Brady v. Brady

Decision Date20 March 2001
Parties(Mo.App. E.D. 2001) Lois Anne Brady, Petitioner-Respondent, v. Dennis John Brady, Respondent-Appellant. ED77293, ED77883 and ED77960 0
CourtMissouri Court of Appeals

Appeal From: Circuit Court of St. Louis County, Hon. Michael Burton

Counsel for Appellant: Deborah J. Tomich and Jane E. Tomich

Counsel for Respondent: Michael C. Walther and Michael A. Gross

Opinion Summary: Husband, Dennis John Brady, appeals the judgment and decree dissolving his marriage to Wife, Lois Anne Brady.

Division Four holds: 1) The trial court did not abuse its discretion in limiting the time of the trial because the attorneys were consulted regarding the limitation and, because Husband failed to make an offer of proof, he failed to show he was prejudiced by the time limit. 2) The trial court correctly found the 173-acre farm was marital property, and the trial court had proper subject-matter jurisdiction to partition the 173-acre farm under Section 452.330 RSMo. (1994). 3) & 4) The trial court neither erred in awarding Wife $3000 per month in maintenance, nor did the trial court abuse its discretion in ordering Husband to pay Wife one-half of the sale proceeds he received upon selling certain real estate and securities during the marriage. 5) The trial court did not abuse its discretion in ordering Husband to pay some of Wife's attorney fees based on Husband's marital misconduct.

Lawrence E. Mooney, Presiding Judge

Husband, Dennis John Brady, appeals from the judgment and decree dissolving his marriage to Wife, Lois Anne Brady. Husband claims the trial court erred in: (1) limiting Husband's time to present evidence at trial because he was prejudiced; (2) finding that the 173-acre farm was marital property because Wife had signed a quitclaim deed gifting all her interest in the property to him; (3) ordering partition of the 173-acre farm because the trial court did not have jurisdiction to do so; (4) awarding Wife maintenance because she can provide for her reasonable needs with property and employment; (5) ordering Husband to pay Wife half of the money he received from selling real estate and securities in 1993; and (6) ordering Husband to pay $15,000 of Wife's attorney fees from the dissolution and $7,500 of Wife's attorney fees from this appeal. We affirm.

Facts

Husband and Wife were married on June 14, 1968. They had three children, but only one child was unemancipated at the time of trial. Husband was in dental school when he and Wife married, and Wife left college during her freshman year to work to support Husband. She never returned to college. After Husband graduated from dental school, he attended orthodontics school for approximately two years. In 1971, Husband established his own orthodontics practice, and soon, Wife began working in his office. Wife worked full-time in Husband's office performing numerous clerical and managerial tasks until their first child was born in 1973. Then, Wife reduced her hours to part-time until she left Husband's employment in 1998. In addition to working in the office, Wife entertained other dentists and their wives to help Husband build his practice through patient referrals. Wife also stayed home with the children when they were sick, washed the family's laundry and cooked all the meals throughout the marriage.

Besides the dental practice, Husband and Wife also farmed. In 1972, Husband and Wife purchased a 178-acre farm from Husband's parents for $70,000. Husband and Wife signed a note payable to Husband's parents for the entire purchase price, which they finished repaying in 1981. The deed for the 178-acre farm was in both Husband and Wife's names. When the note was satisfied, Wife executed a quitclaim deed assigning her interest in this farm to Husband. In addition, Husband and Wife borrowed $25,000 in 1974 and $45,000 in 1979 to improve the farm. They dug three lakes on the property, built a machine shed, and purchased farm equipment with the loan money. In 1987 and 1988, Wife inherited $200,000 and deposited the money in their joint checking account. Husband and Wife then used the $200,000 to pay the balance of the two farm improvement loans. In 1993, Husband sold five acres of the 178-acre farm, now a 173-acre farm, for $52,500.

Wife and the children routinely participated in farm work with Husband. Husband had a bad back and could not lift heavy items so Wife and the children often engaged in heavy labor tasks. Some farm chores that Wife performed include setting up a portable irrigation system, laying out and transferring irrigation pipes, and planting and harvesting crops.

Analysis

We will sustain the trial court's judgment unless there is no substantial evidence to support it, or 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. banc 1976). We view the evidence and the reasonable inferences therefrom in the light most favorable to the decree. Nichols v. Nichols, 4 S.W.3d 630, 634 (Mo.App. E.D. 2000). If there is a conflict in testimony, we defer to the trial court's determination of the credibility of the witnesses. Id.

Point I: Time Limitation on the Trial

In his first point, Husband argues that the trial court abused its discretion by waiting until the middle of the trial to announce a time limit on the proceedings, causing Husband to suffer prejudice by restricting his opportunity to present evidence. We disagree.

A trial court has discretion to limit the time for presentation of evidence by a pretrial order, and review of the limitation is solely for abuse of discretion. B.J.D. v. L.A.D., 23 S.W.3d 793, 797 (Mo.App. E.D. 2000). "Time limitations should be imposed carefully, and only after consultation with counsel." Id. Although husband complains of the imposition of a time limit, the gravamen of his complaint is that he was not allowed to adduce relevant evidence to his prejudice. A litigant who complains about the exclusion of evidence should make an offer of proof to inform the trial court of the content of the proffered evidence and to allow an appellate court to determine the prejudicial effect of the exclusion. Id. The offer of proof must be specific and definite. Shoemaker v. Ekkuno, 960 S.W.2d 527, 530 (Mo.App. E.D. 1998).

Here, the parties agreed three months before trial that it should only take four days to adduce evidence on all the essential issues. When the trial began, both parties had notice of the four-day time limit. At the start of the third day of trial, the trial court reminded the parties of the limit. Husband's counsel objected to the imposition of the time limit because he claimed that Wife already had two full days to present her case and that she would receive a total of two days and five hours, leaving him with only five hours to present his case and cross-examine witnesses. The trial court overruled the objection. Husband's complaint is misleading because he used almost all of the second day of trial to cross-examine Wife. In addition, the trial court did consult Husband and Wife's counsel before setting a fair time limit.

Further, Husband failed to show precisely how he was prejudiced by the court's time limit. After the trial court overruled Husband's objection to the time limitation order, Husband had two days to make an offer of proof. At the end of the fourth day, Husband's counsel failed to make an offer of proof regarding what testimony he would adduce if given more time. He offered nothing. In the absence of prejudice, there is no reversible error. L.J.B. v. L.W.B., 921 S.W.2d 23, 27 (Mo.App. E.D. 1996). Point denied.

Point II: Classification of the 173-Acre Farm

Husband contends the trial court abused its discretion in finding that the 173-acre farm was marital property because he showed by clear and convincing evidence that Wife gifted the farm to Husband by quitclaim deed.

The trial court has broad discretion in classifying marital property. Absher v. Absher, 841 S.W.2d 293, 294 (Mo.App. E.D. 1992). Section 452.330.3 states that any property acquired after the marriage and prior to legal separation or dissolution is presumed marital property. To rebut the presumption, the attacking party must show by clear and convincing evidence that "both parties intend that the property be excluded from their marital property." Moseley v. Moseley, 795 S.W.2d 464, 467 (Mo.App. E.D. 1990), quoting, Rogers v. Rogers, 573 S.W.2d 425, 426 (Mo.App. 1978).

Husband testified that when he and Wife signed the note to purchase the 173-acre farm, they agreed orally that Wife would gift her interest in the property to him when the note was repaid. Wife testified that her execution of the quitclaim deed was not intended as a gift, but was part of an estate plan. Wife further testified that she and Husband executed wills on April 21, 1981. The quitclaim deed was signed on May 29, 1981. The trial court classified the 173-acre farm as marital property, subject to division under Section 452.330 RSMo. (1994).1 In its findings and conclusions, the trial court found no gift was intended by Wife, and there was no credible evidence to support Husband's contention that the property was gifted to him.

Husband's fruitlessly argues that the quitclaim deed itself constitutes clear and convincing evidence that the 173-acre farm was his separate property. To reach that conclusion, Husband would have us ignore the trial court's determination of credibility that Husband presented no credible evidence that Wife intended to make a gift to him. In its findings and conclusions, the trial court notes that in Husband's August 1998 Statement of Property, he listed the 173-acre farm as marital property. Two years later at the start of the trial, Husband amended his Statement of Property, claiming the farm as his separate property. The trial court made clear its acceptance of Wife's explanation for the quitclaim deed and its rejection of Husband's...

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