A court that conducts review for abuse of discretion cannot substitute its judgment for that of the trial court and an appellate court will try to sustain the discretionary decision of a trial court.  A discretionary act under review is presumed to be correct.  Therefore, a ruling by the trial court in an area where it has discretionary power will not be disturbed on review, unless it shows that there was an abuse of such discretionary power.[i]

An abuse of discretion occurs when the decision in question was not based on fact, logic, and reason, but was arbitrary, unreasonable, or unconscionable.  It was also observed that an abuse of discretion occurs where the trial court’s decision was so arbitrary and unreasonable as to shock one’s sense of justice and shows a lack of deliberation.[ii] A trial court is presumed correct where the complaining party fails to show an abuse of discretion.[iii]

It was observed in Workman v. Workman, 293 S.W.3d 89 (Mo. Ct. App. 2009), that it is not per se an abuse of discretion if the trial court awards one party a considerably higher percentage of the marital property than it awarded the other party.  A discretionary rule can be also set aside, if the order resulted from bias, prejudice, or malice.

In an appeal in a case of equity, the entire record is examined, all evidence is weighed, and the trial court’s findings are subjected to a closer scrutiny than that employed in reviewing a jury verdict at law.  An appellate court does not reweigh the evidence presented in the court below.  The findings of fact made in the lower court generally cannot be set aside on appeal unless they are clearly erroneous.

[i] Pinkstaff v. Black & Decker (U.S.), Inc., 211 P.3d 698 (Colo. 2009)

[ii] Workman v. Workman, 293 S.W.3d 89 (Mo. Ct. App. 2009),See also Weissenbach v. Deeken, 291 S.W.3d 361 (Mo. Ct. App. 2009)

[iii] Weissenbach v. Deeken, 291 S.W.3d 361 (Mo. Ct. App. 2009)