GANEV v. GANEV (2026)

Introduction

Ivan Ganev (Husband) appeals from the trial court's January 17, 2025 denial of his motion to amend the first amended judgment, motion to vacate, reopen, correct, amend, or modify the first amended judgment, and motion for new trial. We affirm.

Background

Husband and Dondee D. Ganev (Wife) were married over twenty years when Husband filed his petition for dissolution on June 2, 2021.¹ Wife filed her First Amended Counter Petition for Dissolution on July 1, 2021. Shortly thereafter, the first trial judge in this case entered a temporary judgment pending dissolution (PDL) on July 20, 2021, in which, inter alia, Wife was ordered to provide an accounting of approximately $36,000 in an Edward Jones Roth IRA titled in her name by July 31, 2021. The court modified its PDL on August 29, 2022, and allowed Wife to sell a marital car to pay attorney fees and expenses. Wife – who did not comply with the first PDL order to provide an accounting of her IRA – was again ordered to file a detailed accounting. The second PDL order stated her accounting would be considered in the final disposition of marital property in the dissolution.

A multi-day trial took place on October 31, 2023; November 1, 2023; January 12, 2024; April 3, 2024, and April 5, 2024, before a second trial judge. Relevant to this appeal, evidence was adduced the parties moved five times to accommodate Husband's lucrative career. Wife obtained a real estate license but primarily stayed at home until the children became school age when she began working as a teacher.

The court entered judgment on April 23, 2024, and later amended it on September 5, 2024. The amended judgment set aside separate property; divided marital property (to include the family home) and debts; ordered Husband to pay Wife monthly maintenance of $4,322, and awarded Wife a portion of her attorney fees.

Discussion

Husband asserts trial court error in entering judgment without complete findings of fact and conclusions of law as he requested; failing to take judicial notice of its own PDL record; valuing the marital residence at $965,033; and in calculating his maintenance obligation.

Point One –Findings of Fact and Conclusions of Law

In his first point, Husband alleges the trial court erred in entering its judgment without including findings of fact and conclusions of law as he requested because Rule 73.01(c)² mandates a court to include findings on controverted material fact issues specified by a party if timely requested. Husband argues that without such findings, this court cannot conduct a meaningful appellate review.

Standard of Review

When reviewing a decision from a court-tried case, we affirm the judgment of the trial court unless one of the following circumstances exist: (1) no substantial evidence supports the judgment; (2) the judgment is against the weight of the evidence; (3) the judgment erroneously declares the law; or (4) the judgment erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).³

Analysis

On November 30, 2022, Husband filed his request for findings and conclusions pursuant to Rule 73.01(c), requesting a statement of the grounds for the court's decision concerning child custody and visitation, property division, maintenance, attorney fees and costs. Additionally, he requested findings concerning controverted material fact issues which included many specific questions about these issues. The same day Wife filed her own request seeking answers to fifty-four separate questions.

Rule 73.01(c) provides the court “shall render the judgment it thinks proper under the law and the evidence. If a party so requests, the court shall dictate to the court reporter or prepare and file a brief opinion containing a statement of the grounds for its decision and the method of deciding any damage awarded.” Further, “[t]he court may, or if requested by a party shall, include in the opinion findings on the controverted material fact issues specified by the party. Any request for an opinion or findings of fact shall be made on the record before the introduction of evidence at trial or at such later time as the court may allow.” Rule 73.01(c). Finally, the rule adds, “[a]ll fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.” Id.

These provisions are “mandatory where a party properly requests findings of specific fact issues.” Valentine v. Valentine, 400 S.W.3d 14, 20 (Mo. App. E.D. 2013) (citing Lattier v. Lattier, 857 S.W.2d 548, 549 (Mo. App. E.D. 1993)). However, a court's failure to make such findings “mandates reversal only when the trial court's failure to issue requested findings materially interferes with appellate review.” Id. If the record supports the judgment or if the court makes findings that substantially comply with a party's requests, the appellate court will affirm. Id. (citing Cohen v. Cohen, 178 S.W.3d 656, 662 (Mo. App. W.D. 2005)).

In Plager v. Plager, the judgment was “not exemplary,” but was sufficient for appellate review to find any Rule 73.01 errors were not grounds for reversal. 426 S.W.3d 689, 693 (Mo. App. E.D. 2014). Here, the judgment is indeed “exemplary” and demonstrates careful consideration of the facts and law. Without relying on proposed judgments from the parties, the judge wrote his own findings and conclusions addressing the controverted issues of child custody, division of property and debts, maintenance, child support, attorney fees to include those of the guardian ad litem and court costs. The judgment more than substantially complies with Rule 73.01(c) and certainly addresses the material issues. Such a thorough and thoughtful judgment actually drafted by the trial judge supports rather than interferes with appellate review. As a result, the trial court did not misapply Rule 73.01(c) in entering its judgment. Point one is denied.

Point Two – Judicial Notice of Record

In his second point, Husband alleges the trial court erred in failing to take judicial notice of its record in the present proceeding because it is well-established a court can take judicial notice of its entire record in the proceeding before it. Husband claims the court's failure to do so resulted in prejudice because he was denied relief previously awarded to him in the same proceeding.

Preservation and Standard of Review

During trial in October 2023, Husband referenced Wife's testimony in a PDL custody hearing on January 22, 2023, when the case was assigned to a different judge. In the context of the custody issues at trial, Husband requested the court take judicial notice of the transcript relating to custody in the PDL record. The court denied the request and informed Husband he could instead use the transcript for impeachment purposes.

On appeal, Husband does not challenge this specific ruling but asserts prejudice regarding Wife's failure to comply with both PDL orders to provide an accounting. However, Husband never sought to introduce the transcript into evidence on this issue. If he had properly raised this argument at trial, the court may have ruled in his favor – or not – and we would have a record for appellate review. Husband's attempt to extrapolate the court's ruling regarding custody to Wife's PDL accounting preserves nothing. Husband “is bound by the arguments made and the issues raised at trial and may not raise new and totally different arguments on appeal.” State v. Winfield, 5 S.W.3d 505, 515 (Mo. banc 1999) (citing State v. Ward, 782 S.W.2d 725, 731 (Mo. App. E.D. 1989)). The appellant “must stick with the theory of their trial court objection, and may not present here some different reason that testimony should have been excluded” [or admitted]. Brock v. Shaikh, 689 S.W.3d 792, 795 (Mo. App. E.D. 2024) (internal quotation omitted).

Even if there was some properly preserved error for the court to refuse to take judicial notice of its own record, our review is not the de novo standard Husband argues. “We review a claim that the trial court erred by refusing to take judicial notice of an issue under the abuse of discretion standard.” State v. Martin, 388 S.W.3d 528, 535 (Mo. App. S.D. 2012) (internal citation omitted). Likewise, a trial court's decision to admit or decline admission of evidence is reviewed for an abuse of discretion. Tierney v. Tierney, 708 S.W.3d 530, 538 (Mo. App. E.D. 2025). A trial court abuses its discretion only when the court's ruling “is clearly against the logic of the circumstances and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful, deliberate consideration.” Id. (quoting Williams v. Mercy Clinic Springfield Communities, 568 S.W.3d 396, 416-17 (Mo. banc 2019)).

Analysis

Husband admits he is unable to find any controlling or persuasive authority to require a court to take judicial notice of any record. He merely offers it would be “illogical and artificial to conclude that a reassignment of judge changes the character of the proceeding being a singular proceeding before a singular court.” We disagree.

“[T]he doctrine of judicial notice is not a hard and fast one, but is modified by a judicial discretion which leaves it generally to the court to determine for itself whether it shall exercise the power in a given instance, depending primarily upon the nature of the subject, the issues involved, and the apparent justice of the case.” Carr v. Grimes, 852 S.W.2d 345, 351 (Mo. App. S.D. 1993) (quoting Buhrkuhl v. F.T. O'Dell Const. Co., 95 S.W.2d 843, 846 (Mo. App. 1936)).

Important to the concept of judicial notice, a PDL order and a decree of dissolution are independent orders. In re Marriage of Kovach, 873 S.W.2d 604, 607 (Mo. App. E.D. 1993). A PDL order is temporary in nature and stands on its own merits. It is not binding precedent on the final decree of dissolution. Id. It is solely within the sound discretion of the trial court whether to take judicial notice of the PDL records, including trial transcripts. See Baldwin v. Baldwin, 926 S.W.2d 912, 914 (Mo. App. E.D. 1996) (“court may take judicial notice of the record (including the trial transcript) of the dissolution action” on remand for an evidentiary hearing on a PDL motion) (emphasis added). The law makes no requirement otherwise in the event the court declines to do so as it did regarding the custody issues in this matter.

In fact, we find the trial court's judgment did not prejudice Husband because in paragraph 103 of the well-drafted judgment, the court elected not to award retroactive maintenance to Wife because she “was able to support herself by using marital assets and her income during the pendency of the case,” which unequivocally shows the court considered the PDL marital assets awarded to her. Husband has not demonstrated the court's decision to exclude the PDL record was an abuse of the court's discretion and prejudiced him. Point two is denied.

Point Three – Value of Marital Residence

In his third point, Husband alleges the trial court erred in valuing the marital residence at $965,033 because the court's division of marital property was not just and equitable and its valuation of property was not supported by evidence from the parties or experts. He claims the court rejected the parties’ opinions as to fair market value and their appraisals and, instead, relied on a speculative, internet-generated estimate provided by Wife, resulting in an inflated home equity value unsupported by evidence being awarded to Husband.

Standard of Review

A trial court's valuation of marital property will be affirmed unless it is unsupported by substantial evidence, it is against the weight of the evidence, or misapplies the law. In re Marriage of Eakens, 647 S.W.3d 324, 331 (Mo. App. S.D. 2022) (internal quotation omitted). When reviewing whether the trial court's judgment is supported by substantial evidence, we view the evidence in the light most favorable to the judgment and defer to the trial court's credibility determinations. Id.

Analysis

“When the trial court's valuation of property is within the range of conflicting evidence of value offered at trial, the court acts within its discretion to resolve conflicts in evidence.” Janet v. Janet, 638 S.W.3d 570, 581 (Mo. App. W.D. 2021) (internal quotation omitted). The trial court is entitled to believe or disbelieve the testimony of either party concerning the valuation of marital property. Tarneja v. Tarneja, 164 S.W.3d 555, 559 (Mo. App. S.D. 2005).

In the amended judgment, the court found “where needed, the court reviewed the valuation of the assets and debts and adjusted those as dictated by the credible evidence” The parties disagreed as to the value of the house but agreed it should be awarded to Husband. Wife testified the value was $965,033 while Husband valued it at $870,000 based on an appraisal. The court found Wife's valuation was credible and rejected Husband's because it was too low.

Husband's own evidence included his June 2021 Statement of Property, which valued the marital residence at $975,000 – or almost $10,000 more than the court's value – but his First Amended Statement of Property, dated shortly before trial on October 23, 2023, reduced the value to $870,000. Husband blamed the discrepancy on a lack of appraisals and claimed the value was to the best of his ability and knowledge in June 2021.

Wife's Third Amended Statement of Property dated October 24, 2023, listed the marital property's value at $965,033. Her evidence showed this was the average of a Zillow value of $1,080,100 and two appraisals of $915,000 and $900,000. In fact, her first June 2021 Statement of Property reflected the same value of $975,000 as Husband.

The court is free to accept or reject all, part, or none of the testimony of a witness, and therefore it had the discretion to accept Wife's testimony and evidence here concerning the value of the marital property. Dickerson v. Dickerson, 580 S.W.3d 98, 109 (Mo. App. E.D. 2019). We defer to the trial court on factual findings and credibility determinations. Id. Husband's argument the trial court valuation of the marital property is unjust and unsupported by the evidence fails because the court made credibility findings and the court's valuation of the marital residence at $965,033 was supported by credible evidence.

Indeed, it is difficult to countenance Husband's complaint on appeal when he was awarded a home specifically valued at $965,033 while Wife was imputed a home valued at $600,000. Husband has not met his burden of overcoming the presumption the division of property is correct, nor is there any evidence in the record the trial court abused its discretion in doing so. We find the trial court did not err and deny Husband's third point.

Points Four, Five, and Six – Maintenance

Husband alleges error in awarding $4,322 per month in maintenance to Wife because the court failed to impute investment income to Wife and erroneously determined the standard of living to which Wife was entitled as the parties accumulated marital property by maintaining a standard of living significantly below their means during the marriage. He claims the trial court further erred in finding he “greatly over withheld federal income tax” in the amount of $8,563 per month. Relevant to these three points, Husband does not dispute the court's calculation of his gross income in the amount of $29,617 per month or his other state and federal taxes in the amount of $2,594, nor does he contest the court's finding his reasonable monthly expenses of $12,415.

Standard of Review

The trial court is vested with broad discretion in awarding maintenance. Dickerson, 580 S.W.3d at 103. We reverse only upon finding an abuse of discretion. Id. Such awards shall not be disturbed unless the evidence is “palpably insufficient” to support them, and an appellate court will not substitute its judgment for that of the trial court. Steffens v. Steffens, 773 S.W.2d 875, 876 (Mo. App. E.D. 1989) (quoting Hogrebe v. Hogrebe, 727 S.W.2d 193, 195 (Mo.App.1987)). The appellate court will interfere with the trial court's determination only if it is “so unduly weighted in favor of one party that it constitutes an abuse of discretion.” Thomas v. Thomas, 76 S.W.3d 295, 300 (Mo. App. W.D. 2002) (citing Wright v. Wright, 1 S.W.3d 52, 57-60 (Mo. App. W.D. 1999)). The party contesting the maintenance award bears the burden of proving it is so arbitrary it shocks the appellate court's sense of justice and indicates a lack of careful consideration. Thomas, 76 S.W.3d at 300; Dickerson, 580 S.W.3d at 103.

Analysis

Maintenance is intended to close the gap between the income of the spouse who seeks maintenance and the spouse's monthly expenses. Sulkin v. Sulkin, 552 S.W.3d 793, 796 (Mo. App. E.D. 2018). Awards must be “limited to the demonstrable needs of the party receiving support” and are not intended “to provide an accumulation of capital.” Heins v. Heins, 783 S.W.2d 481, 483 (Mo. App. W.D. 1990).

Section 452.335 RSMo (2016)⁴ governs maintenance awards in dissolution proceedings. In determining whether a spouse is entitled to maintenance, the statute provides, in pertinent part, that it may be granted only if the court finds a two-part test is met: 1) the spouse seeking maintenance lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs, and 2) is unable to support herself through appropriate employment. Section 452.335.1. Thus, the court must first determine the reasonable needs of the spouse seeking maintenance, and then determine whether that spouse is able to provide for those needs through the use of property or appropriate employment. Buchholz v. Buchholz, 166 S.W.3d 146, 157 (Mo. App. S.D. 2005) (citing McIntosh v. McIntosh, 41 S.W.3d 60, 67-68 (Mo. App. W.D. 2001). Once the threshold of need is met, the trial court must consider all relevant factors set forth in Section 452.335.2(1-10) to set the amount and duration of the maintenance award. Thomas v. Thomas, 76 S.W.3d 295, 301-02 (Mo. App. W.D. 2002).

For purposes of maintenance, “[t]he trial court determines the amount of income – if any – imputed from these [retirement and IRA] accounts based on the facts and circumstances of each case – including the cost to convert the account into cash, the age of the parties, their intent as to investment/consumption/retirement, the relative division of marital property and marital debts, and any equitable adjustment for reasonably certain taxes and penalties.” Hill v. Hill, 53 S.W.3d 114, 116 (Mo. banc 2001).

Here, the court analyzed the factors set forth in Section 452.335 and found Wife lacked sufficient property to provide for her reasonable needs. This finding was made after the court reduced Wife's claimed reasonable expenses by forty-four percent from $13,689 per month to $7,676 per month, which the court found “reasonable in light of the sums the parties spent during the marriage.” However, the court also found Wife's monthly after-tax income was only $3,354. Wife was clearly unable to meet more than half of her reasonable needs.

The court considered and intentionally excluded Wife's IRA as a source of income. Instead, the court allocated her cash asset of $420,000 towards a down payment to allow Wife to buy a smaller house than the marital home but with similar features and in her children's school district so she could continue a minimally similar standard of living she had during the marriage. This is not an abuse of the court's discretion. We find Husband's argument disingenuous that Wife should not be allowed to enjoy even this reduced standard of living with regard to her housing and reasonable expenses, especially when compared to his, which is nearly $5,000 per month higher than hers.

Husband next argues in a conclusory fashion the court overstated his disposable income and ability to pay maintenance by “skewing” the Section 452.335 analysis without explaining why.⁵ But in reducing Husband's federal withholding by $2,928 per month, the court's amount more accurately reflects his net income maintenance calculation, rather than allowing him to continue to reduce his monthly income by withholding higher taxes and then receiving a sizeable refund. The court was well within its discretion to do this based on the evidence.

In evaluating Husband's income, the trial court was free to believe all, some, or none of his testimony regarding his decision to withhold $8,563 per month for his federal income taxes. See Tarneja, 164 S.W.3d at 559. The court found Husband “began greatly over withholding his federal income tax right after this case began as evidenced by the large tax refund [he] received in 2022 ($30,000) and expected in 2023.” The court found his “more accurate federal withholding” should be $2,601, based on 2021 paystubs, for withholding of $5,635 per month. The court calculated Husband's gross income of $29,167 reduced by all taxes resulted in net income of $20,938. After deducting his uncontested and generous personal expenses of $12,415 per month (compared to Wife's of $7,676), the court found Husband had a balance of $8,523 to pay maintenance. In fact, Husband still has $4,201 in disposable income after satisfying his $4,322 maintenance obligation each month. When combined with his extra expense of $4,739, Husband enjoys a standard of living greater than Wife of $8,940 per month.

We find the court did not err in reducing Husband's federal income tax withholding by $2,928 per month in determining his ability to pay maintenance. We are compelled to point out Husband's own calculation of $18,010 in net income less expenses leaves him with a balance of $1,273 after meeting his “reasonable needs” of $12,415 and meeting his maintenance obligation of $4,322. We are unmoved by his claim the court somehow erred in calculating his net monthly income because even using his numbers, he still enjoys a higher standard of living than Wife of $6,012 per month.

The trial court found “[Husband's] interest in punishing [Wife] continues to cloud his judgment and sense of fairness.” We agree and hold the trial court did not abuse its discretion in either not imputing investment income to Wife in its maintenance calculation, or considering the standard of living Wife enjoyed during the marriage and adjusting her living expenses before calculating maintenance. Further, the trial court did not err in using a reduced amount of federal tax withholding to calculate Husband's income and determine his ability to pay maintenance. Husband has not met his burden of showing the maintenance award was “so unduly weighted in favor of [Wife] that it constitutes an abuse of discretion” when he still has excess income even after paying both his own generously calculated monthly expenses and Wife's maintenance. Thomas v. Thomas, 76 S.W.3d at 300. Husband's fourth, fifth, and sixth points are denied.

Conclusion

The trial court's judgment is affirmed.

FOOTNOTES

1.   Three children were born of marriage; however, the issues on appeal do not involve their custody and support.

2.   All references to Rules are to Missouri Supreme Court Rules (2024).

3.   Husband generally argued the applicable standard of review in Murphy v. Carron, 536 S.W.2d at 32, in his brief, but at oral argument counsel clarified he was seeking relief under the erroneous application of the law standard of review.

4.   All further statutory references are to RSMo (2016) unless otherwise indicated.

5.   “If a party fails to support a contention with relevant authority or argument beyond conclusory statements, the point is deemed abandoned.” LR.S. v. C.A.S., 525 S.W.3d 172, 196 (Mo. App. E.D. 2017) (internal citations omitted).

Lisa P. Page, Judge

Robert M. Clayton III, Presiding Judge and Michael E. Gardner, Judge concur.