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Sullivan v. Sullivan4/12/2005
. . in that these funds [were] for future lost wages . . . and [were] to be set aside as non-marital[.]" Even assuming, arguendo, that the trial court erred as claimed, the appellant's point must fail in that he waived any objection to the court's property division on that ground.
In his "Statement of Marital and Non-Marital Property and Liabilities," the appellant listed his workers' compensation settlement as marital property. During his testimony, he stated that he was seeking a fair and equitable division of the parties' marital property and did not request that the court setoff any separate property to him. Hence, he waived any claim that the trial court erred in failing to setoff to him, as separate property, the proceeds of his workers' compensation settlement. See Roth v. Roth, 760 S.W.2d 616, 618 (Mo. App. 1988) (holding that the appellant waived his claim that the trial court erred in failing to classify the family home as 50% marital property and 50% non-marital property in that he "listed the house as marital property"). In other words, " nvited error at trial cannot serve an appellant on appeal." Id.
Point denied.
VIII.
In Point VIII, the appellant claims that the trial court erred in awarding the respondent attorney's fees of $3,733.75 because it "misapplied the law and abused discretion by awarding [the respondent] one-half of her attorney fees and not awarding his as set forth in 452.355.1[.]" Specifically, he claims that " he court must look at what is just from the view of a reasonable person after considering the financial resources of the parties along with other factors on the date of dissolution and abused discretion in not doing so." Hence, essentially the appellant is claiming that the trial court erred in awarding the respondent attorney's fees in that it misapplied section 452.355.1 by failing to consider all relevant factors.
Missouri courts typically follow the "American rule" with regard to awards of attorney's fees and costs under which each litigant should bear his or her own litigation expenses. Laubinger v. Laubinger, 5 S.W.3d 166, 181 (Mo. App. 1999). "However, a trial court may order one party to pay the other's attorney's fees and costs where such is authorized by statute." Id. (citation omitted). In that regard, section 452.355.1 provides:
Unless otherwise indicated, the court from time to time after considering all relevant factors including the financial resources of both parties, the merits of the case and the actions of the parties during the pendency of the action, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding pursuant to sections 452.300 to 452.415 and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding and after entry of a final judgment.
While section 452.355.1 allows a trial court to award attorney's fees in a dissolution proceeding, it does not require it. In re Marriage of Baker, 986 S.W.2d 950, 958 (Mo.App.1999) (citation omitted). "'The trial court is, of course, an expert on the issue of attorney's fees and may independently determine and award such fees as it deems appropriate.'" Bauer, 38 S.W.3d at 457 (quotingTaylor, 25 S.W.3d at 649). This court will not reverse a trial court's decision as to an award or denial of attorney's fees pursuant to section 452.355, unless we find that the court abused its discretion. Id. (citation omitted). The trial court's decision as to a request for an award of attorney's fees is presumptively correct. Adams v. Adams, 51 S.W.3d 541, 549 (Mo. App. 2001). And, we presume that the trial court
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