Marc Perkel Divorce
Motion for new Trial

It ain't over till the fat lady sings!

My ex-wife likes to play dirty. I'm sure she'll print out my web pages and go trotting into court showing the judge what a stupid asshole I think he is. Well, his decision speak for themselves. I've sent in a complaint against the judge to the Commission on Retirement, Removal, and Discipline and I'm sure that's not going to make him happy either. Anyhow, here's my motion:

MOTION FOR NEW TRIAL
OR IN THE ALTERNATIVE FOR RECONSIDERATION

1. The Court ruled in it's judgement that Computer Tyme, Inc. a corporation duly organized under the laws of the state of Missouri and in good standing since the time of it's inception prior to the marriage of the parties, was a marital asset. It is clear from the cases cited both by Petitioner and Respondent that in order to pierce the corporate veil as the Court is apparently doing, it must be found that the corporation was used as a "subterfuse to defeat public convenience, for the perpetuation of a fraud, or a means to justify a wrong." LYNN VS. LLOYD A.LYNN,INC. 493 SW2d 363, 366 (Mo. App. E. D. 1973), KRAJOVIC VS. KRAJOVIC, 693 2d 884, 886-887 (Mo. App. E. D. 1985, BUTLER VS. BUTLER, 379 SW3d 175, 178 (Mo App. E. D. 1964).

   

2. The Court erred in allowing, over Respondent's objection, the admission of testimony from Petitioner's rebuttal witness offered as an expert when, in fact, he had not been disclosed to Respondent in discovery. It was further error for the Court to allow the testimony of the alleged expert as to issues concerning networking, when according to the expert's own testimony he was not an expert therein and the Court made the comment to the extent that probably he was just being modest.

3. The Court erred in making an award of maintenance in the amount of $1,000.00 per month for twelve months to Petitioner despite her testimony both at trial and at deposition that she was capable of earning an income sufficient to support herself, but chose instead to make a unilateral decision to choose a business direction that provided her more satisfaction, but an inadequate income and pursued said course for a year and a half to two years prior to The judgement of the Court. It was further error for the Court to order maintenance when, in fact, as more fully set out below, the Court awarded to Petitioner in excess of 100% of the marital and non-marital assets of the parties. Section 452.335 RSMo provides the findings and factual basis required for the issuance of a maintenance order. It is stated specifically in 452.335.1 (2), that the Court find the recipient "is unable to support (himself) through appropriate employment."

4. The Court awarded the following property to the Petitioner:

   [Financial Figures indicating a net of $138,000 for her]

   The Court awarded the following property to the Respondent:

   [Financial Figures indicating a net of -$22,000 for Marc]

   The difference is huge and considering the short term nature of the marriage, the admitted ability of the petitioner to earn an income sufficient to support herself, and the fact that no real marital misconduct was alleged or found by the Court, it is not supported in any way in the Court's findings or by the facts at trial. Most disturbing of all is the fact that in evaluating the actual assests, both marital and non-marital, the actual income reported by parties individually and together in their tax returns (but admittedly ignoring the suggested valuation of $750,000.00 which Petitioner places on the copyrights of the software because there is no factual basis to value them independently from the corporation),there is simply no indication that Marc Perkel is capable of either borrowing or coming up with the funds which the Court has ordered Respondent to pay to Petitioner. The testimony at trial showed that when Marc had considerable up-to-date hardware while in the computer retail business and some equity in his home (which is now tied up in the Fair Grove Property loan), he could only borrow $90,000.00 in the form of an SBA loan. There is no possibility that he could borrow $84,500.00 in the form of a non-business signature note. The evidence showed that the earnings which Marc can be expected to earn from Computer Tyme, Inc. are no greater than the value of the services which he will have to render. The $60,000.00 cash payment, $12,000.00 maintenance and $12,500.00 attorney's fees are nothing more that defacto maintenance orders based on Marc's ability to earn a future income, whether it be done through Computer Tyme, Inc. or some other employment, and not a result of the alleged marital contribution of Petitioner to the business of Computer Tyme, Inc..

5. Although the attorney for Respondent has attempted to place values on the property distribution for the purpose of demonstrating the disparity in distribution of assests, the Court made no actual determination of values of the distributed assests and the judgement is therefore defective.

People before Lawyers - The time has come to overhaul the Justice System
The Decision - Read the Judges Decision
Why - My best guesses as to why I got screwed.