Absher v. Absher, s. 61368
| Decision Date | 10 November 1992 |
| Docket Number | 61683,Nos. 61368,s. 61368 |
| Citation | 841 S.W.2d 293 |
| Parties | Mary Victoria ABSHER, Respondent, v. Charles Don ABSHER, Appellant. |
| Court | Missouri Court of Appeals |
J. Michael Ponder, Cape Girardeau, for appellant.
Lenzie L. Leftridge, Jr., Flat River, for respondent.
Husband appeals the dissolution of marriage decree and the trial court's subsequent pendente lite order for Husband to pay $5,000 in attorney's fees for Wife's appeal. We affirm.
Husband and Wife were married on December 8, 1978, in the state of California. Prior to their marriage, Husband had owned a successful furniture manufacturing business, which he had liquidated. Husband estimated his net worth upon marriage was $1.2 million. In the early years of marriage, Husband and Wife resided in California. In June 1979, Husband and Wife purchased a farm consisting of 153 acres in Perry County, Missouri. The farm was jointly titled in both Husband's name and Wife's name. They subsequently built a house on the land. At trial, Husband and Wife stipulated the house and farm were valued at $500,000. In 1980, Husband and Wife purchased another farm of 41.80 acres and in 1983 they purchased a farm of 119 acres. Each of these properties was jointly titled in both Husband's name and Wife's name. The parties stipulated at trial the 41.80-acre farm was worth $33,400 and the 119-acre farm was worth $83,300. Husband operated a business, Missouri Allco, Inc., which involved the ownership and leasing of two farms not in issue in this case. Husband and Wife opened a business together in 1989 called "The Billiard Club," a bar and poolroom.
On March 20, 1991, Wife filed a petition for dissolution in the Circuit Court of Perry County. On December 9, 1991, the trial court entered its decree of dissolution. The trial court determined Wife had separate property of books and paintings valued at $500. The trial court also determined Husband had the following separate property:
(1) Missouri Allco, Inc. $390,595.77
(2) Woodworking Tools 1,500.00
(3) Account # 260908 1,175.00
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TOTAL: $393,271.65
The court concluded the following were marital assets of Husband and Wife:
(1) Home and farm $ 500,000.00
(2) 119 acre farm 83,300.00
(3) 41.8 acre farm 33,440.00
(4) Personal property 39,670.00
(5) Farm equipment 1,700.00
(6) Promissory Notes 259,419.72
(7) CD # 9918 120,000.00
(8) "The Billiard Club" 42,608.11
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TOTAL: $1,079,837.83
Except for Wife's personal items and some furniture, the trial court awarded Husband all of the marital assets. However, the court ordered Husband to pay Wife $250,000 as her share of the marital estate.
Husband appealed the division of the marital property. Wife filed a Motion for Attorney's Fees and Costs Pending Appeal on January 24, 1992. On February 5, 1992, the cause was brought for hearing and the trial court awarded Wife $5,000 for attorney's fees pendente lite. Husband also appealed that order. Husband's appeals were consolidated.
Husband first alleges the trial court erred in determining the marital home and 153-acre farm, the 119-acre farm, and the 41.8-acre farm were marital property. Husband argues that because he brought a substantial amount of money into the marriage and never intended any purchases made by Husband and Wife during the marriage to be marital property, the property in question cannot be marital property.
A trial court possesses broad discretion in identifying marital property. Rapp v. Rapp, 789 S.W.2d 148, 150 (Mo.App.1990). Section 452.330.3, RSMo Supp.1991, provides any property acquired subsequent to the marriage and prior to legal separation or dissolution is presumed marital property. This presumption may be rebutted by clear and convincing evidence the property falls within one of the five exceptions listed in § 452.330.2. Rapp, 789 S.W.2d at 150. Husband proffers the properties are not marital property because they are properties "acquired in exchange for property acquired prior to the marriage" as set out in § 452.330.2(2). Husband had to prove by clear and convincing evidence "there was no intent to make a provision for, a settlement in favor of, or a gift to the other spouse." Willyard v. Willyard, 719 S.W.2d 91, 93 (Mo.App.1986).
Husband failed to meet his burden of proof to rebut the presumption. Husband presented no evidence the sole source of funds used to purchase the properties was entirely from funds he had acquired before the marriage or any other separate property. Husband did testify he never intended the properties in question to become marital property. Yet, that evidence...
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