Clark v. Dady

• Decision Date: 06 April 2004
• Docket Number: No. WD 61722.,WD 61722.
• Citation: 131 S.W.3d 382
• Parties: Mary CLARK, Respondent, v. John B. DADY, Appellant.
• Court: Missouri Court of Appeals

131 S.W.3d 382

Mary CLARK, Respondent, v. John B. DADY, Appellant.

No. WD 61722.

Missouri Court of Appeals, Western District.

April 6, 2004.

William L. Voorhies, Kansas City, for Respondent.

Rocky T. Cannon, Raytown, for Appellant.

Before: BRECKENRIDGE, P.J., and EDWIN H. SMITH and HOWARD, JJ.

EDWIN H. SMITH, Judge.

John Dady appeals from the judgment of the Circuit Court of Platte County for the respondent, Mary Clark, on her suit to partition personalty, specifically, a mobile home. The judgment awarded the respondent the mobile home as her "sole property," even though it was jointly titled in both parties' names and both parties were obligated on the promissory note, which financed the balance of the purchase price owed.

The appellant raises three points on appeal. In Point I, he claims that the trial court erred in awarding the respondent the mobile home as her sole property because it misapplied § 528.030¹ and Rule 96² by not ordering it sold and partitioning the proceeds, reflecting the respective interests of the parties. In Point II, he claims that the trial court, in partitioning the mobile home, erred in calculating the respective interests of the parties therein because it failed to "credit [him] for the mobile home down payment, for one-half of the value of the mortgage used to finance the mobile home, for money spent improving the mobile home, and for one half the rental value of the mobile home." In Point III, he claims that the trial court plainly erred in:

not ordering a partition by sale of the mobilie [sic] home, because the totality and cumulative effect of multiple errors in the judgment could have been prevented by a partition by sale of the mobile home so that Dady was prejudiced as evidenced by the adverse judgment of the trial court.

We reverse and remand.

Facts

In 1998, the parties purchased a Holly Park mobile home for approximately $35,848, $4,000 down with the balance being financed by Greentree Financial. The debt to Greentree was evidenced by a promissory note that was jointly executed by the parties. At the time of trial, the note was held by Greentree's successor in interest, Conseco Finance Servicing Corp.

For a time, the parties resided together in the mobile home. During that time, the note payments on the mobile home of $435 per month were being made, but it is unclear from the record by whom. Sometime in August 2001, the appellant voluntarily moved out of the mobile home. The respondent, who then enjoyed exclusive possession of the mobile home, made the note payments, as well as monthly lot rental payments of $175 and monthly utility payments.

On January 22, 2002, the respondent filed a petition in the Circuit Court of Platte County to partition the mobile home, which alleged, inter alia, that she and the appellant were "joint owners" of the mobile home, asking that it be partitioned "between [them] according to their respective interests therein and that [the respondent] be found to be the rightful owner of said personal property due to the care and amount of money that she has contributed to the purchase of said property." The petition further asked of the court:

that the property and the interested parties thereto be ordered by the Court in accordance with law relating to the sale and disposition of property and partition suits, and that the Director of Revenue be ordered to place the above described property in the sole name and ownership of [the respondent] and for all other Orders as the Court deems just and proper in the premises.

The case was tried to the court on July 10, 2002. The respondent was represented by counsel, while the appellant proceeded pro se. The respondent testified at trial that when she and the appellant purchased the mobile home in 1998, she had transferred money from her own individual retirement account to a bank account in the appellant's name, and that money was used to make the down payment. The respondent further testified that there was a balance of $31,964.19 due on the note financing the mobile home. The appellant testified that he contributed to the down payment on the mobile home, claiming that the money which the respondent transferred from her IRA account was actually used to purchase some motor vehicles. He also testified that he had improved the mobile home by adding a $10,000 deck and mud room, a $1,500 barn, and $2,000 worth of landscaping, plus contributing "hours of painting," for which he was requesting reimbursement in the partition action.

On July 26, 2002, the trial court entered a judgment awarding the mobile home to the respondent "as her sole property free and clear of any lien, claim, right or demand of [the appellant]." The judgment also ordered the Director of Revenue to cause the mobile home to be titled in the sole name of the respondent, subject to any perfected liens. In addition, the judgment recited that the respondent "is entitled to reimbursement, from [the appellant] of $3,050 representing one-half of the lot payments and one-half of the loan payments which [the respondent] made on the [mobile home] since August, 2001."

This appeal followed.

Standard of Review

Our review of a partition action is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Cmty. Bank of Chillicothe v. Campbell, 870 S.W.2d 838, 840 (Mo.App.1993). Thus, we will sustain 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. Id.

I.

In Point I, the appellant claims that the trial court erred in awarding the respondent the mobile home as her sole property because it misapplied Chapter 528 and Rule 96 by not ordering it sold and partitioning the proceeds, reflecting the respective ownership interests of the parties in the property. In Point II, he claims that the trial court, in partitioning the mobile home, erred in calculating the respective ownership interests of the parties therein because it failed to "credit [him] for the mobile home down payment, for one-half of the value of the mortgage used to finance the mobile home, for money spent improving the mobile home, and for one half the rental value of the mobile home." Although denominated as two separate points, Point II is nothing more than an extension of Point I. Reading the two points together, the appellant is simply claiming that the trial court failed to properly apply the law of partition in determining the parties' ownership interests in the mobile home and ordering it distributed in kind, in toto, to the respondent. Consequently, we address both points together.

Partition is an in rem proceeding, Cmty. Bank, 870 S.W.2d at 841, governed by Chapter 528 and Rule 96. Section 528.030³ and Rule 96.01 authorize joint tenants and tenants in common to bring an action in partition. In a partition action, the "court shall determine the interests of the parties and order partition in kind or the sale of the land." Rule 96.08. The subject property of the partition action can be ordered sold and the proceeds distributed where partition in kind "cannot be made without great prejudice to the parties." § 528.340 and Rule 96.18. The proceeds of the partition sale are to be used first to pay the costs and expenses of the proceedings, with the remainder to be distributed to the parties based on their respective ownership interests. § 528.460 and Rule 96.27. Partition of personal property may be had in the same manner as a partition of real property. § 528.620 and Rule 96.32. Thus, partitioning of personal property in kind is authorized, although in many cases it is impossible due to its character. Halferty v. Karr, 188 Mo.App. 241, 175 S.W. 146, 147 (1915).

In a partition action, the trial court only has two options: (1) partition the property in kind; or (2) order the property sold and the proceeds divided based on the respective interests of the parties in the property. Rule 96.08. Here, the trial court ordered that the mobile home jointly owned by the parties be awarded to the respondent in kind, in its entirety. The appellant contends that as a matter of law such an award is not authorized by the law of partition, citing Lemay v. Hardin, 48 S.W.3d 59 (Mo.App.2001). And, in the alternative, he argues that even if such an award is permitted, the record does not support such an award here.

In ordering the partition of property, the trial court is required to "determine the interests of the parties" in the property. Rule 96.08. In that regard, the record reflects that the mobile home was titled in both parties' names. However, they were not married when they purchased it such that they did not take it as tenants by the entirety. Montgomery v. Roberts, 714 S.W.2d 234, 235-36 (Mo.App.1986). In addition, the certificate of title to the mobile home did not include a right of survivorship provision, such that the parties did not take the mobile home as joint tenants. Heintz v. Hudkins, 824 S.W.2d 139, 142 (Mo.App.1992). Thus, they took title as tenants in common. § 442.450.

In Anderson v. Stacker, the Missouri Supreme Court was confronted with the issue of how to apportion property held as tenants in common. 317 S.W.2d 417, 421 (Mo.1958). There, real property was titled in the parties' joint names as husband and wife in contemplation of marriage, which never occurred. In deciding the issue presented, the Court held that:

[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 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.

Id. We read the Court's...