IN RE: the Marriage of Elijah Dylan PRYOR (2026)

Cortni Pryor (Wife) appeals from a judgment dissolving her marriage to Elijah Pryor (Husband). Wife presents eight points for decision. She contends the trial court erred by: (1) allowing two ex parte communications between the trial court and the guardian ad litem; (2) excluding the testimony of the parties’ two minor children; (3) calculating child support for the oldest child paid directly to that child; (4) failing to award maintenance to Wife because she received “sufficient property” to provide for her reasonable needs; (5) failing to award maintenance to Wife, finding she is “able to support herself”; (6) dividing marital property “in lieu of granting maintenance”; (7) ordering Wife to refinance the marital residence to pay $60,000 to Husband, and Husband to pay Wife $65,000 from his 401(k) plan; and (8) granting Husband, rather than Wife, the right to claim the youngest child as a dependent on his federal and state tax returns. Points 7 and 8 have merit. We vacate the parts of the judgment dealing the parties’ equity payments in the property division and the challenged tax exemption. We remand with directions to grant Wife the tax exemption for the youngest child and for further proceedings consistent with this opinion. In all other respects, we affirm.

Standard of Review

“The judgment is presumed correct, and the challenging party bears the burden of proving it erroneous.” Brackney v. Walker, 670 S.W.3d 455, 458 (Mo. App. 2023). In this court-tried case, our review is governed by Rule 84.13(d) and Murphy v. Carron, 536 S.W.2d 30, 31-32 (Mo. banc 1976).¹ We are required to affirm the trial court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Ivie v. Smith, 439 S.W.3d 189, 198-99 (Mo. banc 2014). When considering whether the court misapplied the law, we review de novo the court's legal conclusions and application of the law to the facts. McLeod v. McLeod, 681 S.W.3d 215, 228-29 (Mo. App. 2023). In addition, our review is for prejudice, not mere error, and we will not reverse any judgment unless the error materially affects the merits of the action. Rule 84.13(b); Pickens v. Pickens, 687 S.W.3d 712, 715-16 (Mo. App. 2024).

We also note that, in custody matters, the trial court possesses broad discretion, and the court's decision will only be reversed if we are firmly convinced the welfare and best interests of the children require otherwise. Wilkerson v. Wilkerson, 707 S.W.3d 79, 92 (Mo. App. 2025); M.M. v. C.S., 668 S.W.3d 588, 592 (Mo. App. 2023). Similarly, with respect to the parties’ property division, the “trial court has broad discretion in identifying, valuing, and dividing marital property.” Landewee v. Landewee, 515 S.W.3d 691, 694 (Mo. banc 2017) (citation omitted). Appellate courts will interfere in marital property divisions only “where the division is so unduly favorable to one party that it constitutes an abuse of discretion.” Lollar v. Lollar, 609 S.W.3d 41, 46 (Mo. banc 2020) (citation omitted). “This Court presumes the property division was correct, and the appellant bears the burden of overcoming the presumption.” Id.

Finally, in reviewing the evidence, we give deference to the trial court's determination of the credibility of witnesses. Brackney, 670 S.W.3d at 459. “The trial judge is in a better position than this court to determine the credibility of the parties, their sincerity, character and other trial intangibles which may not be shown by the record.” Kelley v. Prock, 825 S.W.2d 896, 897 (Mo. App. 1992). A court is free to believe or disbelieve all or any part of a witness’ testimony. In re C.C.S., 393 S.W.3d 105, 108 (Mo. App. 2013). “We view the evidence and any reasonable inferences therefrom in the light most favorable to the court's decision and disregard all contrary evidence and inferences.” Id. So viewed, the following facts were adduced below.

Factual and Procedural Background

The parties were married in May 2003. Three children were born of their marriage: D.P., E.P., and C.P. In July 2020, after Husband and Wife filed cross-petitions for dissolution, the three children were ages 15, 12 and 6, respectively.

In April 2021, Wife filed a motion for an in-camera interview of the children. In August 2021, the trial court appointed Daniel Leslie as the guardian ad litem to represent the children (GAL).

On February 1, 2023, Wife filed a second request for an in-camera interview of the children. On February 6, 2023, GAL filed his objection to the requested in-camera interviews of the children, with the exception of the eldest child, who was 18 years old at the time. GAL stated in his objection that he believed he could “convey to the court appropriately and adequately the desires of the minor children.” At a later hearing on Wife's motion, held in May 2023, GAL stated that he believed Wife “coaches the children extensively” and that he was “completely opposed to the children testifying in-camera in the case.”

During the same timeframe in early 2023, another matter arose regarding a possible conflict of interest between GAL and one of Husband's attorneys, Charles Hurth (Hurth). On February 10, 2023, Hurth disclosed that, as a member of an LLC, he owned the office space currently rented by GAL. Hurth stated that “it's created a conflict that needs – that necessitates me getting out of this case. Because I don't think I can represent my client's interests when the GAL is a tenant of mine. Even if it's not mine, it's a corporation that I control.”

In response, GAL completely disagreed that there was a conflict in this matter, stating “I did nothing wrong as an attorney and a Guardian ad Litem.” As he told the court:

[The argument] that I would owe some duty of loyalty to Mr. Hurth as a landlord, and I would fear retaliation if I did not rule in the favor of his client and his side of the case. That conflict is gone. And as I said in chambers and would say publicly on the record, I have no problem telling Mr. Hurth in a case to go straight to hell[.]

He also said that to suggest a conflict “questions my integrity and my ethics. [A]nd – no one here has said that. I would take offense at that, Judge, personally and professionally. ․ I would respectfully request the Court not remove me. I've done three years of work in this case and would like to continue.”

Wife's attorney did not want to waive any potential conflict, but she believed that “Hurth getting out of the case resolves that conflict.” The trial court agreed. The court granted Hurth's request to withdraw and to show him removed from the case, after which GAL, Hurth, and Husband's remaining attorney submitted a request for an informal advisory opinion about the matter to the “Office of Legal Ethics Counsel” (Ethics Counsel).

On March 31, 2023, GAL sent the trial court an email informing the judge that he had filed a motion for additional fees. The email was not sent to the other attorneys. GAL stated in the email: “You may remember this case because it was the case where Mr. Hurth and I were concerned about a conflict. Incidentally, the Bar has said it is NOT a conflict[.]”

On April 5, 2023, a letter from the Ethics Counsel was forwarded to Hurth, GAL, and Husband's attorney. The letter advised Hurth and GAL that they should apply an analysis specified in the letter “to determine whether the lawyer's personal financial interest, or personal or financial relationship with the other lawyer, resulting from the office space lease arrangement will materially limit the representation of the lawyer's clients by affecting the lawyer's professional judgment.” On May 2, 2023, after consideration of the opinion letter from the Ethics Counsel, Hurth filed a new entry of appearance as co-counsel for Husband. The record shows no objection by Wife.

On May 16, 2023, the trial court heard argument on Wife's motion for the in-camera interviews of the children. The court took the matter under advisement and denied the motion on May 22, 2023.

On June 5, 2023, Wife filed her witness list, which included the names of all three children as witnesses for Wife. This case was tried on June 7, June 9, and September 11, 2023.

June 9th was the second day of trial. E.P., the middle child, then age 15, appeared in court to testify regarding her wishes and concerns about custody and visitation. At the beginning of that day, the trial court indicated that it had already had a “chambers conference” with the attorneys regarding E.P.’s potential testimony. At trial, GAL objected to any testimony by E.P. and stated that he believed that he alone should be allowed to communicate to the court what the desires of the children were as to custody and visitation.

Later that same day, the trial court announced that it was “going to deny the request to call [E.P.] as a witness [to] preserve the relationship of both parties with the minor children.” The judge explained that this was a “contentious dissolution and that the children are already being put in the middle of this one way or the other [and] I do not want to run the risk of damaging that further.” The judge also explained that he asked GAL “while he was in chambers whether or not he felt comfortable that he could convey the wishes of the minor children, and to paint an accurate picture of what had happened to date for the Court. And he did indicate that he can.” According to GAL, after the judge ruled that the minor children would not testify at trial, the judge asked GAL to “type – or to present the wishes of the children in writing.” While the court did not allow E.P. to testify, the court did allow Wife to call D.P., the oldest child, who was then age 18.

On September 11th, the final day of trial, GAL testified about his recommendation. He explained that his recommendation conflicted with the wishes of the children a “little bit” and this was why GAL had a “discussion with the Judge” about whether he should provide the children's wishes “on a public record versus protecting their privacy” considering the “retaliation that could come against them.” GAL stated that he made a “promise” to the children that he would not divulge information they shared with him in the presence of their parents. GAL made his recommendation publicly on the record, recommending a 50/50 plan for parenting time with both minor children to preserve a meaningful relationship with Husband.

As the court requested, by the end of trial, GAL had typed up the wishes of the two minor children, updated as of the second day of trial. GAL placed them in a brown envelope. After GAL's testimony concluded, the judge asked GAL if he had “the positions or the desires of the children[.]”GAL responded that he did, stating “[t]hey're in this envelope[,]” which he handed to the judge. GAL did not provide copies to the other attorneys. According to GAL, “[t]he judge ordered me to give them to him and him alone, and I followed the court's order.”

On January 5, 2024, the trial court entered its judgment dissolving the marriage of the parties. With respect to custody, the trial court granted both parties’ request for joint legal and joint physical custody. With respect to parenting time, the court ordered the parties to comply with the terms and conditions set forth in Husband's parenting plan, which proposed a 50/50 physical custody schedule. The court made extensive findings considering all relevant factors under § 452.375.2(1)-(8).² With respect to a “continuing and meaningful relationship with both parents” pursuant to § 452.375.2(2), the court found that Wife sought to deny Husband that relationship:

[Wife] has systematically and routinely sought to inject herself and her disdain for [Husband] into the minds, thoughts and actions of the children. She has actively restricted the time and ability of the children to maintain their bond with [Husband].

With respect to the “wishes of the children as to the children's custodian” pursuant to § 452.375.2(8), the trial court referred to the children's preferences as provided by GAL in a “sealed report to the Court in order to protect the children from any repercussions” and then found as follows:

[GAL] provided in-depth testimony regarding his interaction with the minor children and his observations throughout the pendency of this case and his concerns that from the beginning, [Wife] has worked to alienate the minor children from [Husband] as a way of punishing [him] for his affairs. ․

GAL testified credibly that he does not believe that [Husband] was a good husband; however he does believe that [Husband] has been a good father who was actively involved in the day to day care of his children prior to the separation, and who has tried to be involved with his children now to the extent he has been allowed.

[GAL] is concerned that if the Court does not enter a custody order that will ensure that [Husband] can have meaningful custodial time with the children, free from interference from [Wife], then [E.P. and C.P.] will end up estranged from [Husband] the way [D.P.] has become. The Court seconds this concern and seeks to ensure that both parents can have meaningful custodial time to protect the parent child relationship.

The judgment also: (1) ordered that Husband pay a portion of his child support, the amount allocated for the oldest child, D.P., directly to D.P. as long as she is eligible for child support; (2) denied Wife maintenance; (3) divided the parties’ marital property by awarding approximately 52.23% to Husband and 47.77% to Wife; (4) awarded the marital home to Wife and ordered that she refinance to pay Husband $60,000 out of the equity in the home; (5) awarded Wife $65,000 from Husband's 401(k); and (6) permitted Husband to claim C.P. as a dependent every year on his federal and state tax returns.

This appeal followed. Additional facts will be included below as we address Wife's eight points on appeal. For ease of analysis, we will discuss certain points together.

Discussion and Decision

Point 1 – GAL Ex Parte Communications

Wife's first point contends the trial court “erroneously declared or applied the law” by “allowing two ex parte communications” namely: (1) the brown envelope with the “positions of the children” that GAL gave to the court at the court's request; and (2) the email GAL sent to the trial court on March 31, 2023, requesting additional GAL fees and referring to the possible conflict with Hurth. According to Wife, the two ex parte communications provided Husband a “procedural, substantive and/or tactical advantage,” and “should have resulted in the disqualification” of both GAL and the judge prior to the entry of the trial court's judgment.³ For the following reasons, we disagree with both of Wife's arguments.

We first address Wife's challenge to GAL's communication regarding the wishes of the children that GAL gave to the court at the judge's request. We begin our analysis with § 452.423, which provides that “[i]n all proceedings for child custody or for dissolution of marriage or legal separation where custody, visitation, or support of a child is a contested issue, the court may appoint a guardian ad litem.” § 452.423.1. In relevant part, this statute directs that the “guardian ad litem shall”:

(1) Be the legal representative of the child at the hearing, and may examine, cross-examine, subpoena witnesses and offer testimony;

(2) Prior to the hearing, conduct all necessary interviews with persons having contact with or knowledge of the child in order to ascertain the child's wishes, feelings, attachments and attitudes. If appropriate, the child should be interviewed[.]

§ 452.423.3(1)-(2). “It is the guardian ad litem's duty to stand in the shoes of the child and to weigh the factors as the child would weigh them if his judgment were mature and he was not of tender years.” Int. of J.L.H., 647 S.W.2d 852, 861 (Mo. App. 1983); see In re Marriage of Patroske, 888 S.W.2d 374, 384 (Mo. App. 1994); § 452.375.2(1)-(8). A guardian ad litem also ensures that the child's best interests are represented and protected because the parents’ attorneys are protecting their respective clients’ interests. Taylor v. Taylor, 60 S.W.3d 652, 655 (Mo. App. 2001). A guardian ad litem's “presence merely lends the court a perspective that is unhampered by ex parte restrictions and tainted parochial interests so that the trial court can render a decision that is truly in the best interests of the child.” In re Marriage of Harris, 446 S.W.3d 320, 330 (Mo. App. 2014); see also Patroske, 888 S.W.2d at 384-85 (guardian ad litem is to assist in providing requisite information pertaining to best interests of child untainted by parochial interests of parents).

In addition, “Missouri case law recognizes that a guardian ad litem does not function in the traditional role of an attorney for the children, but instead serves largely as an arm of the court.” DeSpain v. DeSpain, 717 S.W.3d 796, 804 (Mo. App. 2025) (citation modified); see also State ex rel. Bird v. Weinstock, 864 S.W.2d 376, 384 (Mo. App. 1993) (in custody matters, the guardian ad litem also “has traditionally been viewed as functioning as an agent or arm of the court, to which it owes its principal duty of allegiance, and not strictly as legal counsel to a child client”). In Bird, the eastern district of this Court explained:

In essence, the guardian ad litem role fills a void inherent in the procedures required for the adjudication of custody disputes. Absent the assistance of a guardian ad litem, the trial court, charged with rendering a decision in the “best interests of the child,” has no practical or effective means to assure itself that all of the requisite information bearing on the question will be brought before it untainted by the parochial interests of the parents. Unhampered by the ex parte and other restrictions that prevent the court from conducting its own investigation of the facts, the guardian ad litem essentially functions as the court's investigative agent, charged with the same ultimate standard that must ultimately govern the court's decision – i.e., the “best interests of the child.” Although the child's preferences may, and often should, be considered by the guardian ad litem in performing this traditional role, such preferences are but one fact to be investigated and are not considered binding on the guardian.

Bird, 864 S.W.2d at 384 (citation omitted). While the trial court is similarly not bound by the opinion or recommendation of the guardian ad litem, “under our statutory scheme for adjudication of custody disputes, it is imperative that the guardian ad litem investigate and present its perspective to the trial judge, thereby enabling the court to render a decision in accordance with the statutory standard of ‘best interests of the child.’ ” Id. at 385; see J.L.H., 647 S.W.2d at 860-61; § 452.375.2. Thus, a guardian ad litem's “principal allegiance is to the court, and his function is to advocate what he believes to be the best interests of the child by providing the court requisite information bearing on those interests untainted by the parochial interests of the child's parents.” Davis v. Schmidt, 210 S.W.3d 494, 509 (Mo. App. 2007); see Guier v. Guier, 918 S.W.2d 940, 950 (Mo. App. 1996); Patroske, 888 S.W.2d at 384-85.

Further, standards for guardians ad litem promulgated by our Supreme Court also bear on this issue.⁴ As relevant here, Standard 13.0 governs recommendations to the trial court and requires that “[d]uring the proceedings, the guardian ad litem must inform the court of the child's wishes and preferences even though different from the guardian ad litem's recommendation.” Id. (emphasis added).

Here, GAL testified on the record as to his recommendation, which differed a “little bit” from the wishes of the children. By requesting the “desires of the children,” the trial court asked GAL to submit the preferences of each child, which is exactly what GAL was required to provide. See id.; DeSpain, 717 S.W.3d at 803. In our view, the court's request is consistent with GAL's role as an investigative arm of the court. DeSpain, 717 S.W.3d at 804; Bird, 864 S.W.2d at 384-85. This role is particularly needed in situations such as this case, which the judge described as “a contentious dissolution” where the children are “being put in the middle” and risking damage to their relationship with one or both parents. Further, the court made no secret of its intention to rely on GAL to provide the wishes of the children. The judge announced to the parties in court that the judge had asked GAL in chambers if GAL could “convey the wishes of the minor children” and “paint an accurate picture of what had happened to date for the Court” and that GAL indicated that he could do so. Thus, contrary to Wife's argument, the trial court's request that GAL provide the court with the preferences of the minor children and acceptance of GAL's written response provided only to the court, was not based on an erroneous declaration or application of the law.

Lastly, Wife's argument – that the trial court erred in allowing GAL's email requesting additional GAL fees and referring to the possible conflict between GAL and Hurth – also fails. Assuming arguendo that the court did err in allowing the email referring to the possible conflict, Wife makes no reasonable argument as to how that single reference “materially affected the merits of the action” as required for this Court to find reversible error. See Rule 84.13(b) (no appellate court shall reverse any judgment unless it finds error was committed by the trial court against the appellant that materially affected the merits of the action); Pickens, 687 S.W.3d at 715-16 (“our review is for prejudice, not mere error, and we will not reverse any judgment unless the error materially affects the merits of the action”). We further note that Wife's actions at trial indicate a lack of material effect. While Wife mentioned this error after trial in her motion for new trial, during trial: (1) Wife initially believed any conflict between GAL and Hurth was resolved when Hurth withdrew from Husband's representation; and (2) Wife made no objection whatsoever when Hurth later re-entered his appearance after applying the conflict analysis recommended by the Ethics Counsel.

For all these reasons, Wife has failed to show that the trial court committed reversible error in the way the court declared or applied the law with respect to the two challenged ex parte communications from GAL. Point 1 is denied.

Point 2 – Testimony of the Minor Children

Wife's second point contends the trial court “erroneously applied or declared the law” by “excluding the testimony of [the minor children, E.P. and C.P.] both as an in-camera interview” and “as the normal testimony of E.P.” According to Wife, the trial court failed to consider “(8) the unobstructed input of a child, free of coercion and manipulation, as to the child's custodial arrangement,” and therefore “failed to properly consider the evidence and/or properly apply the correct legal standard” as required by § 452.375.2. We disagree.

The trial court did not fail to properly apply the correct legal standard. Wife's point quotes a version of the eighth factor under § 452.375.2 that was not in effect at the time this case was filed in 2020.⁵ Here, the court properly considered “(8) The wishes of [each] child as to the child's custodian” pursuant to the statute in effect at the time and made detailed findings regarding the same.

Further, the trial court was not required to grant Wife's requested in-camera interview of the minor children. See Erickson v. Blackburn, 169 S.W.3d 69, 76-77 (Mo. App. 2005). Interviewing a minor child to ascertain the child's preference of a custodian is governed by § 452.385, which states that “[t]he court may interview the child in chambers[.]” Id. (emphasis added); Erickson, 169 S.W.3d at 76-77. “There is no requirement that the judge do so, nor is there any mention of the age of the child being a factor. It is completely within the discretion of the trial court whether to interview a child in chambers[.]” Erickson, 169 S.W.3d at 76.

Similarly, the trial court was not required to grant Wife's request to allow E.P. to testify at trial. See id. at 76-77. Where, as here, there was “sufficient evidence in the record of the child's wishes, the court could feel certain that it had enough information as to the child's preference without either interviewing or calling the child to testify.” Id.; see Osmun v. Osmun, 842 S.W.2d 932, 936 (Mo. App. 1992). Accordingly, Point 2 is denied.

Point 3 – Child Support

Wife's third point challenges the trial court's “calculation of child support to be paid directly to the oldest child in the amount of $340.00 per month.” The court ordered Husband to pay that amount directly to D.P. until she is “no longer entitled to support[,]” which the judgment specified as when she completes “a secondary school program” or “reaches age [21], whichever first occurs.” D.P. testified at trial in June 2023 that she planned to attend “Mizzou” beginning in August 2023, and no other updates about her studies occur in the record.

Point 3 contends the trial court “erroneously declared or applied the law” because the court “calculated child support for the three minor children and then assigned a random amount of child support to be paid directly to the oldest minor child,” and that the trial court's “failure to use the proper procedures for the calculation of child support for the oldest minor child constitutes reversible error[.]”

In response, Husband asserts that D.P., born in August 2004, is no longer entitled to support because she was 21 years of age “as of the writing of this brief,” which Husband filed in November 2025. Husband therefore argues that Wife's third point is moot. We agree.

Whether one of Wife's points is moot due to subsequent events is a threshold question in our appellate review. Matter of Spruill, 709 S.W.3d 438, 444 (Mo. App. 2025). In deciding an issue of mootness, an appellate court may consider matters outside the record. State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001). D.P.’s eligibility for child support ended when she reached the age of 21. See § 452.340.5. An issue is moot when the question presented for our decision would not have any practical effect upon any then-existing controversy. Bank of Washington v. McAuliffe, 676 S.W.2d 483, 487 (Mo. banc 1984); Reed, 41 S.W.3d at 473. Because D.P. is over 21 and no longer entitled to child support, recalculation of overall support would have no practical effect on this particular controversy. See Reed, 41 S.W.3d at 474; Spruill, 709 S.W.3d at 444. Point 3 is moot.

Points 4, 5 and 6 – Maintenance

Wife's fourth, fifth and sixth points challenge the trial court's denial of maintenance to Wife. She requested maintenance of $600 per month to help her pay the mortgage on the marital residence awarded to her. During the pendency of the dissolution, Husband had been paying that amount, which was then 50% of the mortgage, as directed by the court in a Pendente Lite (PDL) Order. In the dissolution judgment, however, the court denied Wife maintenance after applying the two-part test pursuant to § 452.335.1.⁶ The court found:

[Wife] is receiving sufficient property to provide for her reasonable needs, including considerable equity in the marital real property, a significant portion of the personal property, and a significant portion of [Husband's] 401(k) Plan; and, [Wife] is able to support herself through appropriate employment as a teacher.

The court went on to find that, “[e]ven if [Wife] were to meet the legal requirements for marital maintenance under Section 452.335[,] after considering each of the remaining relevant factors, marital maintenance would not be warranted.”⁷

Points 4 and 5 contend the trial court erred by failing to award maintenance to Wife, because the trial court's findings: (1) that Wife is “receiving sufficient property” to provide for her reasonable needs, “fails to apply the proper legal standard for the award (or denial of an award)”; and (2) that Wife is “able to support herself through appropriate employment as a teacher” is “against the weight of the evidence[.]” Point 6 contends the trial court erred in dividing property between the parties “in lieu of granting maintenance to Wife,” relying on Fisher v. Fisher, 278 S.W.3d 732 (Mo. App. 2009), in which that same statement by the trial court constituted reversible error.⁸ We do not reach these points, however, due to briefing deficiencies involving Wife's statement of facts relating to these points.

Rule 84.04(a)(3) requires an appellant's brief to contain a “statement of facts[.]” Id. Insofar as relevant here, this “statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument. All statements of facts shall have specific page references to the relevant portion of the record on appeal, i.e., legal file, transcript, or exhibits.” Rule 84.04(c).

Here, Wife's statement of facts, as it pertains to her fourth and fifth points, omits key evidence necessary to the disposition of both points. For example, with respect to the trial court's finding that Wife “is able to support herself through appropriate employment as a teacher,” Wife omitted testimony from the PDL hearing at which she stated that she could pay the $600 that Husband was paying toward the mortgage:

Q. Are you capable of financially paying that extra $600 a month?

A. Yes, I could. If – it would – it would strap me very tight if I did take it over, but yes, I could.

At trial, the court referred to evidence adduced at the PDL hearing, stating that “the Court will take judicial notice of the testimony that it heard and regarding a PDL, it was some months ago, but I still recall that testimony pretty clear, so I'm going to take judicial notice of all of that.” In addition to Wife's testimony above, Wife failed to include evidence as to other property she received, or evidence as to the remaining factors enumerated in § 452.335.2.

As to Wife's sixth point, her statement of facts omits a page reference to the relevant portion of the record on appeal necessary to review her claim of error. See Rule 84.04(c). Specifically, Wife merely asserts that the trial court divided property “in lieu of granting maintenance” as stated in Fisher, without citing to anywhere in the judgment or the record where the court here made such a statement. See Fisher, 278 S.W.3d at 733-34. Indeed, this Court has found no such statement in this record. Instead, the judgment shows that the trial court's ruling on Wife's request for maintenance, pursuant to factors under § 452.335, was entirely separate from the court's division of property pursuant to § 452.330.

Thus, Wife has omitted facts and references essential to our review. “Failure to include, in the statement of facts, the facts upon which an appellant's claim of error is based fails to preserve the contention for appellate review.” Kent v. Charlie Chicken II, Inc., 972 S.W.2d 513, 515 (Mo. App. 1998); see Matter of Marvin, 682 S.W.3d 788, 795-96 (Mo. App. 2023). It is not this Court's duty to supplement a deficient brief by combing the record in search of facts to support an appellant's claim of error. Sturgell, Tr. of Sturgell Fam. Tr. dated Nov. 10, 1994 v. Youngblood, 696 S.W.3d 915, 921 (Mo. App. 2024). Because Appellant has failed to provide this Court with the information necessary to review Points 4, 5 and 6 on the merits, nothing is preserved for our review with respect to these points. See Gibson v. Rice, 571 S.W.3d 232, 235 (Mo. App. 2019).

Point 7 – Property Division

Wife's seventh point contends the trial court erred in dividing the marital property. As mentioned previously, the trial court has broad discretion in dividing marital property, and we will interfere in marital property divisions only where the division is “so unduly favorable to one party” that it constitutes an abuse of discretion. Stone v. Stone, 450 S.W.3d 817, 820 (Mo. App. 2014); see Lollar, 609 S.W.3d at 47. The following facts are relevant to this point.

With respect to dividing the marital property, the court first reviewed the misconduct of the parties. See § 452.330.1(4). Some of Wife's actions caused Husband financial hardship. The court found, inter alia, that Wife, “without [Husband's] knowledge, filed separate, head of household returns for 2020, 2021 and 2022,” and because “[Husband] withdrew $50,000.00 from his 401(k) in 2020 to pay off some of the marital debt, he was subjected to additional taxes” taking him three years to repay.⁹

The court also noted significant discrepancies in Wife's valuations of marital and nonmarital property and adopted “the property values listed on [Husband's] Exhibit 9-A, as the division of assets and debts for the parties herein.”¹⁰ The court found the overall property division to be “fair”:

[I]n considering the value of non-marital assets awarded to each of the parties, including the value of [Wife's] teacher's retirement, and the value of [Husband's] nonmarital assets that [were] never provided to him[,] a division of marital assets of approximately 52.23% to [Husband] and approximately 47.77% to [Wife] is fair, just and equitable and not unconscionable.

As specified in Exhibit 9-A, the trial court first awarded Wife the marital residence, attributing a value of $359,000 to her, with a loan balance of $161,784. By the time of trial, the home had appraised for a higher value, $419,000, and Husband requested that he receive the $60,000 difference. The court granted Husband's request and directed Wife to refinance the mortgage and pay $60,000 to Husband from the home's equity. The court further directed Husband to transfer from his 401(k) plan $65,000, which was then half the plan's value, to an IRA for Wife, stating:

[Wife] shall have six (6) months in which to refinance the marital residence. Immediately upon the refinance of the marital real property, or within six (6) months, whichever is sooner, [Husband] shall receive the sum of $60,000.00 from [Wife] as and for his portion of equity in the marital real property, and [Husband] shall be granted a Judgment thereon. [Wife] shall have [Husband's] name removed from the mortgage and she shall indemnify and hold [Husband] harmless thereon. Upon receiving this payment, [Husband] shall execute a Quit Claim Deed releasing his ownership interests in the marital residence.

[Wife] shall receive the sum of $65,000.00 from [Husband's] 401(k) Plan to be distributed from [Husband's] plan to a separate IRA account established by [Wife] in [her] name. As a result of a transfer, there will be no tax liability on the part of either party. If a Qualified Domestic Relations Order is necessary to make the transfer from [Husband's] 401(k) Plan, [Wife's] counsel shall provide same, and the Court shall retain jurisdiction to approve the same.

There will be no other equity payment from one party to the other.

In Point 7, Wife first argues that the ordered equity payments, requiring her to refinance to pay a sum to Husband, and for Husband to withdraw a similar sum from his 401(k) plan, were meant to “cancel each other out” and intended as “marital equalization payments” to the parties. At a minimum, Wife asserts that the payments are “impractical, as the practical Judgment would be to grant Wife the marital residence free and clear, which would then result in Wife only receiving $5,000.00 from Husband's retirement account.” As ordered, however, Wife contends the equity payments are “so unduly unfavorable to her as to constitute an abuse of discretion” because the record shows: (1) little or no evidence that she is financially able to refinance; (2) if refinancing was possible, it would be at “no expense to Husband” but “great expense to Wife” (asserting closing costs and higher interest rate); (3) Wife is not capable of paying a higher mortgage; and (4) that like Husband, accessing retirement proceeds transferred to her would also trigger additional penalties. According to Wife, without evidence of the additional costs and penalties, and that Wife is financially capable of refinancing, the division of property lacks evidentiary support and unduly favors Husband. We agree.

In support of Wife's argument, she relies on Galloway v. Galloway, 122 S.W.3d 705 (Mo. App. 2003), involving the possibility of awarding one spouse the marital real estate and as an offset of that award, giving the other spouse different marital property of approximately the same value. Id. at 707-08. The possibility of this disposition arose after the trial court ordered the sale of the marital home, the surrounding 40-acre tract of property, and a separate 20-acre tract. Id. at 707. The appellant argued that the court erred by ordering the sale because there was no evidence that the property could not be divided in kind. Id. The eastern district of this Court agreed, stating:

While generally a marital residence is not divisible in kind and division of marital real estate is problematic, if it is possible to award one spouse the real estate in its entirety and offset that award by giving the other spouse different marital property of approximately equal value, then the real estate need not be sold.

Id. at 707-08 (emphasis added). The Court determined the record lacked an evidentiary foundation that the properties could not be divided in kind. Id. at 708. On remand, the Court clarified that further evidence was needed to determine if the properties could be divided or offset by a different award. Id.

We reach a similar conclusion here. Wife testified that paying the full, existing mortgage payment was already “very tight” before paying a likely higher mortgage payment after refinancing, provided she qualifies for refinancing. Further, Husband testified how access to proceeds from his 401(k) plan resulted in significant tax penalties to him, and it is unclear from the record if Wife would encounter similar penalties in accessing retirement proceeds transferred to her. Without further evidence of these costs and penalties, the property division as ordered “lacks an evidentiary foundation” requiring further evidence and/or consideration of the matter. Id. On remand, the trial court may: (1) consider further evidence of additional costs and penalties associated with refinancing and access to retirement plan proceeds; or (2) avoid such costs altogether by ordering Husband transfer the net effect of the equity payments – $5,000 from his 401(k) plan into an IRA for Wife – as an offset of awarding Wife the marital home. See id.; see also Handy v. Handy, 338 S.W.3d 852, 856-57 (Mo. App. 2011) (remanding for further proceedings concerning disposition of the marital home when the record showed “it was possible to award one spouse the marital home and offset that award by giving the other spouse other marital property of commensurate value”). Point 7 is granted.

Point 8 – Tax Exemption

Wife's eighth point contends the trial court erroneously declared or applied the law by “granting Husband the right to claim [C.P.] on Husband's taxes every year[,]” citing Nevins v. Green, 317 S.W.3d 691 (Mo. App. 2010).¹¹ According to Wife, if the trial court wishes to award said tax exemption to the non-custodial parent (Husband) then the trial court “must first rebut the presumption with specific findings of why said portion of the Form 14 is unjust and inappropriate[.]” She argues the trial court “failed to make any specific findings rebutting the presumption of why Wife (the custodial parent) should not receive the minor child [C.P.] as a tax exemption[.]” Wife therefore requests that she be granted the tax exemption for C.P.

In response, Husband concedes this point. He agrees that the “language in the Judgment does not allow for a non-custodial parent to receive a tax deduction for a minor child of this dissolution.” Accordingly, Point 8 is granted.

Conclusion

We vacate the trial court's orders with respect to the parties’ equity payments in the property division and remand for further proceedings on the issue. We vacate that part of the judgment granting Husband the right to claim C.P. on his taxes, and remand with directions for the trial court to grant that right to Wife. In all other respects, the judgment of the trial court is affirmed.

FOOTNOTES

1.   All rule references are to Missouri Court Rules (2025), unless otherwise specified.

2.   All references to § 452.375 are to RSMo Cum. Supp. (2018). All other statutory references are to RSMo (2016).

3.   In support of Wife's argument, she relies on Rule 2-2.9. Supreme Court Rule 2, governs the Code of Judicial Conduct and addresses ex parte communications in Rule 2-2.9, which states in relevant part:(A) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter, except as follows:(1) When circumstances require it, ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters, is permitted, provided:(a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and(b) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond.Rule 2-2.9(A)(1)(a)-(b), Missouri Court Rules (2023) (italics added).

4.   The “Standards with Comments for Guardians ad Litem in Juvenile and Family Court Division Matters,” Standards 1-14, are found in Appendix C to the “Rules of Practice and Procedure in Juvenile and Family Court Divisions of the Circuit Court,” Missouri Court Rules (2023).

5.   In 2020, the eighth factor provided in full:(8) The wishes of a child as to the child's custodian. The fact that a parent sends his or her child or children to a home school, as defined in section 167.031, shall not be the sole factor that a court considers in determining custody of such child or children.452.375.2(8). This factor was amended in 2023 to include that language Wife quotes in her point regarding the “unobstructed input of a child[.]” § 452.375.2(8) RSMo Cum. Supp. (2023). The change did not become effective until August 28, 2023. See 2023 Mo. S.B. No. 35, § A (adopted July 6, 2023). Thus, this statute was not in effect when the trial court made its ruling with respect to the testimony of E.P. and C.P. This statutory change cannot be allowed to operate retrospectively and affect such past transactions to the substantial prejudice of the interested parties. Wiedner v. Ferrellgas, Inc., 607 S.W.3d 231, 238 (Mo. App. 2020).

6.   Section 452.335.1 provides, in relevant part, that the court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance:(1) Lacks sufficient property, including marital property apportioned to [her], to provide for [her] reasonable needs; and(2) Is unable to support [her]self through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.§ 452.335.1(1)-(2).

7.   The remaining relevant factors apply to the amount and duration of maintenance, and include:(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;(2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;(3) The comparative earning capacity of each spouse;(4) The standard of living established during the marriage;(5) The obligations and assets, including the marital property apportioned to him and the separate property of each party;(6) The duration of the marriage;(7) The age, and the physical and emotional condition of the spouse seeking maintenance;(8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;(9) The conduct of the parties during the marriage; and(10) Any other relevant factors.§ 452.335.2.

8.   In Fisher, the western district of this Court found reversible error when the trial court stated it was dividing property “in lieu of a permanent award of maintenance,” ruling the trial court impermissibly “disposed of the marital home as a replacement for maintenance, not as a division of property.” Id. at 733-34.

9.   The court also found that: (1) Wife allowed a $7,000 check, issued in the name of both parties, to expire rather than divide the proceeds with Husband; and (2) while in Wife's possession, Husband's rifle scope had been “severely scratched” and his hunting and winter clothes were “damaged beyond repair” with glue and bleach. The court ultimately found Husband's affairs during the marriage to be “abhorrent” and described Wife's actions “before, during and post-separation” as “vindictive in nature.”

10.   Exhibit 9-A includes a section valuing and dividing marital property that is three pages long, detailing the parties’: (1) real estate; (2) motor vehicles; (3) stocks and investments; (4) furniture, appliances, and household goods; (5) retirement benefits and life insurance; and (6) miscellaneous property, including tools, firearms, and a Kubota tractor and implements. Wife does not challenge any of the valuations on appeal.

11.   In Nevins, the western district of this Court explained:For federal tax purposes, the parent who has custody for the greater portion of the calendar year is referred to as the “custodial parent.” 26 U.S.C. § 152(e)(4)(A). The other parent is referred to as the “noncustodial parent.” Id. at § 152(e)(4)(B). ․ Under federal law, the custodial parent will receive the exemption. Simon-Harris v. Harris, 138 S.W.3d 170, 182 (Mo.App. W.D. 2004). An exception to the general rule provides that the noncustodial parent may claim the child as a dependent if the custodial parent signs a written declaration that he or she will not claim the child as a dependent for the taxable year, and the noncustodial parent attaches the declaration to his or her return for the taxable year. 26 U.S.C. § 152(e)(2)(A)-(B).․[In Missouri,] Assumption 7 of Form 14 provides that “[t]he schedule of basic child support obligations assumes that the parent entitled to receive support claims the tax exemption for the children entitled to support.” This court has held that, because the Form 14 child support calculation “is based, in part, on Assumption 7, to award a dependent tax exemption to the child-support obligor, the trial court is required to rebut the PCSA as being unjust or inappropriate, even if the dollar amount is not rebutted.” See, e.g., Jarvis v. Jarvis, 131 S.W.3d 894, 898 (Mo. App. W.D. 2004). Therefore, to award Father the tax exemption, the trial court was required to rebut the PCSA and make a written finding that it was unjust or inappropriate.Nevins, 317 S.W.3d at 698-99.

JEFFREY W. BATES, J.

BECKY J. WEST, J. – CONCUR MICHAEL E. GARDNER, Sp. J. – CONCUR