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Conrad v. Conrad6/4/2002
App. 1994). The division of property is presumed to be correct, and the party challenging the division bears the burden of overcoming the presumption. Id. "The trial court has broad discretion in the division of marital property and will only be disturbed on appeal if the distribution of marital property is so 'heavily and unduly weighted in favor of one party as to amount to an abuse of discretion.'" Gendron v. Gendron, 996 S.W.2d 668, 670 (Mo. App. 1999) (citation omitted).
As Wife contends, as a general rule, the appropriate date for valuing marital property in a dissolution proceeding is the date of trial. Wright v. Wright, 1 S.W.3d 52, 62 (Mo. App. 1999). Thus, under this rule, if a marital asset does not exist at the time of trial, the trial court cannot value and include that asset in its division of marital property. Id. In that regard, Wife claims on appeal, as she did at trial, that the sexual harassment settlement proceeds she admittedly received after attorney's fees and expenses, in the amount of $42,900, did not exist at the time of trial such that it was error for the trial court to include them in its division of marital property. In claiming as she does, wife does admit, however, that there is an exception to the general rule that the trial court cannot value and divide marital assets that apparently no longer exist, which exception provides that where a spouse is found to be secreting or to have squandered marital assets in anticipation of the marriage being dissolved, the court may hold that spouse liable for the value of those assets. Schneider v. Schneider, 824 S.W.2d 942, 947 (Mo. App. 1992). Wife, however, contends that there is no evidence that she was secreting or had squandered the sexual harassment settlement proceeds and that the record would only support the conclusion that she used the "proceeds for payment of debt and living expenses" during her separation from Husband, such that it was error for the trial court to include the proceeds in its division of marital property. As Wife contends, if, in fact, she expended the settlement proceeds on her legitimate and reasonable needs during her separation from Husband prior to the dissolution proceeding, the trial court erred in holding her liable for them by awarding them to her as part of her 50% share of the marital estate. Such expenditures have been held to be legitimate expenditures of marital assets, as would be the case if the parties had not separated. Finnical v. Finnical, 992 S.W.2d 337, 343 (Mo. App. 1999). Thus, as Wife further contends, the trial court could only have charged her with the proceeds if the record would support the fact that she was secreting or had squandered the settlement proceeds. Id.
In reviewing the cases dealing with the secreting and squandering of marital assets, it appears that there is a conflict between what our appellate courts have expressly stated as to which party has the burden of proof on those issues and the actual standard that is applied in deciding those issues on appeal. In that regard, although professing that the burden of proof is on the spouse claiming that a marital asset is being secreted or had been squandered, our reading of the cases reveals that our appellate courts have in some respects shifted the burden to the other spouse to account for what had happened to the claimed "missing" asset. See Schneider, 824 S.W.2d at 947; Hogrebe v. Hogrebe, 727 S.W.2d 193, 197 (Mo. App. 1987); Bland v. Bland, 652 S.W.2d 690, 692 (Mo. App. 1983). As to what has spawned this apparent conflict as to the burden of proof with respect to the secreting and squandering of marital assets, it would appear that our appellate courts have implicitly recognized the logic of shifting the burden o
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