Engeman v. Engeman

• Citation: 123 S.W.3d 227
• Decision Date: 28 October 2003
• Docket Number: No. WD 61981.,No. WD 62109.,WD 61981.,WD 62109.
• Parties: Barbara J. ENGEMAN, Respondent, v. John M. ENGEMAN and Vincent A. Engeman, Appellants.
• Court: Court of Appeal of Missouri (US)

123 S.W.3d 227

Barbara J. ENGEMAN, Respondent, v. John M. ENGEMAN and Vincent A. Engeman, Appellants.

No. WD 61981.

No. WD 62109.

Missouri Court of Appeals, Western District.

October 28, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 23, 2003.

Application for Transfer Denied January 27, 2004.

Neysa L. Day, Kansas City, for appellant.

Patrick William Campbell, Independence, for respondent.

RONALD R. HOLLIGER, Judge.

John M. Engeman ("Husband") and Vincent Engeman, his father, appeal the judgment and decree of dissolution entered by the Circuit Court of Jackson County raising seven allegations of error, six of which present preserved issues for this court's review. Vincent Engeman ("Father") was joined as a party because real estate was titled jointly with Husband and Father and because Wife claimed that Husband and Father were partners in a business. First, Husband and Father contend that the trial court erred in finding that five parcels of jointly titled property were fifty percent marital property. Second, Husband and Father argue that the trial court erred in holding that half of Husband's interest in a former partnership with Father was marital and that Husband had squandered that interest. Third, Husband takes the position that the trial court classified too great a percentage of one of his annuity accounts as marital property. Fourth, Husband argues that the Form 14 adopted by the trial court erroneously failed to impute income to Wife, improperly included costs of private schooling for one of the parties' children, and imputed income to Husband despite evidence of his inability to work due to disability. Fifth, Husband argues that the trial court abused its discretion in ordering him to pay all of Wife's attorney fees without first taking into consideration the parties' financial condition and their ability to pay those fees. Sixth, Husband contends that the judgment should be reversed because it erroneously denoted certain monetary awards to Wife as being non-dischargeable in bankruptcy.

After a review of each of the above points on appeal, we conclude that the judgment is not against the weight of the evidence, is supported by substantial evidence, and does not constitute an abuse of discretion. We, therefore, affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND¹

Husband and Barbara J. Engeman (Wife) were married on November 10, 1984. On June 20, 1999, Wife filed her petition for dissolution of marriage. While the case was pending, Husband's father, Vincent A. Engeman, was joined in the action as a third-party respondent. Father was Husband's partner² in J.V. Sales, an auto-parts business, and appeared as a co-owner of a number of parcels of real estate. As there were questions raised regarding the value of Husband's share of the partnership and whether that interest and the real estate (or some portion thereof) were marital property, Father was made a party to the case.

The matter proceeded to trial on March 20, 2002, with evidence being heard over a number of days through the subsequent months, with the case being taken under advisement on June 25, 2002. The trial court entered its judgment and decree of dissolution on August 30, 2002.³

The trial court awarded the parties joint legal and physical custody of the two children to but ordered that the children reside with Wife, based upon the statutory factors set out in § 452.375, RSMo 2000. Husband does not challenge the trial court's custody determinations. Husband was ordered to pay child support to Wife in the amount of $505 per month. The trial court also entered judgment against Husband in the amount of $3,992.42, due to arrearages under a prior order of temporary child support.

In addition to the parties' miscellaneous personal property and the marital residence (the division of which is not contested by any party), the trial court made specific findings with regard to a number of items of real and personal property. The trial court also found that Husband had squandered a number of bank accounts, totaling $18,318.45, and ordered Husband to reimburse Wife for half of that value.

The trial court also found that Husband was a partner with Father in J.V. Sales and owned a fifty-percent interest in the partnership, which he squandered by voluntarily surrendering his interest on December 31, 1999. The trial court found that the partnership had assets in the amount of $48,732.34 and granted Wife judgment against Husband in the amount of $12,183.09, half of Husband's fifty-percent interest in the partnership.

Five parcels of real estate were also addressed in the judgment. These five parcels were purchased during the marriage by Father and titled in the names of Husband and Father, as either tenants in common or joint tenants with the right of survivorship. Husband testified that he was not aware that he was on the titles to those properties. Father testified, in an attempt to rebut the presumption that the real property was marital property, that Husband's name was added to the titles as a gift and for estate planning purposes. Wife contended that those properties were not gifts to Husband but were instead partnership property, purchased from an account in which partnership funds were commingled or that the properties were given to them as a couple. The trial court found that the statutory presumption that the property was marital had not been rebutted by clear and convincing evidence. It entered judgment against Husband in the amount of $31,500, for Wife's share of the marital property of the real estate held jointly by Husband and Father.

DISCUSSION

As with other court-tried cases, we review dissolution judgments under the standard provided by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm unless we determine that the trial court's judgment is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously states or applies the law. See Hoffmann v. Hoffmann, 676 S.W.2d 817, 822 (Mo. banc 1984).

In regard to challenges that the trial court's judgment is not supported by substantial evidence, we view the evidence in the light most favorable to the judgment and accept all reasonable inferences from the evidence which support the judgment. Alongi v. Alongi, 72 S.W.3d 592, 594 (Mo. App.2002). We must disregard all contrary evidence and inferences. Id. When a party contends that the judgment is against the weight of the evidence, we will only reverse if we are firmly convinced that the judgment is wrong. In re Marriage of Dieterle, 960 S.W.2d 556, 557 (Mo. App.1998).

Martial Interest in Real Estate Held by Husband and his Father

In their first point on appeal, Husband and Father appeal the trial court's determination that five parcels of real property titled in both Husband and Father's names was fifty percent marital in nature. They contend that the trial court's finding was not supported by substantial evidence and was against the weight of the evidence. Specifically, they claim that those assets were gifts from Father to Husband, purchased with Father's own funds, with the intent that they would serve as an estate planning measure.

Section 452.330.3, RSMo, states that all property acquired by a spouse after marriage and prior to a decree of separation or dissolution is presumed to be marital property. Comninellis v. Comninellis, 99 S.W.3d 502, 507 (Mo.App.2003). That presumption can only be overcome by proving, by clear and convincing evidence, that the property falls within an exception to that presumption. Summerville v. Summerville, 869 S.W.2d 79, 85 (Mo.App. 1993) (overruled in part on other grounds by Schriner v. Edwards, 69 S.W.3d 89,93 (Mo.App.2002)). "Clear and convincing evidence is evidence that `instantly tilts the scales in the affirmative when weighed against the evidence in opposition and the fact finder's mind is left with an abiding conviction that the evidence is true.'" Randolph v. Randolph, 8 S.W.3d 160, 168 (Mo.App.1999) (quoting In re Marriage of A.S.A., 931 S.W.2d 218, 222 (Mo.App. 1996)).

Five exceptions are enumerated in Section 452.330.3, although the list is not exclusive. § 452.330.2, RSMo; Silcox v. Silcox, 6 S.W.3d 899, 903 (Mo. banc 1999). The exception that Husband and Father sought to rely upon, here, is one of the statutory exceptions. Specifically, they contend that the real property in question is not marital property because Husband received it as a gift from his Father. As the party seeking to invoke an exception to the statutory presumption, they bear the burden of showing clear and convincing evidence that the real property was a gift.⁴ Boschert v. Boschert, 73 S.W.3d 869, 873 (Mo.App.2002).

The five parcels of land were: (1) a parcel of farmland in Henry County purchased from Carl and Theresa Bettels; (2) an adjoining parcel of land in Henry County purchased from Chris Sickman; (3) Lot ten in block 21 in Appleton City, purchased from the trustees of American Legion Post # 205; (4) Lots eleven and twelve in Appleton City, purchased from Ronald and Barbara Smith; and (5) a portion of Lots fifteen and sixteen in block six in Montrose purchased from Ivan and Nadine Hergesheimer. The Smith, Sickman, and American Legion properties were titled in the names of Husband and Father as joint tenants with right of survivorship. The Hergesheimer and Bettels parcels were titled in Husband and Father's names as tenants in common.

Father testified that he placed Husband's name on those properties solely as an estate planning mechanism. The trial court expressly found that testimony to be not credible. "When characterizations of property as marital or separate rest on an assessment of witness credibility, this court defers to the trial court's determination of that credibility." Beckham v. Beckham, 41 S.W.3d 908, 911-12 (Mo.App.2001). Husband and Father attempt to discount that credibility finding...