Brooks v. Kunz, 44340

• Decision Date: 25 May 1982
• Docket Number: No. 44340,44340
• Parties: J. Theresa BROOKS a/k/a J. Theresa Kunz, Appellant, v. Douglas O. KUNZ, Respondent.
• Court: Missouri Court of Appeals

Page 135

637 S.W.2d 135

J. Theresa BROOKS a/k/a J. Theresa Kunz, Appellant, v. Douglas O. KUNZ, Respondent.

No. 44340.

Missouri Court of Appeals, Eastern District, Division Three.

May 25, 1982.

Motion for Rehearing and/or Transfer Denied July 16, 1982.

Application to Transfer Denied Sept. 13, 1982.

John W. Reid, II, Fredericktown, for appellant.

Ralph M. Friederich, St. Louis, for respondent.

REINHARD, Presiding Judge.

This is the second appeal of this case. See, Brooks v. Kunz, 597 S.W.2d 183 (Mo.App.1980). Plaintiff's original petition was in three counts. In Count I, plaintiff requested the court to quiet title to a 101 acre farm in St. Francois County in her and defendant as tenants in common; in Count II, she requested partition and sale of the farm; and in Count III, she requested relief for matters unrelated to this appeal.

At the conclusion of the first trial, the trial judge granted plaintiff's request and quieted title to the farm in her and defendant as tenants in common, finding that each owned an undivided one-half interest, ordered a sale of the farm and division of the proceeds. The land was sold for $64,000.00. $3,530.00 was allowed for attorney's fees, based upon a graduated fee schedule.

Plaintiff and defendant had taken title to the farm as husband and wife, even though they were never married. In the first appeal, we held, citing Anderson v. Stacker, 317 S.W.2d 417, 421 (Mo.1958) that:

"A conveyance to grantees as husband and wife, although the parties were knowingly living in meretricious relations, will, ... ordinarily be construed to create a tenancy in common, and the property so conveyed will be apportioned, in the partition or similar proceedings, on that basis, the apportionment being ... according ... to the proportionate contribution of each of the grantees toward the acquisition of the property."

Brooks, 597 S.W.2d at 187.

We found plaintiff had an interest in the property entitling her to partition but reversed the case because the exact amount of plaintiff's contribution was not shown. The case was "remanded for a new trial at which evidence of the respective contributions of the parties to the acquisition of the farm property should be adduced." 597 S.W.2d at 187. We also reversed the court's order as to the allowance for attorney's fees because it was based solely upon a fee schedule.

On remand, over defendant's objection, plaintiff amended her petition to allege an implied contract to share property between her and the defendant, relying upon Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106 (1976). ¹

A different judge heard the case on remand. At the conclusion of the second trial, the court filed findings of fact and conclusions of law and found: 1) the defendant "contributed the entire amount of the acquisition of ... the St. Francois property ...."; 2) any household services rendered by the plaintiff "were gratuitous because such services were rendered in a family relationship"; ² (3) there was no express or implied contract between the parties as to division of the disputed property.

The court thereupon decreed that the entire amount of the proceeds from the partition sale belonged to defendant, allowed an offset to plaintiff of $6,180.00 for past due child support ³ and awarded plaintiff's attorney $1,300.00 as and for reasonable attorney's fees. From this decree, plaintiff appeals.

In her first point, plaintiff alleges the trial court erred in not finding an implied contract to divide the property. We think this issue was improperly before the court.

Whenever an appellate court reverses and remands the judgment of a trial court, the appellate court does so with directions which are determined from the mandate and opinion of the appellate court. Abrams v. Scott, 357 Mo. 937, 211 S.W.2d 718, 721 (1948). In our opinion, we stated this case was "remanded for a new trial at which evidence of the respective contributions of the parties to the acquisition of the farm property should be adduced." The jurisdiction of the circuit court, upon a retrial of the case was limited solely to this issue. State ex rel. Dolman v. Dickey, 288 Mo. 92, 231 S.W. 582, 584 (1921).

The injection of the issue of an implied contract into the case by plaintiff is outside the scope of our direction to the trial court contained in our mandate. Failure of the trial court to find for the plaintiff on this issue cannot, therefore, be error.

In her second point, plaintiff asserts the trial court erred because there is a presumption that each co-tenant has an equal interest in the property.

Unfortunately, we were confronted with this precise issue in the first appeal and determined that we were bound by the Supreme Court's ruling in Anderson v. Stacker, 317 S.W.2d 417 (Mo.1958). The decision of an appellate court is the law of the case on all points presented and decided and remains as such throughout all subsequent proceedings both in the trial and the appellate courts and no question decided in the first appeal will be considered in the second. Feinstein v. McGuire, 312 S.W.2d 20, 23 (Mo.1958). This point must be ruled against plaintiff. ⁴

The trial judge found that the defendant contributed the entire amount to the acquisition of the farm. We disagree. While, there is no evidence that plaintiff contributed any cash and scant evidence of compensable services towards the purchase of the property, her execution of the note and deed of trust at the time of the purchase did constitute a contribution towards the acquisition of the property entitling her to a proportion of the sale proceeds.

The evidence established that in November, 1971, the 101 acre farm in St. Francois County was purchased for a total price of $17,500.00. Defendant made a down payment of $10,000.00. By general warranty deed, the parties took title to the property as husband and wife.

Both parties executed a note and deed of trust for the remainder of the purchase price in the amount of $7,500.00. Subsequently, defendant paid off the note. He also constructed two houses on the property with his own money. The court found that although plaintiff performed services for defendant, they were gratuitous because rendered in a family relationship. Brassfield v. Allwood, 557 S.W.2d 674, 681 (Mo.App.1977). Plaintiff does not challenge this conclusion of the trial court.

In Atkinson v. Dasher, 588 S.W.2d 215 (Mo.App.1979), the parties jointly purchased real estate for $89,950.00 with the intention to marry. Dr. Dasher contributed $19,000.00, and his fiancee, Bonnie contributed $1,000.00 towards the down payment and both executed a note and deed of trust for $71,950.00. Nine months later, Bonnie died and a partition action was instituted. The court cited Anderson v. Stacker and also cited 86 C.J.S. Tenancy in Common, § 18, pp. 378-79 for the proposition that: "(I)t has been held that proof of the fact that at the time of purchase vendees contributed unequal sums in cash is not proof that they took or intended to take in that proportion, where such payment in cash was only part of the total consideration." 588 S.W.2d at 216-17.

The court apparently held that Bonnie had an "entitlement ... (to) one-half of the net sale proceeds upon distribution after partition was made," but her one-half share should be reduced by contributions made by Dr. Dasher. 588 S.W.2d at 217.

The apparent source of the quotation above from C.J.S. is Anderson v. Anderson, 137 Kan. 833, 22 P.2d 471 (1933). In Anderson, title to disputed property was taken in the name of two brothers, James and Richard. At the time of the purchase, James paid $4,300.00 and Richard paid $2,200.00 towards the $13,000.00 purchase price. Both also executed a note and mortgage in the amount of $6,500.00. Subsequently, James paid the entire $6,500.00 note.

For the purpose of determining the interest each owned, the court expressly held that the execution of the mortgage constituted a contribution of $3,250.00 by each co-tenant towards the purchase price regardless of which co-tenant thereafter paid the mortgage. The court reasoned as follows:

"(W)hy should interests be determined by the circumstance that one vendee paid more of the cash part of the consideration than the other. This land was not purchased for cash. One-half of the consideration was paid to vendor Martin by the joint note of James and Richard for $6,500 secured by their joint mortgage of the land. Under the law of this state, each maker of the note was severally liable for the full amount. By signing the note, Richard contributed just as much to $6,500 of the consideration as James contributed. If one subsequently paid the note or paid more than half the note, he might claim contribution from his comaker ...."

22 P.2d at 472.

In Missouri, both the plaintiff and the defendant here, were jointly and severally liable for the full amount of the $7,500.00 note. Atkinson, 588 S.W.2d at 216. If default had occurred, a judgment in the entire amount of the note could have been entered against the plaintiff above. We think the approach taken in Anderson is sound and not inconsistent with Missouri law. ⁵

Where one co-tenant pays all of the cash towards the down payment, but both co-tenants jointly execute a note for part of the purchase price, there are at least two other ways to determine the interest each acquires.

First, their interests could be determined solely by the amount of cash paid at the time of purchase. Second, their interest could be determined by computing the total of the amount paid at the time of purchase and any amount paid to reduce the mortgage after the purchase.

Under the first method, a party who contributed no cash towards the purchase price but subsequently pays off part of the mortgage would have no interest in the property. Under the second method, as that same party pays off part of the mortgage, his ownership interest increases with each payment. The first method...