Brooks v. Kunz

• Court: Missouri Court of Appeals
• Writing for the Court: SNYDER
• Citation: Brooks v. Kunz, 597 S.W.2d 183 (Mo. App. 1980)
• Decision Date: 26 February 1980
• Docket Number: No. 40547,40547
• Parties: J. Theresa BROOKS, a/k/a J. Theresa Kunz, Plaintiff-Respondent, v. Douglas O. KUNZ, Defendant-Appellant.

Page 183

597 S.W.2d 183

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

No. 40547.

Missouri Court of Appeals, Eastern District, Division One.

Feb. 26, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

April 18, 1980.

Application to Transfer Denied May 13, 1980.

Arthur L. Smith, J. Reed Johnston, Jr., Peper, Martin, Jensen, Michel & Hetlage, St. Louis, for defendant-appellant.

John W. Reid, II, Schnapp, Graham & Reid, Fredericktown, for plaintiff-respondent.

SNYDER, Presiding Judge.

This appeal arises from an action incapable of description in any ordinary way. It stems from one of the live-together-without-the-benefit-of-clergy arrangements which are so common today, and the attempt by the woman, after separation, to obtain a share of, in this case, jointly held assets. Such suits have been aptly described as claims for palimony, the best known of which is the Marvin case in California. ¹

Plaintiff-respondent J. Theresa Brooks sued her erstwhile friend, defendant-appellant Douglas O. Kunz to quiet title to a 101 acre farm in St. Francois County; to partition the farm and the value of the contract for deed (the Spence contract) for land situated in Ravalli County, Montana, both titled in the names of Douglas O. Kunz and J. Theresa Kunz as husband and wife; and for child support. The person named as J. Theresa Kunz in the deed and the contract was, of course, J. Theresa Brooks.

The trial court quieted title to the farm property in the parties, finding each was entitled to an undivided one-half interest as tenants in common, and order sale of the farm and division of the proceeds of the sale. The court found each party to have an undivided one-half interest in the Spence contract and ordered appellant to pay respondent $6,170.59 or one-half the balance due on the contract as of August 1, 1977. The court further awarded child support to be paid by appellant to respondent in the amount of $40 per week, $20 per week for each of the two children born of the relationship. Attorneys fees were awarded respondent's attorney in the amount of $3,530. The fees were based upon a sliding scale of percentages of the sale price of the farm. Finally, the trial court ordered $2,500 to be withheld from appellant's share of the proceeds of the sale of the farm and posted as a cash bond to assure payment of the child support by appellant. Appellant accepted his share of the proceeds of the sale as determined by the trial court.

Appellant contends the trial court erred in: (1) quieting title to and ordering partition of the farm without sufficient evidence of respondent's contribution, if any, to the acquisition or improvement of the property; (2) ordering the sale of the farm without sufficient evidence to show that partition in kind would result in prejudice to the parties' respective interests; (3) decreeing that respondent held a one-half interest in the sales contract for the couple's Montana property without any evidence of respondent's contribution to the initial purchase of the property; (4) awarding to respondent exactly one-half the residual value of the sales contract ($6,170.59) on the Montana property as that amount was not yet due nor presently payable and therefore the amount awarded was not representative of the contract's true worth; (5) requiring of appellant a $2,500 cash bond as security for payment of child support; and finally, (6) allowing respondent attorneys fees when respondent was not entitled to partition, and, if respondent were in fact entitled to partition, allowing attorneys fees based upon a percentage of the sale price and for time spent on matters not part of an uncontested partition action.

The judgment is affirmed in part, reversed in part and reversed and remanded in part.

The bizarre chain of events which led to this litigation began in March 1970 when appellant and respondent began living together and holding themselves out as man and wife. In fact, they never married. At the time they met, appellant was a widower with ten children. Respondent was married but separated from her husband and had two children of her own. She remained married to Mr. Brooks until the trial of this action. During the period of the parties' cohabitation, respondent bore two more children, both fathered by appellant.

For a time, the couple resided in Montana where, holding themselves out as man and wife, they adopted yet another child and where they had occasion to convey some real estate. The record is silent as to how the pair first acquired the property and what contribution each made toward its acquisition. This conveyance, the Spence contract, a contract for deed on land located in Ravalli County, Montana, was an escrow transaction whereby appellant and respondent, as husband and wife, were to place a deed in escrow and the buyers were to pay most of the $20,000 purchase price in monthly installments over a period of time. The escrow agent was a bank in Montana. Under this arrangement, title to the property would not be conveyed until after the final payment was received. The unpaid balance on the Spence contract was $12,341.18 as of August 1, 1977.

There was another contract for deed known as the King contract, also on land in Montana, in which the trial court ruled respondent had no interest. This ruling was not challenged by either party.

Upon leaving Montana, the couple lived in Utah for three months, then in December of 1971 moved to Missouri and purchased some 101 acres of farm property in St. Francois County. The property was conveyed to "Douglas O. Kunz and J. Theresa Kunz, his wife" by general warranty deed. At the time they took possession an old frame house and shed were the only improvements on the land. In 1972 a new three bedroom house and a new work shed were constructed. Later, yet another new three bedroom house was completed. Again, the record is silent as to just what contribution, if any, the respective parties made toward the purchase or improvement of this property. The parties lived together on the farm until January of 1973.

Also in 1972, another house was purchased in Fredericktown, payment for which was secured by a note and deed of trust signed by appellant and respondent, as husband and wife, and H. Doretta Owen, single and unmarried. Title thereto was taken by appellant and H. Doretta Owen as joint tenants and not as tenants in common. ² Respondent makes no claim against the Fredericktown property.

A disagreement over treatment of the children created a rift between the parties and they separated for the period between January and March, 1973. Respondent left for Colorado during this time and took her four natural children along (two of which were also appellant's natural children). They returned in March and appellant made support arrangements for them by providing rent-free accommodations at the Fredericktown house and paying her $100 a month.

Although they had ceased living together, their relations continued until July 1977 when it became obvious a suit was in the offing. Appellant stopped making the $100 monthly payments after August 1977 and no payments have been made since. Suit was filed on August 23, 1977.

The trial court's judgment must be affirmed unless it is against the weight of the evidence, not supported by substantial evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Rule 73.01.

In appellant's first point relied on he alleges trial court error in decreeing that the parties each had an undivided one-half interest in the farm and the Spence contract. Appellant also contends the trial court erred in decreeing partition because respondent failed to prove she had an interest in the assets.

The warranty deed to the farm naming as grantees "Douglas O. Kunz and J. Theresa Kunz, his wife" was received in evidence without objection. ³ The parties agree that when real property is deeded to a couple as man and wife and the couple in fact are only unmarried cohabitants, the individuals hold the land as tenants in common. ⁴ Douglas O. Kunz and J. Theresa Kunz, his wife, were named also as sellers and payees of the purchase price of the Spence contract which was also received in evidence. In addition, there was some evidence of respondent's contribution to the couple's arrangement by reason of domestic services. Therefore, respondent had an interest which would entitle her to partition the farm and the contract. The fractional value of respondent's interest, however, is open to question. There was no evidence to establish the exact value of her share.

Respondent argues that she is entitled to an undivided one-half interest. Appellant claims respondent has not proved she made any contribution to the cost of acquiring the assets.

The Missouri Supreme Court spoke to this problem under a similar set of facts in Anderson v. Stacker, 317 S.W.2d 417, 421(3-5) (Mo.1958) " 'A conveyance to grantees as husband and wife, although the parties were knowingly living in meretricious relations, will, nothing being shown to warrant a different conclusion, 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 not always being in equal shares but according to the proportionate contribution of each of the grantees toward the acquisition of the property.' Annotation, 31 A.L.R.2d loc. cit. 1311."

Anderson v. Stacker was followed recently in Keller v. Porchey, 560 S.W.2d 257 (Mo.App.1977).

There is authority for holding that where two or more persons take as tenants in common under an instrument which is silent in regard to their respective shares, there is a presumption, albeit rebuttable, that their shares are equal, 20 Am.Jur.2d, Cotenancy and Joint Ownership § 118, p. 216. Although supported by logic and fairness...