In the Missouri Court of Appeals
KIMBERLEY ANN RUFFINO,
SALVATORE M. RUFFINO III,
Appeal from the Circuit Court
of St. Louis County
Hon. Thomas J. Prebil
June 11, 2013
Salvatore Ruffino (âHusbandâ) appeals from the dissolution judgment of the trial
court awarding child support and maintenance to Kimberley Ruffino (âWifeâ). Husband
argues the trial court erred in its calculations for the child support award, the maintenance
award, and the distribution of marital assets. On cross-appeal, Wife argues the trial court
erred in its division of Husbandâs retirement accounts. We reverse the judgment of the
trial court to the extent that it fails to provide the findings necessary for Wife to prepare a
Qualified Domestic Relations Order and remand for that purpose.
We affirm the
judgment in all other respects.
A brief summary of the relevant facts follows. Additional facts will be addressed
as needed throughout our analysis.
Husband and Wife married in August 1987. Wife became pregnant in 1988 and
did not work from that time until 1999 so that she could take care of the partiesâ three
children. At the time of the dissolution, Wife worked for 6Star Management Company,
LLC (â6Starâ), a condominium management company owned by Husband and Wife that
manages rental units at Lake of the Ozarks. Three of the condominiums are owned by
Husband and Wife while twenty-seven are owned by third parties. Wife is the sole
employee of 6Star, working sixty-five to seventy hours per week. At the time of the
dissolution, Husband was the vice president of a construction company.
During the marriage, Husband verbally and physically abused Wife, including
hitting her, punching her, pulling her hair, hitting her in the head, and pushing her on
numerous occasions. This abuse has caused Wife to suffer from Post-Traumatic Stress
Syndrome as well as physical harm such as a black eye.
The parties separated in December 2007, and the trial court entered its Judgment
of Dissolution of Marriage in November 2011. This appeal follows.
Our review in a court-tried case is governed by Murphy v. Carron, 536 S.W.2d
30, 32 (Mo. banc 1976). We will affirm the judgment of the trial court unless it is not
supported by substantial evidence, it is against the weight of the evidence, or it
erroneously declares or applies the law. Id. We defer to the trial courtâs determinations
of credibility and view the evidence and inferences that may be drawn therefrom in the
light most favorable to the judgment. Neal v. Neal, 281 S.W.3d 330, 337 (Mo. App. E.D.
For his first point, Husband argues the trial court erred in calculating the award of
child support to Wife, in violation of Rule 88.01, 1 because the trial court did not properly
calculate Wifeâs monthly gross income. We disagree.
When calculating a self-employed parentâs gross income for purposes of Form 14,
the calculations must begin with the parentâs gross receipts minus ordinary and necessary
All rule references are to the Missouri Supreme Court Rules.
expenses. In re Marriage of Harvey, 48 S.W.3d 674, 677 (Mo. App. E.D. 2001). It is
within the discretion of the trial court whether to include depreciation, investment tax
credits, and other non-cash reductions of gross receipts when calculating a parentâs gross
income. See id.
The trial court calculated Wifeâs yearly gross income at $22,928.00 for a monthly
gross income of about $1,911.00, obtaining this number from the testimony of Wifeâs
expert, Thomas Norton. According to Nortonâs testimony, he reached this number by
looking at the average income for 2007, 2008, 2009 and estimated income for 2010 for
all third-party condominiums and the one personally-owned condominium to be awarded
to Wife in the dissolution judgment. After finding the average net income for those years
(shown on Nortonâs worksheet as gross receipts minus business expenses), Norton made
certain adjustments to account for âthings that arenât really cashâ such as depreciation,
loan payments, and adjustments related to the partiesâ IRS audit.
Husband argues 6Starâs revenues in 2010 were $127,324.45 and its ordinary and
necessary expenses were $34,793.24, resulting in a yearly gross income of $95,531.21.
Husband acknowledges, however, that there was conflicting evidence presented during
trial as to 6Starâs expenses. The trial court is free to believe or disbelieve part, all, or
none of the testimony of any witness. In re Marriage of Angell, 328 S.W.3d 753, 756
(Mo. App. S.D. 2010). Here, the trial court found Wife and Norton presented credible
testimony. Nortonâs calculations were based on 6Starâs gross receipts minus expenses, as
required by Rule 88.01 and Form 14. Norton then included non-cash adjustments which
were within the trial courtâs discretion to allow.
These calculations followed the
requirements of Rule 88.01 and Form 14. Therefore, the trial court did not err in
calculating Wifeâs monthly gross income on Form 14. Point denied.
For his second point, Husband argues the trial court erred in its calculation of the
maintenance award to Wife, in violation of Section 452.335. 2 We disagree.
The amount of a maintenance award is governed by Section 452.335.2 which
provides relevant factors for the trial court to consider such as the financial resources of
the parties, the earning capacity of the parties, the standard of living established during
the marriage, and the conduct of the parties during the marriage. Section 452.335.2. A
judgment concerning an award of maintenance is presumed to be correct. Souci v. Souci,
284 S.W.3d 749, 758 (Mo. App. S.D. 2009). In the absence of a finding that the
maintenance amount is patently unwarranted and wholly beyond the means of the spouse
who pays, we will not interfere with the trial courtâs award. Id. The trial court must
exclude from any maintenance award amounts expended for the direct care and support
of a dependent child. In re Marriage of Neu, 167 S.W.3d 791, 796 (Mo. App. E.D.
When calculating and awarding maintenance, the trial court may allow a
reasonable amount above the itemized expenses of the party seeking maintenance to meet
unexpected day-to-day expenses which, given their nature, may be reasonable under the
circumstances, yet are incapable of specific itemization. Childers v. Childers, 26 S.W.3d
851, 856 (Mo. App. W.D. 2000). It is proper for the court to consider Wife's expenses in
light of her net income after taxes. Id. All fact issues upon which no specific findings
are made shall be considered as having been found in accordance with the result reached.
All statutory references are to the Revised Statutes of Missouri (2000).
The trial court relied on Wifeâs Statement of Income and Expenses in reaching its
maintenance award of $3,900.00 per month.
In that Statement, Wife calculates her
monthly expenses to be $7,963.05. The trial court did not specifically state which
expenses from Wifeâs Statement were included in its $3,900.00 award; however, the trial
court did eliminate all expenses for the partiesâ children included in the Statement.
Counting just those expenses that were reasonable and attributable to Wife alone, the trial
court found Wifeâs monthly expenses to be $3,900.00. The trial court then considered
Wifeâs income plus a maintenance award of $3,900.00 per month and confirmed that
both parties would have sufficient resources to meet their reasonable needs with a
$3,900.00 per month award.
The trial court considered the relevant evidence, excluded expenses attributable to
the partiesâ children, and determined a monthly number in accordance with Section
452.335.2. We find Husbandâs arguments regarding the trial courtâs calculations to be
We believe the trial courtâs award, in light of Wifeâs income and
reasonable expenses and Husbandâs verbal and physical abuse of Wife during the
marriage, was without error. Point denied.
For his third and final point, Husband argues the trial court erred in its valuation
and distribution of marital assets, in violation of Section 452.330, which provides factors
for the trial court to follow in the distribution of assets. We disagree.
The trial court is afforded considerable discretion in dividing marital property.
Chambers v. Chambers, 910 S.W.2d 780, 785 (Mo. App. E.D. 1995). The trial court is
free to believe or disbelieve part, all, or none of the testimony of any witness. Angell,
328 S.W.3d at 756. If the trial court determines one party unjustifiably withdrew marital
funds, the trial court may reduce that partyâs award of marital assets commensurately.
Neal, 281 S.W.3d at 342.
Viewing the facts in the light most favorable to the judgment, Husband owned the
property at 1074 Bridleridge Crossing Spur at the time of the dissolution. Husband also
owned thirteen Personal Seat Licenses for Rams Football games. He was unable to
account for money he received as proceeds for the sale of Rams tickets in 2010. Husband
also purchased $35,985.00 worth of personal property without Wifeâs consent following
the partiesâ separation.
On appeal, Husband attempts to re-try the facts. However, we leave the factual
determination to the trial court, which also determines the credibility of witnesses. The
trial court found Husbandâs testimony regarding the ownership of 1074 Bridleridge
Crossing Spur and the Rams tickets was not credible. This trial court did not abuse its
discretion in making this finding.
With regard to the $35,985.00 in personal property, the court determined the
personal property in question was in Husbandâs possession at the time of the dissolution,
therefore that personal property would be awarded to Husband. This personal property
was not valued by Wifeâs appraisal witness, Marilyn Monson, but was instead merely
listed in a separate exhibit and awarded to Husband. While Exhibit 4 lists property to be
divided from the marital home and awards some property to each spouse, everything in
Exhibit 5 is awarded to Husband. Nothing in the trial courtâs judgment suggests the
division of other marital property would be affected by the valuation of the personal
property already in Husbandâs possession at the time of the dissolution. The trial court
has broad discretion to make determinations of property division, and we do not find any
error in this ruling.
Therefore, the trial court did not err in its valuation and distribution of marital
assets. Point denied.
In Wifeâs sole point on cross-appeal, she argues the trial court erred in its order
concerning the division of Husbandâs retirement accounts because the judgment did not
specify from which retirement accounts Wife would be entitled to $350,000 and because
it failed to specify whether Wife would be entitled to appreciation or losses after the date
of the judgment. We agree.
A Qualified Domestic Relations Order (âQDROâ) may be obtained after and
pursuant to a final judgment of dissolution and it assures that a spouse will receive
retirement benefits as an alternate payee. In re Marriage of Green, 341 S.W.3d 169, 174
(Mo. App. E.D. 2011). A QDRO must clearly specify certain facts, including the amount
or percentage to be paid to the alternate payee. I.R.C. Section 414(p)(2)(B).
While the trial court provided an amount to be awarded to Wife from Husbandâs
retirement accounts ($350,000), Husband has three separate retirement accounts. The
trial courtâs judgment does not specify whether Wifeâs award should be paid out of one
account, split evenly between the three, or divided otherwise. The parties agree that the
trial court should have the opportunity to clarify its $350,000 award to Wife. On remand,
the trial court should decide the amounts Wife should receive from each of Husbandâs
three retirement accounts and clarify whether this award includes appreciation, income,
or losses accrued on each account. Point granted.
The judgment of the trial court is affirmed in part, reversed in part, and the case is
remanded for further clarification with regard to the division of Husbandâs retirement
ROBERT G. DOWD, JR., Presiding Judge
Roy L. Richter, J. and
Angela T. Quigless, J., concur.