CourtListener opinion 2673609

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Clean opinion text

Sn the Missouri Court of Appeals
Castern District

DIVISION FOUR
TRUDY A. ZAHN, } ED99950 & ED99951
)
Appellant/Cross-Respondent, } Appeal from the Circuit Court
) of St. Louis County
V. } 10SL-DRO7839
)
CHARLES W. ZAHN, } Honorable Joseph L. Walsh ITI
)
Respondent/Cross-Appellant. ) Filed: February 18, 2014

Introduction

Trudy A. Zahn (Wife) appeals the trial court's grant of summary judgment in
favor of Charles W. Zahn (Husband) in her suit for division of undisclosed assets
following their dissolution of marriage. Wife contends the trial court erred in granting
summary judgment, because there remained disputed issues of material fact and the court
misapplied the law. She further contends the trial court erred in awarding Husband
attorney fees. Husband cross-appeals, arguing the trial court erred in denying his motion
to reimburse maintenance payments made to Wife. We affirm in part and reverse and
remand in part.

Background and Procedure

Husband and Wife were married in 1978. Two children were born of the

marriage but were emancipated by the time of the dissolution. Wife filed a Petition for

 Dissolution of Marriage in 2010. The parties reached a settlement (settlement agreement)
in their dissolution in December of 2011, which provided that Husband would pay
maintenance to Wife in the amount of $1,850 per month. Husband's maintenance
obligation would terminate upon Husband's retirement from Ameren, at which point
Husband and Wife would each receive a portion of Husband's pension benefits. The
settlement agreement further provided that "[a]ny pension payments made to [Wife]
within 30 days of the iast maintenance payment shall be reimbursed to [Husband] on a
prorated basis of $61.67 per day."

The settlement agreement stated that the parties "warrant[ed] that they ha[d] each
disclosed to the other the full extent of their respective properties and income" and that
"in the negotiations and finalization of this agreement and acts and transactions referred
to herein, each has made an independent investigation concerning the nature, extent and

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value of the real and personal property of the parties." Husband signed the settlement
agreement on December 8, 2011, and Wife signed it on December 15. In addition,
Husband and Wife each signed an affidavit for judgment on December 27 and December
15, respectively, attesting the information contained in the attached judgment was true
and accurate. The trial court entered judgment pursuant to the settlement agreement on
December 29, 2011.

Husband retired on January 1, 2012. He filed a motion for the trial court to
approve a Qualified Domestic Relations Order (QDRO) assigning Wife 40.14 percent of
Husband's pension, After a hearing on April 17, 2012, the trial court issued an order,

apparently based on an oral motion made at the hearing, ordering that the difference

between what Wife received in maintenance and what she would be receiving from

 Ameren in pension payments be calculated, possibly resulting in a reimbursement to
Husband. Wife moved to set aside the order, arguing, infer alia, she had received no
notice of Husband's oral motion and the order conflicted with the language of the
settlement agreement. The trial court granted her motion but was silent regarding the
basis for its decision. As well, the court approved Husband's ODRO,

Wife filed a motion to divide undisclosed assets, asserting Husband failed to
disclose a severance package (severance) valued at $73,153.08 that he knew he would
receive from Ameren for his voluntary early retirement, She argued the severance
constituted compensation for past services and thus was marital property subject to
division by the trial court. Wife filed a motion for summary judgment, which the court
denied. Husband then filed a motion for summary judgment, asserting the offer to sever
employment was, first, revocable by Ameren until Husband actually retired on January 1,
2012, and thus merely an expectancy and not divisible; and, second, was compensation
for future lost earnings and thus his separate property. The trial court granted summary
judgment to Husband. Pursuant to the terms of the settlement agreement, the court
granted Husband attorney fees in the amount of $6,278.54.

As well, Husband filed a motion to determine amounts due, asserting that under
the terms of the settlement agreement, Wife could receive either maintenance from
Husband or pension payments under the QDRO, Husband paid Wife $1,850 per month
from January through October of 2012, during which time she was entitled to receive—-
but was not yet receiving—pension payments, On November 1, 2012, she received a
lump-sum check for the January-November pension payments. Husband argued he was

entitled to reimbursement of the maintenance payments he had paid Wife, namely,

 $18,500. Wife responded that under the terms of the settlement agreement, Husband
could only be reimbursed for any pension payments made within 30 days of the last
maintenance payment. The trial court denied Husband's motion. This appeal follows.

Standard of Review

Summary judgment is appropriate where the moving party demonstrates a right to
judgment as a matter of law based on facts about which there is no genuine issue of

material fact. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 8.W.2d

371, 376 (Mo. banc 1993). The movant has the burden to establish both a legal right to
judgment and the absence of any genuine issue of material fact supporting that claimed
tight to judgment. Id. at 378. A defending party may establish a right to summary
judgment as a matter of law by showing: (1) facts that negate any one of the elements of —
claimant's cause of action; (2) the claimant, after an adequate discovery period, has not
and will not be able to produce evidence sufficient to allow the trier of fact to prove the
elements of its claims; and (3) there is no genuine dispute as to the existence of each of

the facts necessary to support the movant's affirmative defense. Meramec Valley R-II

Sch. Dist. v, City of Eureka, 281 8.W.3d 827, 835 (Mo. App. E.D. 2009).

Our review is essentially de nove. Cardinal Partners, L.L.C. v. Desco Inv. Co.,

301 S.W.3d 104, 108 (Mo. App. E.D. 2010). When considering an appeal from summary
judgment, we review the record in a light most favorable to the party against whom
judgment was entered, and we afford the non-movant the benefit of all reasonable
inferences from the record. Id. at 108-09. In opposing summary judgment, the non-

moving party may not rely on mere allegations and denials, but must use affidavits,

 depositions, answers to interrogatories, or admissions on file to demonstrate the existence

of a genuine issue for trial. Meramec Valley R-II Sch. Dist., 281] S.W.3d at 835.

Discussion

In her three points on appeal, Wife argues the trial court erred in, first, granting
summary judgment to Husband, because a genuine issue of material fact existed as to
whether his severance from Ameren vested before the dissolution of marriage was final
and thus he had a duty to disclose it; second, finding that the severance replaced future
wages rather than past wages; and, third, granting Husband attorney fees and costs,
because summary judgment was inappropriate. Because the second point is dispositive,
we begin our analysis there.

Point II

In her second point on appeal, Wife argues the trial court erred in granting
summary judgment to Husband, because it misapplied the law when it found Husband's
severance from Ameren replaced future wages. She contends instead, that if the right to
the severance is established during the marriage and the party's termination occurs during
the marriage, then the severance may in fact be marital property. Wife's argument fails.

To determine whether severance pay should be classified as marital or non-

marital property, Missouri uses a replacement analysis, which looks at what the

challenged benefit is meant to replace. Schubert v. Schubert, 366 5.W.3d 55, 70 (Mo.
App. E.D. 2012). "(T]he touchstone of the classification is whether severance pay was
intended to compensate the employee for efforts made during the marriage or to replace
post-separation earnings." Id, at 70-71 (quoting Brill v. Brill, 65 S.W.3d 583, 586 (Mo.

App. 8.D. 2002) (citation omitted)), If the payment was intended to substitute for lost

 future earnings, or earnings that would occur post-dissolution, then the payment is non-
marital property. Id. at 71.

Here, the record supports a finding that the severance was intended to replace
future wages. Ameren's Voluntary Separation offer stated that Ameren was "tightening
its belt," and in a "proactive measure to ... reduce costs" was offering its employees over
the age of 58 a lump-sum payment, depending on years of service, to take early
retirement. Ameren's normal employee retirement date was the first day of the month
following the employee's 65th birthday. Under the severance plan, employees would
receive the lump-sum payment after their last day of employment, and the lump-sum
would not count as earnings for pension purposes. Employees were granted a seven-day
period in which to revoke the agreement after submitting it, and Ameren reserved the
right to amend, suspend or terminate its severance plan at any time without notice up
until the employee retired.

The replacement analysis is inherently decided on a case-by-case basis, depending
on the facts of the case. See ¢.g. Brill, 65 S.W.3d at 586. Looking at the language of
Ameren's severance offer, it is clear that the severance here was intended to replace
future wages, not past wages earned during the marriage. In exchange for retiring early
and losing any benefits that would have accrued until he turned 65, Husband received a
lump-sum payment. The stated intent of Ameren's severance offer was to save the
company money in the future by reducing the benefits paid to employees. Although the
value of the severance was calculated according to the number of years Husband had
worked at Ameren, his severance was not compensating him for past services he had

performed at Ameren during the time of his marriage. Moreover, Husband did not in fact
 retive or receive the severance until after the dissolution, and Ameren reserved the right to
cancel the severance offer up until the date of Husband's retirement date.

Thus, the severance Husband received was not marital property and was not
divisible. Id, at 587 (severance pay replacing lost earnings in future is nonmarital). The
trial court did not err in granting summary judgment to Husband.

Point two on appeal is denied.

Wife's Remaining Points

Because we have determined the severance payment was Husband's separate
property and not divisible, Wife's argument raised in Point I that Husband had a duty to
disclose Ameren's vested severance offer, even if true, does not create a basis for
reversal and we will not address it. Likewise, Wife's argument in Point III that trial court
erred in awarding Husband attorney fees fails. Wife agrees that the settlement agreement
provided for attorney fees for the prevailing party in the event that any of the provisions
in the settlement agreement became the subject of enforcement proceedings. Husband
was the prevailing party and thus entitled to attorney fees under the terms of the
settlement agreement.

Points one and three on appeal are denied.

Husband's Cross-Appeal

In his sole point on his cross-appeal, Husband argues the trial court erred in
denying his motion to determine amounts due under the settlement agreement. He

contends the settlement agreement provided for either maintenance payments or pension

' Because the trial court either divides marital property based in part on the value of the nonmarital property
set apatt to each spouse, Section 452.330.1(3), or determines the conscionability of a separation agreement
based on the economic circumstances of the parties, Section 452.325.2, the parties have a duty to disclose
their separate property. Pursuant to this duty, Husband here should have updated his statement of property
to include the known nonmarital severance from Ameren.

 payments, and by failing to credit the excess maintenance paid by Husband, the court
failed to enforce the plain language of the settlement agreement. We agree,

We review de novo a trial court's interpretation of a settlement agreement,
enforcing the plain language of the agreement. In re Marriage of Busch, 310 S.W.3d 253,

261 (Mo. App. E.D. 2010); see also Leathers v Metalcraft Mfg. & Sales Corp., 240

S.W.3d 211, 213 (1951). Under Missouri law, we apply the general rules of contract

construction when interpreting settlement agreements, In re Marriage of Lueken, 267

S.W.3d 800, 803 (Mo. App. E.D. 2008). It is a question of law whether the contract is
ambiguous. Id. To determine whether a contract is ambiguous, we consider the
document in its entirety, looking at the natural and ordinary meaning of the language
used, The test is whether the disputed language, in the context of the entire agreement, is
reasonably susceptible to more than one construction. Id. The intent of the parties is
crucial to construing the settlement agreement. Id, "We first examine the plain language
of the agreement to determine whether it clearly addresses the issue at hand." Withers v.

City of Lake St. Louis, 318 S.W.3d 256, 261 (Mo. App. E.D. 2010).

Here, the settlement agreement provided that Husband shall pay Wife $1,850 per
month in non-modifiable maintenance on the 19\ of each month