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Supreme Court divides over asset split in divorce

Scott Lauck//September 11, 2020

Supreme Court divides over asset split in divorce

Scott Lauck//September 11, 2020

The Missouri Supreme Court ruled 4-3 on Sept. 1 that a man imprisoned for sexually abusing a relative still gets to keep a retirement account following the dissolution of his marriage.

The court’s majority declined to order a more favorable redistribution of the marital assets for Christine Ann Lollar in her divorce from Richard Dwain Lollar, who was arrested in 2015 and is serving an 18-year sentence for statutory rape and sodomy.

Following a dissolution trial in St. Louis County Circuit Court, Commissioner Heather Cunningham awarded the wife the largest asset of the marital estate — a vehicle valued at $17,000. The husband, however, was awarded the entire 401(k) account, which was valued at less than $5,000.

The court also assigned $11,000 in marital debt to the wife and $12,800 to the husband. On paper at least, the wife netted $6,000 while the husband was $7,800 in debt. Judge Thea Ann Sherry adopted the judgment.

On appeal, the wife challenged the loss of her ex-husband’s retirement account, particularly in light of his misconduct during the marriage.

The appeal challenged the commissioner’s finding that the wife had “dissipated marital funds” by using the husband’s last paychecks and a tax refund to pay bills and personal property taxes on their cars.

Judge W. Brent Powell, writing for the majority, said the wife had failed to prove the assets had been divided unfairly. Powell added that the husband’s misconduct was only one factor for the family court to weigh in dividing the property.

“Because Wife received a disproportionately advantageous division of the marital estate, Wife was not prejudiced by the circuit court’s finding that she dissipated marital assets, even assuming this finding was in error,” Powell wrote.

Judges Paul C. Wilson and Mary R. Russell concurred. Judge Zel M. Fischer also agreed with the result, though he wrote separately to argue that the appeal should have been dismissed due to briefing deficiencies.

But Judge Patricia Breckenridge, joined by Chief Justice George W. Draper III and Judge Laura Denvir Stith, argued in a dissent that the wife should not have been faulted for paying normal expenses.

“A spouse does not squander marital property, however, by merely expending marital funds after separation and before dissolution. Marital funds used to pay justified or legitimate expenditures are not squandered,” Breckenridge wrote, adding that the judgment had listed the credit cards the wife paid as a marital debt. “In particular, marital funds used to pay marital debts or ordinary living expenses are not considered dissipated.”

The dissent said the majority had taken the effects of that error too lightly. Breckenridge said the alleged dissipation of marital assets clearly had been a major factor in the way the property was split up, as it was referenced eight times in the judgment.

“Because the court’s error — a holding that Wife dissipated marital funds when she paid marital debts — materially affected the circuit court’s property division, Wife is entitled to a reversal of the division of marital property and remand so that a new division of marital property can be made and the circuit court can exercise its discretion free from the incorrect application of law,” Breckenridge wrote.

Cheryl A. Raftert of Legal Services of Eastern Missouri, who represented the wife, couldn’t be reached for comment. The husband, who is incarcerated at the Missouri Eastern Correctional Center in Pacific, didn’t participate in the appeal.

The case is Lollar v. Lollar, SC97984.

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