.2d 123, 127 (Mo. App. W.D.

1996) (citing Dallas–Johnson Properties, Inc., 823 S.W.2d at 6). "‘[A]llegations in a motion are

not self-proving.'" Wilson v. Wilson, 667 S.W.3d 181, 187 (Mo. App. W.D. 2023) (quoting

Lombardo v. Lombardo, 120 S.W.3d 232, 241 (Mo. App. W.D. 2003)). See also, e.g., Chatman

v. Chatman, 673 S.W.3d 528, 531 (Mo. App. E.D. 2023) (refusing to consider factual allegations

made in wife's motion to set aside a dissolution decree, when those allegations were not

supported by competent evidence).

 Wife's motion to amend the judgment contended that a lump-sum transfer of "liquid

retirement assets" was a central provision of the parties' settlement agreement, because "it would

allow [wife] to obtain permanent housing in exchange for [husband] maintaining the marital

residence." Wife also contended in her motion that the $180,000 equalization payment "was the

primary inducement for [wife]'s acceptance of the terms of the agreement," and that, if she had

known that husband only intended to transfer $180,000 in value from a defined benefit

retirement plan, she would not have agreed to the original dissolution decree's property division.

Although wife's motion to amend the judgment cited Rule 74.06(b) generally, it did not specify

on which particular ground for vacating a judgment her motion relied. From her factual

allegations, it appears that wife may have been contending that she was entitled to relief from the

 8
 original dissolution decree on the basis of mistake, or because of fraud, misrepresentation or

misconduct by husband, or because it was no longer equitable to enforce the original judgment.

 Husband's testimony was the sole evidentiary support for wife's motion to amend the

judgment. In his testimony, husband acknowledged that he had agreed in the settlement

agreement to pay wife the sum of $180,000 as an equalization payment. He testified, however,

that, in his view, he had complied with the agreement through "a distribution from [his]

pension." Husband contended that Nationwide's letter from November 27, 2020, reflected that

husband paid the equalization payment when it stated, "In accordance with the terms of the

Domestic Relations Order[,] Cherylene Combs, ‘Alternate Payee' has been assigned $180,000 of

Gary W Comb's ‘Participant' account balance in the Nationwide Retirement Plan . . . ."

 Husband's testimony did not substantiate wife's allegations that the equalization payment

was intended as a quid pro quo for husband's retention of the marital residence; that the payment

was intended to permit wife to buy a home; that the equalization payment was central to wife's

agreement to the original property division; or that wife would not have agreed to the division

without the equalization payment. Nothing in husband's testimony establishes that the original

dissolution decree was based on mistake, fraud, misrepresentation, or misconduct by husband, or

that the continued enforcement of the original judgment would be inequitable as Rule 74.06(b)

requires.

 The original judgment of dissolution merely provided for husband to "pay to [wife] the

sum of $180,000.00 . . . pursuant to qualified transfer to an IRA or other qualified plan account

in [wife]'s name," without explicitly specifying the source of that payment.8 With only

8
 We also note that the trial court's amended judgment appears to contemplate that husband
would pay approximately $68,000.00 of the equalization payment "directly" to wife—in other
words, not by means of a "qualified transfer" between tax-advantaged retirement accounts. By

 9
 husband's testimony before it, the trial court could not find that wife supported any of her factual

allegations or that the original decree was the product of mistake, fraud, misrepresentation, or

misconduct, or that continued enforcement of the equalization-payment provision would be

inequitable. While the evidence before the trial court suggested that the parties disagreed as to

whether husband had complied with the equalization-payment provision, that evidence did not

support vacating the provision itself. Further, it is unclear to this Court why wife herself did not

provide an affidavit nor testify in support of her own motion at the motion hearing. Accordingly,

because the record before the trial court failed to establish a basis for vacating the property

division in the original dissolution decree under Rule 74.06(b), we are constrained to reverse the

trial court's amended judgment.

 It is significant that wife's complaint, subsequent to November 2020, appears to have

been that husband had failed to comply with the equalization-payment provision contained in the

original dissolution decree—not that the original decree's ordering of an equalization payment

was itself unfair, inequitable, or contrary to the parties' intent. A party's failure to comply with a

judgment may be grounds for enforcement of the judgment's provisions, it does not necessarily

establish a basis for substantive modification of the judgment itself. We note that the trial court

refused to find husband in contempt of the original judgment—a ruling which wife does not

challenge.

 Even if there had been sufficient grounds proven under Rule 74.06(b), the trial court

abused its discretion by improperly amending, rather than vacating, the portion of the judgment

ordering this "direct" payment, presumably from after-tax funds, it appears that the trial court
may have substantially increased the economic value of the equalization payment to wife.
Nothing in the record, however, supports a substantial increase in the value of the equalization
payment, beyond the $180,000.00-by-qualified-transfer ordered in the original dissolution
decree.

 10
 dividing the parties' marital property. The trial court could not amend the original judgment's

property division as a matter of law. While generally a trial court's "power to modify a

judgment ceases when the judgment becomes final," in dissolution proceedings "statutes

authorize courts to modify some issues decided in a final dissolution judgment in response to

changing circumstances." Olofson v. Olofson, 625 S.W.3d 419, 433 (Mo. banc 2021) (citations

omitted). No statute, however, allows for the modification of a division of marital property. Id.

In fact, sections 452.330.59 and 452.360.2.10 specifically prohibit the modification of marital

property divisions. Id.; § 452.330.5; § 452.360.2.

 The general statutory prohibition against modifying a marital property division does not

foreclose all avenues by which a trial court may relieve parties from such division pursuant to

Rule 74.06(b). Olofson, 625 S.W.3d at 433. Parties may nonetheless seek relief from a final

judgment of dissolution under Rule 74.06(b). "The plain language of Rule 74.06(b) authorizes a

[trial] court to vacate a portion of a judgment as relief from the final judgment." Id. at 436

(emphasis added). Thus, for a trial court to provide relief from the division of marital property,

Rule 74.06(b) authorizes the trial court not to amend but to "vacate only the property division of

9
 Section 452.330.5 states:

 The court's order as it affects distribution of marital property shall be a final order
 not subject to modification; provided, however, that orders intended to be
 qualified domestic relations orders affecting pension, profit sharing and stock
 bonus plans pursuant to the U.S. Internal Revenue Code shall be modifiable only
 for the purpose of establishing or maintaining the order as a qualified domestic
 relations order or to revise or conform its terms so as to effectuate the expressed
 intent of the order.

(Emphasis added).
10
 Section 452.360.2 states, "The court's judgment of dissolution of marriage or legal separation
as it affects distribution of marital property shall be a final judgment not subject to
modification." (Emphasis added).

 11
 the dissolution judgment" if justified under one of Rule 74.06(b)'s grounds. Id. at 436–37.

 Rule 74.06 and Olofson v. Olofson clearly dictate that, had the trial court believed the

property division and corresponding equalization payment inequitable, it should have vacated the

portion of the judgment of dissolution dividing the parties' property. See Olofson, 625 S.W.3d at

433, 436–37. Because amending the property division was contrary to both Missouri statute and

Olofson, the trial court abused its discretion.

 Furthermore, the property equalization as amended was not in keeping with the purpose

of property equalization payments. Section 452.330 provides a two-step process that trial courts

follow in dissolution actions. Cohen v. Cohen, 73 S.W.3d 39, 53 (Mo. App. W.D. 2002). The

trial court must first set aside each spouse's non-marital property and then divide the remaining

marital property and debts in such proportion as the trial court deems just. Id. To equitably

distribute marital property, section 452.330 also "grants trial courts the discretion to award an

equalization payment in lieu of the division of actual marital assets . . . and to award an

equalization payment in installments if there are not sufficient liquid assets." Sparks v. Sparks,

417 S.W.3d 269, 290 (Mo. App. W.D. 2013) (internal citations omitted).

 Trial courts may order one spouse in a dissolution action to make a cash payment—a

property equalization payment—to the other "to effectuate a just and fair division of marital

property where it is impossible or imprudent to divide the property in kind." Cohen, 73 S.W.3d

at 54. Thus, trial courts may determine whether to award an equalization payment after the

division of marital assets and debts to ensure a fair and equitable division of property under the

circumstances. Sparks, 417 S.W.3d at 287–91. We note that the trial court's amended property

equalization clause improperly redistributed part of the parties' property that had already been

divided in the property division. Again, an equalization payment is awarded "in lieu of the

 12
 division of actual marital assets." Sparks, 417 S.W.3d at 290 (emphasis added). Our opinion

should not be read as precluding wife from pursuing further action.

 Conclusion

 Finding the trial court abused its discretion, we reverse the trial court's judgment.

 Janet Sutton, Presiding Judge

Alok Ahuja and Mark D. Pfeiffer, Judges, concur.

 13