In the 

Missouri Court of Appeals 

Western District

PAUL FREGEAU,

Appellant,

v.

CAROL FREGEAU,

Respondent.

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WD81731

OPINION FILED: June 28, 2019

Appeal from the Circuit Court of Cass County, Missouri

The Honorable R. Michael Wagner, Judge

Before Division Two: Thomas N. Chapman, Presiding Judge, Mark D. Pfeiffer, Judge 

and Cynthia L. Martin, Judge

Paul Fregeau ("Husband") appeals from the trial court's judgment that dissolved his 

marriage to Carol Fregeau ("Wife") and that, in dividing marital property and marital debt, 

ordered Husband to pay a cash equalization payment of $150,000 to Wife. Husband argues

that the equalization payment represented half of the value of his teacher retirement 

account, non-marital property that was not subject to division. Because the judgment failed 

to distribute all property and debt identified in the evidence, the judgment is not final, 

requiring dismissal of this appeal. 
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Factual and Procedural History1

Husband and Wife married in April 1986. During the marriage, they had two 

children, both of whom are emancipated. Husband and Wife separated in February 2016. 

Husband filed a petition for dissolution of marriage which asked the trial court to divide 

marital property and debts, and to order that no maintenance be paid to either party. Wife 

filed an answer and counter-petition for dissolution of marriage, asking the trial court to 

divide marital property and debts, and to award Wife maintenance. 

During a bench trial in September 2017, Husband and Wife testified, and submitted 

their respective income and expense statements. Husband submitted a statement of marital 

and non-marital property and debts. In addition, the parties submitted a collective 

statement prepared at the court's direction which reflected each parties' position about 

whether identified property or debt was marital or non-marital. 

Husband testified that he was working as the superintendent of schools in Decatur, 

Illinois, and had previously worked as an assistant superintendent in the North Kansas City 

school district. Husband's income and expense statement indicated that his gross monthly 

income was $16,416, and that his average monthly expenses were $8,975. 

Wife testified that, at the time of trial, she worked for Sioux Chief, earning $12.82 

per hour. Wife testified that she had previously worked as a dental hygienist but quit that 

job in 2014 or 2015. Wife explained that the industry had changed and the job became too 

stressful for her. In 2013, Wife earned approximately $66,000 as a dental hygienist. Wife's 

 

1We view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the trial 

court's judgment, and we disregard all contrary evidence and inferences. Archdekin v. Archdekin, 562 S.W.3d 298, 

304 (Mo. banc 2018). 
3

income and expense statement provided that, at the time of trial, her total monthly gross 

income was $1,243.70, and her average monthly expenses were $1,634.52. 

The evidence identified the following property for which the status as marital or 

non-marital needed to be determined, and the property thereafter distributed: (1) a home in 

Decatur that had $2,000 in equity; (2) a 2015 Jeep Cherokee in Husband's possession whose 

value was approximately the amount owed on the vehicle; (3) a checking account in 

Husband's name worth approximately $4,000; (5) a savings account in Husband's name 

worth approximately $5,000; (6) a whole life insurance policy in Wife's name that had a 

cash value of $16,735; (7) a basic life insurance policy with no cash value; (8) a 2007 

Pontiac in Wife's possession with a value of $3,500; (9) a 2012 Harley Davidson 

motorcycle in Wife's possession whose value was approximately the amount owed on the 

motorcycle; (10) a 1999 Jeep Cherokee in the possession of one of the parties' sons; (11) 

Wife's Sioux Chief retirement account worth approximately $1,000; and (12) Husband's

retirement account with the Public School Retirement System of Missouri ("PSRS") with 

an approximate value of $298,747. Husband testified that, if he chose to do so, he would 

be entitled to receive $5,000 per month from his PSRS retirement account, beginning in 

December 2017. 

The evidence identified the following debts for which the status as marital or nonmarital needed to be determined, and the debt thereafter assigned: (1) $250,000 mortgage 

on the home in Decatur; (2) $35,000 loan on the 2015 Jeep Cherokee; (3) $70,470 in student 

loans used for the education of Husband and the two children; (4) $20,150 on a debt 

consolidation loan; (5) $13,000 on a home improvement loan; (6) $1,800 for the purchase 
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of furniture for the home in Decatur; (7) $22,000 in credit card debt; and (8) $5,000 loan 

on the 2012 Harley Davidson. 

Husband asked the trial court to award the parties their separate vehicles and homes, 

to assign Husband all of the marital debt, to award Husband the life insurance policy, and 

to deny Wife's claim for maintenance. Husband asked the court to award him the PSRS 

account as non-marital property not subject to division under Missouri law. Husband 

further requested that if the court awarded maintenance to Wife, the award should be 

minimal and that Wife should be ordered to pay half of the marital debt. 

Wife testified that if the trial court divided the property as Husband requested, she 

would not have enough money to maintain a reasonable lifestyle, and that she was entitled 

to maintenance. Wife acknowledged, however, that she would be able to support herself 

if she earned $32 per hour, the amount Wife earned when she quit working as a dental 

hygienist. Wife argued that even though Husband's PSRS retirement account was nonmarital property that could not be divided under Missouri law, a fair and equitable division 

of the marital assets required the trial court to consider the value of the PSRS retirement 

account.

The trial court orally announced its findings and conclusions from the bench, and 

instructed the attorneys to prepare a proposed written judgment. The trial court orally 

announced that the evidence failed to establish that either party was entitled to maintenance 

from the other. The trial court orally announced its intent: (i) to award both parties the 

property currently in their possession; (ii) to award Husband the 2015 Jeep Cherokee, the 

1999 Jeep Cherokee, and the home in Decatur after finding all were marital property; (iii) 
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to award Wife the 2007 Pontiac, the whole life insurance policy, and the Sioux Chief 

retirement account after finding all were marital property; and (iv) to assign all debts to 

Husband with the exception of the loan for the Harley Davidson, which the trial court 

assigned to Wife. With respect to Husband's PSRS retirement account, the trial court orally 

announced: 

[W]e have a problem with equalization of property here. Wife did contribute 

in the marriage and it is not--it is not equitable the way it is. I don't think--

the court has found that Wife doesn't qualify for maintenance under the 

statute, however, we do have a situation where Husband has a significant 

income and more is coming that way. [The court cannot divide the PSRS 

retirement account], but I think it is appropriate to give Wife a judgment in 

the amount of $150,000 to equalize the property. 

The trial court rejected Husband's contention that it was improperly relying on the value of 

the PSRS retirement account to materially affect the division of marital property. 

The trial court entered a written judgment on February 21, 2018. The judgment 

dissolved the parties' marriage, divided marital property and debts, and denied Wife's 

request for maintenance. The judgment awarded both parties "[a]ll personal property 

including any household furniture and furnishings, all clothing and jewelry" of which each 

currently had in their possession; awarded Husband the Decatur home, the 2015 Jeep 

Cherokee, any life insurance policies maintained by him or on behalf of his employer, and 

the checking and savings accounts in Husband's name; awarded Wife the 2007 Pontiac, 

any life insurance policies maintained by her or on behalf of her employer, and the whole 

life insurance policy valued at approximately $16,735; awarded a cash equalization 

payment of $150,000 to be paid by Husband to Wife; and itemized marital debts which 

were all assigned to Husband, though the itemization did not include the loan for the Harley 
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Davidson. The judgment expressly found that Husband's PSRS retirement account was 

Husband's non-marital property. The judgment did not specifically address the 1999 Jeep 

Cherokee, Wife's Sioux Chief retirement account, the 2012 Harley Davidson, or the $5,000 

loan against the Harley Davidson, though said items were addressed in the court's oral 

pronouncement from the bench at the time of trial. 

Husband filed a motion and suggestions to modify the judgment ("motion to 

modify") which argued that the trial court's division of property and debts was "unfair, 

unjust, and unconscionable" because it awarded 99 percent of the marital property to Wife 

and 1 percent of the marital property to Husband while also ordering Husband to pay 100 

percent of the marital debt. The motion to modify further argued that, in ordering a

$150,000 equalization payment, the trial court effectively awarded Wife one-half of the 

Husband's PSRS retirement account, despite its status as non-marital property not subject 

to division between spouses under Missouri law. Wife opposed Husband's motion to 

modify and requested that the trial court award her attorney fees. Neither party advised the 

trial court of the judgment's failure to address all of the property and debt identified in the 

evidence. 

The trial court denied Husband's motion to modify and Wife's request for attorney 

fees. Husband appeals. 

Analysis

Husband argues that the trial court's award of an equalization payment had the effect 

of erroneously classifying his PSRS retirement account as marital property subject to 

division between spouses. Husband also argues that the equalization payment erroneously
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considered the value of the non-marital PSRS retirement account in a manner that 

materially impacted the overall division of marital property. We are unable to reach the 

merits of Husband's appeal. 

We are required to examine, sua sponte, whether the trial court's judgment was final, 

as in the absence of a final judgment, we do not have jurisdiction to entertain this appeal. 

Boone v. Boone, 438 S.W.3d 494, 497 (Mo. App. W.D. 2014). While a petition for 

dissolution advances a single claim, there are multiple issues within that claim, including 

property division, child custody and support, and maintenance. Archdekin v. Archdekin, 

562 S.W.3d 298, 305 (Mo. banc 2018). Section 452.330.12requires the trial court in a 

dissolution proceeding to "set apart to each spouse such spouse's nonmarital property and 

[to] divide the marital property and marital debts in such proportions as the court deems 

just." Thus, to be a final judgment, a dissolution judgment must distribute all of the 

spouses' property. Archdekin, 562 S.W.3d at 305. 

The evidence established that the 1999 Jeep Cherokee, Wife's Sioux Chief 

retirement account, the 2012 Harley Davidson motorcycle, and the $5,000 loan against the 

Harley Davidson motorcycle, were items the court was required to distribute. We 

considered whether a similar omission rendered a dissolution judgment not final in Boone 

v. Boone. There, despite hearing evidence regarding the husband's pension and making 

conclusions and distributing similar retirement accounts, the trial court's judgment made 

no reference to the pension. 438 S.W.3d at 495. The wife argued on appeal that, by failing 

 

2All statutory references are to RSMo 2016 unless otherwise indicated. 
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to distribute the husband's pension, the trial court retained jurisdiction over the case and 

that the appeal must be dismissed for want of a final judgment. Id. The husband disagreed, 

arguing that his pension account was encompassed within the judgment's conclusion that 

"each party shall have the exclusive ownership and sole possession of all personal property 

currently in his or her possession" so that the judgment was final. Id. at 495-96. We 

rejected the husband's argument, concluding that husband's pension was not "personal 

property" that could be fairly viewed as having been distributed by a catchall provision in 

the judgment. Id. at 496. We recognized that, even though the wife failed to raise the 

omitted property as an issue in her post-trial motion to amend the judgment, "we [could 

not] confer [appellate] jurisdiction on this court where none exists" because "'appellate 

jurisdiction cannot be conferred by waiver, acquiescence, or even express consent.'" Id. at 

496-97 (quoting Ruestman v. Ruestman, 111 S.W.3d 464, 477 (Mo. App. S.D. 2003)). 

Thus, we dismissed the appeal. Id. at 497. 

We are compelled to reach the same result here. Though the judgment awarded 

"[a]ll personal property including any household furniture and furnishing, all clothing and 

jewelry" in the parties' possession to each party, this catchall provision is insufficient to 

address the Sioux Chief retirement account according to Boone. This catchall provision

also fails to address the debt owed against the Harley Davidson, or the 1999 Jeep Cherokee

which, though personal property, was not in either parties' possession based on the

evidence, and was the subject of disagreement with respect to its status as marital or nonmarital property. Though the catchall provision could arguably be construed to cover the 

2012 Harley Davidson, personal property established by the evidence to be in Wife's 
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possession, it nonetheless remains that the judgment failed to address all of the property 

and debt identified in the evidence.

The written judgment's deficiency in this regard cannot be cured by the trial court's 

oral pronouncements from the bench. "[T]he general rule [is] that 'oral comments should 

not be considered where [as in this case] findings of fact and conclusions of law have not 

been requested but are gratuitously provided by the trial court.'" Scholz v. Schenk, 489 

S.W.3d 306, 311 (Mo. App. W.D. 2016) (quoting Harvey v. Dir. of Revenue, 371 S.W.3d 

824, 827 (Mo. App. W.D. 2012)). There is some authority for the proposition that an 

appellate court may look to contemporaneous oral statements of a judge to "'throw light 

upon the view the court took of [a] case during its progress and at the time of its 

[judgment],'" especially where a judgment is "'ambiguous, uncertain, or incomplete.'" 

Navarro v. Navarro, 504 S.W.3d 167, 173 (Mo. App. W.D. 2016) (quoting Scholz, 489 

S.W.3d at 312). However, that authority does not extend to supplying a written dissolution 

judgment with unexpressed provisions required to satisfy the trial court's obligation under

section 452.330.1 to "set apart to each spouse such spouse's nonmarital property and [to] 

divide the marital property and marital debts in such proportions as the court deems just." 

Stated another way, a written dissolution judgment which fails to distribute all property or 

debt identified in the evidence is not final for purposes of appeal, and cannot be made so

by resort to oral statements made by the judge at trial. 

Because the judgment is not final, we do not have jurisdiction to consider Husband's 

appeal. We recognize that dismissal of this appeal results in judicial inefficiency. 

However, the parties were expressly asked to prepare a proposed written judgment for the 
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trial court to consider, and were well-positioned to ensure that the judgment divided all of 

the property and debt identified by their evidence. The trial court cannot be faulted for the 

parties' failure to bring the judgment's deficiencies in this regard to the trial court's 

attention. Thus, regardless the unfortunate resulting inefficiency, we have no authority to 

confer appellate jurisdiction on ourselves where none exists. We dismiss Husband's appeal 

and remand this matter to the trial court for the entry of a judgment that satisfies section 

452.330.1 with respect to all of the property and debt identified in the evidence. Because 

the judgment entered in this case is not final, the trial court's authority on remand is not 

limited to modifying the existing interlocutory judgment to address all of the property and 

debt identified in the evidence.3

Conclusion

The appeal is dismissed for lack of a final judgment. This case is remanded to the 

trial court with instructions to enter a judgment addressing all of the parties' marital and 

non-marital property and debts. 

__________________________________

Cynthia L. Martin, Judge

All concur

 

3On remand, the trial court should carefully reconsider its award of a $150,000 equalization payment to 

Wife. The interlocutory judgment entered by the trial court in this case is nearly impossible to distinguish from the 

judgment deemed to be an abuse of discretion in In re Marriage of Reese, 155 S.W.3d 862 (Mo. App. S.D. 2005), 

where the trial court ordered a "credit" in husband's favor from the proceeds of the sale of marital property in an 

amount that approximated one-half of wife's non-marital teacher retirement account.