Alport v. Alport

Decision Date09 April 2019
Docket NumberWD 81421
Parties Rebecca ALPORT, Respondent, v. Jeffrey ALPORT, Appellant.
CourtMissouri Court of Appeals

Allen S. Russell, Kansas City, MO, for respondent.

Mary Ann Drape, Kansas City, MO, for appellant.

Before Division Two: Edward R. Ardini, Jr., Presiding Judge, Alok Ahuja, Judge and Gary D. Witt, Judge

Gary D. Witt, Judge

Jeffrey Alport ("Jeffrey")1 appeals from the judgment dissolving his marriage to Rebecca Alport ("Rebecca"). Jeffrey argues that the trial court erred in not including the legal descriptions for the real estate it divided and did not first award each of the parties their nonmarital property prior to dividing the marital property. Jeffrey further argues that the trial court erred in awarding wife certain property located in Florida and three of the couple's multiple vehicles because these were his nonmarital property. The judgment is affirmed.

Statement of Facts

Jeffrey and Rebecca were married on December 24, 2009, and separated on or about June 1, 2016. The parties had no children. Rebecca filed for a dissolution of marriage February 9, 2017. A bench trial was held August 24, 2017.

The trial court declined to award maintenance to Rebecca. As relevant to this appeal, Rebecca was awarded real property described in the judgment as "Residence located at 815 115th Avenue, Treasure Island, FL" ("Florida Property") and all the contents. Rebecca was also awarded a 1968 Chevrolet Camaro, 1985 Cadillac, 1996 Mercedes 500 SL, GMC Solstice, Lincoln MKX, and a Harley-Davidson Sportster. Jeffrey was awarded the remainder of the vehicles and four pieces of real property in the Kansas City area.

This appeal followed.

Standard of Review
Appellate review of a dissolution judgment is under the standard of Murphy v. Carron , 536 S.W.3d 30, 32 (Mo. banc 1976). Jenkins v. Jenkins , 368 S.W.3d 363, 366 (Mo. App. W.D. 2012). We will affirm the circuit court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 366-67. The party challenging the dissolution judgment has the burden of demonstrating error. Shaw v. Shaw , 413 S.W.3d 332,334 (Mo. App. W.D. 2013). We view the evidence and any reasonable inferences therefrom in the light most favorable to the court's decision and disregard all contrary evidence and inferences. Id. We recognize that the circuit court was "free to believe or disbelieve all, part, or none of the testimony of any witness." Id. (citation omitted).

Schutter v. Seibold , 540 S.W.3d 494, 499 (Mo. App. W.D. 2018).

Analysis

Jeffrey raises four points on appeal. In his first point on appeal, Jeffrey argues that the trial court erred in not including the legal descriptions for the real estate in its judgment. In his second point on appeal, Jeffrey argues that the trial court erred in not distinguishing between marital property and nonmarital property in its judgment. In his third point on appeal, Jeffrey argues that the trial court erred in awarding the Florida Property to Rebecca as he owned the property prior to the marriage. In his fourth point on appeal, Jeffrey argues that the trial court erred in awarding Rebecca the 1967 Chevrolet Camaro, 1985 Cadillac Seville, and 1996 Mercedes 500 SL as they were also his premarital property.

Point One

In his first point on appeal Jeffrey argues that the trial court erred in not including the legal descriptions for the real estate divided between the parties. In the dissolution decree, the court described the real properties as: "815 115th Avenue, Treasure Island, FL; 2104 W. 125th Street, Leawood, KS; 13129 Birch, Overland Park, KS; 8605 Belleview, Kansas City, MO; The vacant lot in Shawnee, KS." Rebecca concedes that the trial court should have included the legal description of real property awarded in a dissolution in the Judgment.

The Eastern District of this Court has held that a full legal description of any real estate awarded must be contained in the dissolution judgment and failure to do so merits reversal under plain error review. Roche v. Roche , 289 S.W.3d 747, 758 (Mo. App. E.D. 2009). However, the court in Roche merely quotes and relies on earlier cases without analyzing the history and reasoning of those holdings. The court in Roche relied on a line of cases that can be traced back to this Court's holding in Fields v. Fields , 584 S.W.2d 163 (Mo. App. W.D. 1979).2 This Court in Fields relied on the Dissolution of Marriage Act of 1973 containing section 452.3303 which was in effect at the time of the decision. The 1974 version of section 452.330.5 provided that "[a] certified copy of any decree of court affecting title to real estate shall forthwith be filed for record in the office of the recorder of deeds of the county and state in which the real estate is situate by the clerk of the court in which the decree was made, and the filing fees shall be taxed as costs in the cause." (emphasis added). When every judgment effecting real estate was required to be recorded, it was paramount that the proper legal descriptions be included. However, section 452.330.6 was subsequently amended and now provides that "[a] certified copy of any decree of court affecting title to real estate may be filed for record in the office of the recorder of deeds of the county and state in which the real estate is situated ..." (emphasis added). Section 452.330 no longer requires that a decree effecting real estate be filed with the office of the recorder of deeds by the clerk of the court.

Under the current dissolution statutes, "our Supreme Court has held that Section 452.330.1's division of marital property and debts may be accomplished with respect to real estate either by including language in a decree sufficient to convey title without further action by the parties, or by ordering spouses to execute deeds of conveyance subject to enforcement by a ‘supplemental order decreeing the transfer of title or ... by contempt.’ " Parciak v. Parciak , 553 S.W.3d 446, 457 (Mo. App. E.D. 2018) (citation omitted). In this case, the circuit court plainly did not intend the dissolution decree itself to effect the conveyance of the properties, since it ordered that "the parties shall each sign any necessary documents and take any necessary action to comply with the provisions of this judgment and/or to transfer title to any of the property awarded herein." The necessity of plain-error review is diminished in this case, where the dissolution decree was not itself intended to serve as a real-estate conveyance document. Plain error review was justified where the omission of the legal description from the judgment would impact the chain of title because the judgment was always recorded. However, this consideration is no longer an issue as divorce decrees are no longer required to be filed with the office of the recorder of deeds by the clerk of the court. Therefore, since the proposition of law promulgated by Roche regarding plain error review relies on a version of section 452.330 no longer in effect, it should no longer be followed.4 Certainly if the parties wish to record the dissolution judgment, they may do so but it is now the obligation of the parties to provide the court with the legal description for all real estate effected. If the trial court fails to include the legal description in its judgment it is up to the parties to follow the dictates of Rule 78.07(c)5 , which was adopted after our ruling in Fields .

"In all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review." Rule 78.07(c). Jeffrey did not file a post-trial motion to amend the motion court's judgment to allow the trial court to address any shortfall in its findings prior to raising the issue before us.

Further, a review of the entire record on appeal reveals no legal descriptions for any of the real properties in question. Neither party bothered to file the exhibits with this Court which were offered and received at trial for us to determine if the trial court even had the ability to include the legal descriptions of the real property in its judgment or if the parties wholly failed to place them in evidence before the trial court. Certainly the trial court has no duty to do its own investigation in order to obtain legal descriptions of the parties' real property, particularly when several of the properties are located in foreign states. In fact for a judge to do so would remove the trial court from its role as neutral arbitrator and make the judge an advocate for the parties. The trial court even provided each party with the opportunity to provide the court with a proposed judgment prior to the entry of the judgment below. The parties likewise failed to file those proposed judgments with this Court for us to determine if either party included the legal descriptions to the trial court in the proposed judgments.

It is further clear from the record that both parties knew exactly which real properties were intended to be awarded to each party by the trial court's judgment, as the parties themselves referred to each of the properties in a similar manner during their testimony before the trial court and in their briefs before this Court. It is perplexing to this Court why the parties insist on going through the time, trouble and expense of this appeal, when this particular problem is easily solved by the parties' execution of proper quit claim deeds for each of the real properties without the need for any intervention by any court.

For all the reasons above, Point One is denied.

Point Two

In his second point on appeal, Jeffrey argues that the trial court erred in not first setting aside the nonmarital property to each party before dividing the marital property. Jeffrey argues that the trial court's...

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3 cases
  • Reichard v. Reichard
    • United States
    • Missouri Court of Appeals
    • November 16, 2021
    ...property; and (2) then divide the marital property and debts in such proportions as the court deems just." Alport v. Alport , 571 S.W.3d 680, 685 (Mo. App. W.D. 2019) (quoting In re Marriage of Michel , 142 S.W.3d 912, 920 (Mo. App. S.D. 2004) ). Section 452.330 also "requires that ‘marital......
  • Morgan v. Morgan (In re Morgan)
    • United States
    • Missouri Court of Appeals
    • May 4, 2021
    ...has been abandoned and reversal is not required." Stroh v. Stroh , 454 S.W.3d 351, 363 (Mo. App. S.D. 2014). Alport v. Alport , 571 S.W.3d 680, 686-87 (Mo. App. W.D. 2019). As Wife correctly points out in her brief, the trial court did not classify half of Husband's shares in Kidi as marita......
  • Blanchard v. Blanchard (In re Blanchard)
    • United States
    • Missouri Court of Appeals
    • December 4, 2020
    ...that point (as well as her Point II) by failing to allege requisite prejudice in the points themselves. See Alport v. Alport , 571 S.W.3d 680, 686–87 (Mo. App. W.D. 2019) ("Absent a contention in the point relied on that the erroneous classification resulted in an unfair overall division of......

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