Boschert v. Boschert

• Decision Date: 30 April 2002
• Docket Number: No. ED 79065.,ED 79065.
• Parties: Jan Kaye BOSCHERT, Appellant, v. Thomas Henry BOSCHERT, Husband.
• Court: Missouri Court of Appeals

73 S.W.3d 869

Jan Kaye BOSCHERT, Appellant, v. Thomas Henry BOSCHERT, Husband.

No. ED 79065.

Missouri Court of Appeals, Eastern District, Division Five.

April 30, 2002.

Michael R. Hanson, O'Fallon, MO, for Appellant.

Michael P. Shea, St. Charles, MO, for Respondent.

PAUL J. SIMON, Judge.

Jan K. Boschert, wife, appeals the judgment of the Circuit Court of St. Charles County dissolving her marriage to Thomas H. Boschert, husband. On appeal, wife contends the trial court erred in: 1) awarding $21,259.23 to husband as his marital and nonmarital interest in wife's residence resulting from his expenditures in the finished basement, in that the trial court misapplied the law in that the law of gifts or transmutation of property and not the source of funds rule should apply; 2) determining the values of marital and nonmarital interests of wife and husband in the wife's residential property under the source of funds rule, in that the values found by the trial court are not supported by substantial and competent evidence; 3) calculating the premarital value of the separate property of the wife, the contribution of the husband to said property, the marital interest in said property, and the present value of said property were arbitrary and capricious and constitute an abuse of the trial court's discretion given the evidence at trial; 4) failing to take husband's 1996 tax liability into consideration to offset any interest that he may have had in wife's marital residence; 5) dividing debt in that wife was ordered to pay the home equity loan that was incurred during the marriage for marital expenses, without contribution from husband or set-off against husband's property amounts to an abuse of discretion by the trial court; and 6) failing to change wife's last name to "Harris" in conformity with wife's testimony at trial. We affirm the judgment as modified.

We will affirm the judgment of the trial court 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.1976). We defer to the trial court's determinations of credibility, viewing the evidence and permissible inferences therefrom in the light most favorable to the judgment, disregarding all contrary evidence and inferences. Russ v. Russ, 39 S.W.3d 895, 898 (Mo.App. E.D.2001).

The record reveals that wife and husband were married on December 27, 1996 and resided in wife's house which she purchased on December 30, 1992 for $118,302.57, financing $53,000 of this amount. The house was titled in wife's name and was not re-titled after the marriage. Wife and husband were employed with annual incomes of approximately $32,000 and $57,000, respectively.

Following the marriage, husband received $29,816.48 from the surrender of his two American Fund accounts and a John Hancock Fund account. Husband contributed $29,200 of this amount toward the cost of finishing the basement of wife's house to accommodate his children from a previous marriage when they visited. The parties contributed an additional $5,100 to complete the basement and $3,950 to paint and re-carpet the upstairs. The financial statements filed by each of the parties and received into evidence at trial valued the residence at $152,000. Wife's real estate appraisal dated August 22, 2000 valued the basement improvement at $20,000. The balance due on wife's first mortgage was $51,000 as of the date of the marriage. On November 2, 1997, the parties applied for a home equity loan and received $9,000 initially. In their application for the loan, the parties stated that the value of the house was $125,000. An appraisal completed for the loan indicated the value of the residence was $150,500. At the time of trial, they owed approximately $16,600 on the home equity loan and there was a balance of $48,600 on the first mortgage. The home equity loan was used to pay the 1997 joint taxes totaling $4,500 and the remainder of the loan was to pay for wife's credit cards, her schooling and a trip to Cancun.

Wife contributed $600 and husband $700 monthly to a joint checking account for payment on the first mortgage, utilities and groceries. Husband took a $15,000 loan on his 401-k Retirement Plan in 1997 to pay the parties' 1996 tax liability and their credit card balances and at the time of trial there was a remaining principal balance of $2,400. In January of 2000, wife had a separate indebtedness to MasterCard in the amount of $1,500.

On or about October 1, 1999, the parties separated and on January 26, 2000, wife filed a petition for dissolution of marriage. Commissioner issued findings, recommendations and judgment, which were adopted by the judge. The judgment provided, inter alia, that wife be awarded one-half of the retirement and 401-K benefits accumulated by husband from the date of the party's marriage through the date of the entry of the judgment, the residence was set aside to wife, she was ordered to pay the first mortgage indebtedness and home equity line of credit, she was to remove husband's name from that indebtedness and she was to pay husband $21,259.23 for his nonmarital and marital interest in her house. The trial court utilized the formula in Brooks v. Brooks, 911 S.W.2d 631, 633 (Mo.App. E.D.1995) and Herr v. Herr, 705 S.W.2d 619, 625 (Mo.App. S.D.1986) to determine the parties' marital and nonmarital property under the source of funds rule:

                   Nonmarital property = nonmarital contribution    x equity
                                         -----------------------
                                           total contribution
                   Marital property =     marital contribution      x equity
                                         ----------------------
                                           total contribution
                

Furthermore, wife was ordered to pay MasterCard debt of $1,500 and to hold husband harmless with respect to that indebtedness. Husband was ordered to "pay the loan against the 401-K plan" and hold wife harmless with respect to said indebtedness.

In her first point on appeal, wife contends that the trial court erred in awarding $21,259.23 to husband as his marital and nonmarital interest in wife's house based on his expenditures in the finished basement, in that the trial court misapplied the law in that the law of gifts or transmutation of property and not the source of funds rule should apply. Wife argues that the payment of $29,200 for the...