Cain v. Cain

• Decision Date: 12 April 1976
• Docket Number: No. 9948,9948
• Citation: Cain v. Cain, 536 S.W.2d 866 (Mo. App. 1976)
• Parties: In re the Marriage of Camille Ann CAIN, Appellant, v. John William CAIN, Respondent.
• Court: Missouri Court of Appeals

Page 866

536 S.W.2d 866

In re the Marriage of Camille Ann CAIN, Appellant, v.John William CAIN, Respondent.

No. 9948.

Missouri Court of Appeals, Springfield District.

April 12, 1976.

Motion for Rehearing or to Transfer Denied May 5, 1976.

Application to Transfer Denied June 14, 1976.

Julian J. Ossman, Myers, Webster & Perry, Webb City, for appellant.

George G. Allen, Jr., Niewald, Risjord & Waldeck, Kansas City, Jon Dermott, Ronald E. Mitchell, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for respondent.

Before BILLINGS, C.J., and TITUS and FLANIGAN, JJ.

FLANIGAN, Judge.

This action for dissolution of marriage was instituted by John William Cain, petitioner below and respondent here, against his wife Camille Ann Cain, respondent below and appellant here.The parties will be referred to by their first names.

John was born in 1930.He graduated from high school, attended junior college and, in 1953, graduated from the Illinois College of Podiatry.In 1956he commenced the practice of his profession in Joplin, Missouri.

On September 27, 1958, John purchased, and in his own name obtained the title to, a certain tract of land referred to in the record as 'the farm.'To meet the purchase price of $20,000 John made a down payment of $3,500 and gave his note for $16,500 secured by a mortgage on the farm.The note was payable in monthly installments of $141.19, and John made seven such payments prior to the marriage.

Several months after he purchased the farm, John met and courted Camille.They were married on May 16, 1959, and they did not separate until March 10, 1974.They lived on the farm until 1967.

Camille was a junior college graduate, having had 'business type courses, typing and shorthand.'Prior to the marriage she worked in a physician's office as a secretary-receptionist and she continued that employment until shortly before the birth of the first child, Steven, on July 29, 1960.Two other children were born to the marriage, Rachel on March 7, 1962, and Janet on February 23, 1965.

John's practice was a prosperous one and by 1973 it was operated as a professional corporation of which John was sole officer.His salary for that year was $74,060.

During the marriage eight more tracts of land were purchased.Six were purchased in the joint names of John and Camille and are still mortgaged.Two were purchased in John's name alone and one of them is still mortgaged.

The judgment of the trial court dissolved the marriage, awarded custody of Rachel and Janet to Camille and Steven to John, prescribed visitation rights, set apart the farm to John, divided the marital property (including the other tracts of real estate and certain personal property), required John to pay Camille maintenance and to pay her support for the two children in her custody, and awarded Camille suit money and attorney's fees.The particulars of the judgment, so far as relevant to the points on appeal, will be set forth later.

Camille's three appellate contentions, in summary form, are: first, that the trial court erred in finding that the farm was not 'marital property'; second, that the trial court erred in the manner in which it divided the marital property; third, that the trial court's award of 'maintenance' to Camille was inadequate.

In this court-tried case the made of appellate review is governed by Rule 73.01, subsec. 3, V.A.M.R.See alsoIn Re Marriage of Powers, 527 S.W.2d 949, 954(Mo.App.1975).

IS THE FARM 'MARITAL PROPERTY?'

This action was filed on March 25, 1974, and accordingly it is subject to the provisions of § 452.300 to 452.415 V.A.M.S.These statutes, which have been referred to as the 'Divorce Reform Act' and 'Modified No Fault Divorce Reform'Claunch v. Claunch, 525 S.W.2d 788, 790(Mo.App.1975), will be referred to in this opinion as 'the act.'

Section452.330 V.A.M.S. provides in part:

'1.In a proceeding for . . . dissolution of marriage . . . the court shall set apart to each spouse his property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors, including . . .'The statute then sets forth four factors.The trial court held that the farm is not 'marital property' and this court agrees.

For purposes of the act only, § 452.330, subsec. 2, defines 'marital property' to mean 'all property acquired by either spouse subsequent to the marriage' with five exceptions.If the farm was not 'acquired by either spouse subsequent to the marriage,' it does not meet the basic definition of 'marital property' and, in that event, the applicability of any of the five exceptions need not be explored.

At p. 790 of Claunch it is said:

'Although, as indicated, the act defines 'marital property,' it does not define 'property.'But § 1.020 provides, in pertinent part, 'As used in the statutory laws of this state, unless otherwise specifically provided or unless plainly repugnant to the intent of the legislature or to the context thereof: . . .

(8)'Personal property' includes money, goods, chattels, things in action and evidence of debt; . . .

(11)'Property' includes real and personal property;

(12)'Real Property' or 'premises' or 'real estate' or 'lands' is coextensive with lands, tenements and hereditaments; . . ."

It should be noted that § 452.330, in requiring the court to 'set apart to each spouse his property,' does not define 'his property.'Obviously the farm was 'property' but was it 'John's property' within the meaning of the statute?

Camille points out that during the marriage 187 monthly payments of $141.19 each were made on the loan on the farm and that a small balance remains due.Camille says that these payments were made with money which was itself 'marital property.'Camille argues that 'whether property is marital or non-marital should depend upon the source of the funds used to acquire the property, not upon the time at which bare legal title was acquired.'Camille claims that prior to the marriage John paid $4,480.33 toward the purchase of the farm; that during the marriage 'marital funds'(Camille's term) in the amount of $26,402.53 were applied to the purchase price; that, accordingly, marital funds have paid for (approximately) 85 percent of the interest in the farm and John's separate funds have paid for 15 percent of that interest.Thus, Camille says the trial court should have awarded John 15 percent of the interest in the farm and divided the remaining 85 percent equally between John and Camille.¹

Section 452.330 does not use the term 'separate property' to describe 'his property,' i.e., that which the court is required to 'set apart to each spouse.'However, the term has been used in a leading article² on the 'property provisions' of the act and seems peculiarly apt.

Accordingly the inquiry is, was the farm John's separate property and, if so, was its status altered or affected by the fact that it was subject to a mortgage or by the additional fact that some of the payments on the mortgage were made with money which itself was 'marital property'?

In Conrad v. Bowers, 533 S.W.2d 614(Mo.App.1975), a dissolution proceeding, Mr. Bowers, prior to the marriage, acquired some land which was referred to as the 'Lombard property.'Title was in his name alone.At the time of the trial there was a mortgage on the Lombard property, although the opinion does not reflect whether that mortgage antedated the marriage, nor does it show the source of the mortgage payments.

The court said: '(I)t was not disputed that the Lombard property was purchased and titled in the name of Mr. Bowers prior to his marriage with the appellant and remained so titled after the marriage.The Lombard property, therefore, is not marital property, and should be set apart to Mr. Bowers.The implication of subsection 2 of § 452.330 is clear that property acquired prior to, rather than subsequent to, the marriage and maintained and treated as such after the marriage is not marital property.That is what Mr. Bowers has done with the Lombard property, and that property is to be considered as his separate property and must be 'set apart' to him.'

Conrad, accordingly, supports the proposition that the fact that the farm was mortgaged is not alone sufficient to remove it from the classification of separate property.It must be conceded that if John had purchased the farm outright and had remained single, the farm was 'his property.'Before he met Camille he ahd the legal title to it but it was an encumbered title.Did his status as a mortgagor render him any less the owner of the farm?

'A mortgagor in possession is generally held to be the owner, but not after foreclosure and sale.'63 Am.Jur.2dProperty§ 34, p. 319.'(A) mortgage is a mere lien on real estate.'Kline v. McElroy, 296 S.W.2d 664, 665(1)(Mo.App.1956).

'The modern doctrine is well established that a mortgage is but a security for the payment of the debt or the discharge of the engagement for which it was originally given; and until the mortgagee enters for breach of the conditions, and in many respects until final foreclosure of the mortgage, the mortgagor continues the owner of the estate, and has a right to lease, sell, and in every respect to deal with the mortgaged premises as the owner, so long as he is permitted to remain in possession.'(Emphasis added)Benton Land Co. v. Zeitler, 182 Mo. 251, 81 S.W. 193, 197(1904).

The following language appears in Tiffany, The Law of Real Property, 3d Ed. Vol. 5, § 1380, p. 232: 'In other states the view that the mortgagee has the legal title is entirely superseded, both at law and in equity, by the view which has always prevailed in equity, that he has merely a lien to secure his debt.'Citing Benton, Tiffany says, 'This view prevails in Missouri.'

At § 1411, p. 296 it is said: 'Even in jurisdictions in which the title theory of a mortgage is adopted, the mortgagor is for most purposes regarded as the substantial owner...