Bell v. Bell

• Decision Date: 22 April 2011
• Docket Number: Nos. SD 30208,30222.,s. SD 30208
• Citation: 360 S.W.3d 270
• Parties: In re the Marriage of: Jeneffer Keet BELL, Petitioner–Appellant/Respondent, v. Mark Robert BELL, Respondent–Respondent/Cross–Appellant.
• Court: Missouri Court of Appeals

360 S.W.3d 270

In re the Marriage of: Jeneffer Keet BELL, Petitioner–Appellant/Respondent,

v.Mark Robert BELL, Respondent–Respondent/Cross–Appellant.

Nos. SD 30208

30222.

Missouri Court of Appeals, Southern District, Division Two.

March 31, 2011.Motion for Rehearing or Transfer Denied April 22, 2011.Application for Transfer Denied

June 28, 2011.

John D. Compton, Springfield, MO, for Appellant/Respondent.

Harold F. Glass, Springfield, MO, for Respondent/Cross–Appellant.

Before RAHMEYER, P.J., BATES and FRANCIS, JJ.

PER CURIAM.

Mark Robert Bell and Jeneffer Keet Bell ¹ were married on August 7, 1999. A final judgment of dissolution was entered on November 16, 2009; both parties appeal from that judgment.² All of Jeneffer's points are connected to her complaint that Mark is an actual owner of various accounts and real estate and, thus, the trial court erred in allocating certain accounts and real estate as nonmarital property. Mark, on the other hand, complains that the trial court erred in disallowing him credit for social security disability payments, which Mark's father collected for the benefit of the parties' minor child, and for awarding $20,000 in attorney fees to Jeneffer. It is a serious understatement to say that the trial court was subjected to confusing, conflicting evidence that indicated that the disputed real estate was a ball in a shell game.³ We will set forth the facts as well as we can given the state of available information provided by Mark and Jimmie Bell to the trial court.

Facts

As noted, the parties were married in 1999; at that time, Mark worked full time for his father, Jimmie Bell, at Jimmie's land title company as a salaried employee. Jimmie testified that the last year Mark “had any pay from the title company was '02.” After that, Mark began working with his father buying, renting, and selling real estate. Mark was his own boss, choosing his hours and what work needed to be done. Mark searched for property to be bought, ran comparable sales, and had other general duties to employ carpenters, plumbers, etc., to work on the houses. Jimmie handled all of the accounting and other business aspects. Jimmie said in his deposition: “that if it was on a share-type basis and made money, why he [Mark] shared in the money that I made. And if I didn't make any money, he didn't get any money.” Mark was not paid a salary. In fact, when Jimmie was asked how he compensated Mark and made sure Mark had money to live once he was no longer on the title company's payroll, Jimmie answered, “I gave it to him.” Jimmie further testified that he paid Mark in the neighborhood of $100,000 to $150,000 per year throughout the marriage. The arrangement demonstrated many of the hallmarks of a partnership. The trial court found that Mark worked with his father in the purchase and sale of real estate; however, it further found “the evidence does not support [Jeneffer's] contention that Jimmie Bell and Mark Bell were partners doing business in the name of one or more of the trusts.”

In 1997, three trusts were created by the Bells. First Bell Trust indicates that the grantor was Mark Bell, the trustee was Mark Bell, and the alternate trustee and beneficiary was Jimmie Bell. Second Bell Trust indicates that the grantor and trustee was Jimmie Bell, with Mark Bell being the alternate trustee and beneficiary. Third Bell Trust indicates that both Jimmie and Mark Bell were the grantors and trustees, with no alternate trustee and the survivor being Marilyn Bell, the beneficiary upon death of the grantors. The purpose of First Bell Trust, according to Jimmie Bell, was to hold real estate as collateral in order to obtain financing from Systematic Savings beyond maximum lending limits. Jimmie Bell asked his good friend at Systematic Savings, Charles Goddess, about circumventing the maximum lending limits:

is there some way around this or can you broker it and find me money elsewhere and he said no, but if Mark had a trust or individually or whatever, that I could transfer property to Mark that he could then borrow the maximum. So I transferred enough property to First Bell Trust for Mark to pledge to get the maximum loan again and Mark had to sign the documents as trustee of First Bell Trust and personally guarantee the note—the notes have personal guarantee on them. Then the property was transferred back to Second Bell Trust with the exception of four that for whatever reason did not get on the first deed.

To obtain the loans, Jimmie prepared financial statements for the bank that listed Mark as a one hundred percent owner of certain properties and a fifty percent owner of others.⁴ At trial, Jimmie was questioned about the tax returns and financial statements as follows:

[Jeneffer's Attorney]: Now, these income tax returns are provided to the banks who have leant [sic] you the money to buy these properties; is that correct?

[Jimmie]: That is correct.

[Jeneffer's Attorney]: And you prepare both the income tax returns and the financial statements for Mark Bell to provide the banks to substantiate these loans, don't they—don't you?

[Jimmie]: Yes, sir.

[Jeneffer's Attorney]: Okay. And the banks require, under banking law, true and accurate financial statements don't they?

[Jimmie]: I would think they would want true and accurate.

[Jeneffer's Attorney]: Okay. And you've provided these financial statements that have been previously introduced into evidence as true and accurate financial statements showing ownership of Mark having in property and you having in property?

[Jimmie]: The requirements of the lenders were that the financial statements match the tax return.

[Jeneffer's Attorney]: Are you telling me that it was not a requirement of the banks to have true and accurate financial statements submitted to them?

[Jimmie]: I did not say that. I told you that the banks required that the financial statements match the tax returns.

[Jeneffer's Attorney]: And don't they require true and accurate tax returns?

[Jimmie]: They require a copy of what was filed with Internal Revenue.

[Jeneffer's Attorney]: And are you aware that there are federal banking laws on banking fraud if you submit false documentation to substantiate and maintain loans?

[Jimmie]: I would think so.

[Jeneffer's Attorney]: Okay. So are the—are not the financial statements that you've submitted true and accurate?

[Jimmie]: The financial statements I had submitted were done to match the tax returns that were filed.

[Jeneffer's Attorney]: My question is this: Are they or are they not true and accurate?

[Jimmie]: They match the tax returns.

[Jeneffer's Attorney]: Believe that's a real simple yes or no answer. Do I need to ask the Court to direct you to answer my question?

[Jimmie]: The—the financial statements were done based upon what the lenders required.

[Jeneffer's Attorney]: Let me just ask you this. I'm going to hand you Mark Bell's financial statement, which has been introduced as Exhibit H, for the year ending 31 December '07. Is that a true and accurate statement?

[Jimmie]: It appears to be.

[Jeneffer's Attorney]: Okay. And that was prepared by you—

[Jimmie]: That is—

[Jeneffer's Attorney]:—correct?

[Jimmie]: That is correct.

Additionally, Mark listed the same properties as his assets on his income tax returns. Mark testified that he had seen the returns, but never examined them; he further claimed that Jimmie did all the preparation work on them, and that he (Mark) just signed them. Jimmie also testified that Mark played no role whatsoever in preparing the returns; Jimmie prepared the tax returns and listed ownership of the properties that way. If the properties had not been listed on Mark's return they would have been on Jimmie's. Jimmie further explained that listing some of the properties at one hundred percent and others at fifty percent on Mark's returns “was a misnomer of ownership on the tax return which was referring strictly to the profit that [Jimmie] had intended to divide with Mark or give to Mark. Ownership per se was as to income expenses not titled to the real estate. It was not a—an abstract or a title policy, it was a tax return.” ⁵

Jimmie also stated that when preparing the tax returns he “attempted to allocate enough income and expense from various properties being all of it on some and half of it on some to approximate the money that I was giving [Mark] so that his tax return actually reflected in the general range of what I was giving him, even though it was not W–2 or 1099 money.” At the time of the dissolution, Mark listed debts totaling $1,627,178.07, including a debt to Systematic Savings in the amount of $664,773.75 on certain properties; $248,900 to People's Bank; $437,000 to Old Missouri Bank; $136,475.96 to Marilyn Bell; $3,400 to Harley Davidson Mtr. Credit; $1,499 to Cox Medical Center; $2,400 to Empire Bank; $8,800 to Capital One Bank; $24,835.36 to Discover Card; $19,000 to First Equity Card; $13,587 to U.S. Bank Card; $15,000 to Bank of America; $11,542 to HSBC Card; $1,965 to GE Money Bank; $10,000 to Advanta Bank; $25,000 to Chase Bank; and $3,000 to American Express. The court assigned those debts and the debts on the 89 parcels of real estate in dispute to Mark.

The trial court found: “After the marriage, [Jeneffer] signed nine ‘Assent to Execution of Instruments and Waiver of Interest’ forms and two quit claim deeds with respect to various parcels of real estate that were owned by Bell trusts. The nine assent forms recited that the properties were separate property and not marital property.” Jeneffer Bell signed what was called a “waiver” to more than forty real estate properties. The nine waivers stated that Jeneffer “expressly assent[ed] to any conveyance of real estate made by [her] spouse, Mark Bell, and to the execution of any mortgage or deeds of trust or other instruments by [her] said spouse, Mark Bell, and acknowledge[d] and state[d] that any such conveyances, mortgages, or deeds of trust, are not...