Colborn v. Colborn, 16928

• Decision Date: 28 June 1991
• Docket Number: No. 16928,16928
• Citation: 811 S.W.2d 831
• Parties: Betty Lou COLBORN, Plaintiff-Respondent, v. Robert Dwight COLBORN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 831

811 S.W.2d 831

Betty Lou COLBORN, Plaintiff-Respondent, v. Robert Dwight COLBORN, Defendant-Appellant.

No. 16928.

Missouri Court of Appeals,

Southern District,

Division Two.

June 28, 1991.

John Alpers, Jr., Cabool, for defendant-appellant.

Brad D. Eidson, Houston, for plaintiff-respondent.

SHRUM, Judge.

In this dissolution case, the husband Robert Dwight Colborn (Dwight) appeals from the trial court's division of property. The court designated certain property acquired by the parties prior to marriage as marital and divided it between them. Included in the property awarded to the wife Betty Lou Colborn (Betty) was cash representing part of Dwight's interest in a dairy farm partnership. The court also ordered Dwight to pay a portion of Betty's attorney fees. Because there was error in the trial court's marital property determination and division, we reverse and remand. We affirm the portion of the judgment ordering Dwight to pay $500 of Betty's attorney fees.

FACTS

Betty and Dwight lived together unmarried from February 1986 until January 1988 when they separated. They resumed cohabitation upon their marriage in April 1988. In November 1988, they separated, and their marriage was dissolved January 25, 1990.

Evidence at trial focused on property the parties owned when the period of premarital cohabitation began and property they acquired during the premarital cohabitation and marriage. Betty's Exhibit 1 listed and valued what she owned at the time she began living with Dwight in February 1986, and her Exhibit 2 listed and valued what she claimed Dwight owned as of February 1986. Included on Exhibit 2, items owned by Dwight before cohabitation, were 20 head of dairy cattle.

Betty's Exhibit 3, denominated "Items bought while living together," listed numerous specific pieces of property, the purchase price, the person who purchased ¹ each, and the date ² of purchase. Exhibit 3 lists a dairy cow purchased by Dwight in 1987, two shotguns, an all-terrain vehicle, household furniture and appliances, and remodeling and repair items such as carpeting and kitchen and bath faucets. Dwight testified Exhibits 1, 2, and 3 were "about right."

The parties maintained separate checking accounts and split the cost of certain purchases. Betty testified, "I paid half and he paid half of everything that we purchased." She said she paid for "groceries and the running of the house" and asserted Dwight paid for only "some" of the "household items" and "not on a regular basis." Betty said she wanted a prenuptial agreement but Dwight refused to sign one.

When Betty and Dwight began living together, he owed a bank about $4,300 for his cattle. Bank records indicate the loan balance was $986 on April 16, 1988, the date the parties married, and the loan was paid in full on or before April 20, 1988. As of the date of trial (January 25, 1990), Dwight valued his interest in the cattle at $18,350.

There was considerable testimony about the dairy farming partnership. Dwight testified he contributed one-half the cattle and provided all the labor to the dairy operation; his parents furnished one-half the cattle and all the land, equipment, and machinery. After payment of expenses, Dwight and his parents split the profit. As of the date of the trial, Dwight's father was deceased; Dwight continued in partnership with his mother.

There was conflicting evidence about the date the partnership was formed. Dwight said he and his parents operated under an oral agreement as early as March 1985. Betty testified there was no partnership between Dwight and his parents as of February 1986 when the premarital cohabitation began, but she admitted the partnership existed when she and Dwight married in April 1988.

Dwight and his parents executed a written partnership agreement in March 1988 which recited that Dwight had contributed 17 cows and his parents 17. Dwight denied he entered the written partnership agreement because of his impending marriage to Betty, and Betty does not contend the upcoming marriage precipitated the written partnership agreement. Betty testified she was not active in the dairy operation.

The trial court's judgment included the following "finding":

6. That the parties have acquired marital property during the term of the marriage or in contemplation of the marriage ... as follows:

a.-w. [Excluding two gifts to the wife's son from a previous marriage, the court here listed all items on the wife's Exhibit 3 which she had characterized as "Items bought while living together." Exhibit 3 listed one dairy cow; the court's finding listed "Dairy cows."]

x. One-half interest in cattle and partnership (i.e. $9,175.00)

y. Interest in partnership bank account--$1,503.00 z. Great Southern Certificate of Deposit--$3,000.00 ³

aa. Great Southern checking account--$600.00

bb. Ford Escort automobile

Among other items it had designated as marital property, the court awarded to Betty:

....

i. Cash representing one-half ( 1/2) the difference between the value of items Robert has received verses [sic] items Betty has received, to-wit: ... ($3,602.97)

j. Cash representing interest in debt reduction; increase in stock; and increase in value, to-wit: ... ($4,587.50)

k. One-half ( 1/2) of Great Southern Certificate of Deposit, to-wit: ... ($1,500.00)

l. Ford Escort

STANDARD OF REVIEW

Our review is governed by the principles enunciated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). See Misdary v. Misdary, 737 S.W.2d 476, 479 (Mo.App.1987). Thus we must affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32.

ANALYSIS AND DECISION

In his first point on appeal, Dwight challenges the sufficiency of the evidence to support the trial court finding that a portion of his interest in the dairy farm partnership was marital property. For the reasons that follow, we conclude that the evidence was insufficient to support the trial court's designation of the partnership interest and other property as marital and the division of that property.

The Dissolution of Marriage Act, §§ 452.300-452.423, RSMo 1986 & Cum.Supp.1990, requires the trial court to identify and divide marital property in a dissolution of marriage case. Section 452.330 provides, in pertinent part:

1. In a proceeding for dissolution ... the court shall set apart to each spouse his nonmarital property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors including:

....

(2) The contribution of each spouse to the acquisition of the marital property....

(3) The value of the nonmarital property set apart to each spouse....

2. For purposes of sections 452.300 to 452.415 only, "marital property" means all property acquired by either spouse subsequent to the marriage except:

....

(5) The increase in value of property acquired prior to the marriage ... unless marital assets including labor, have contributed to such increases and then only to the extent of such contributions....

3. All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation or dissolution of marriage is presumed to be marital property.... The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection 2 of this section.

Despite the language of § 452.330.2, marital property is not limited to "property acquired by either spouse subsequent to the marriage...." Property is marital if it is purchased in contemplation of marriage and intended to be marital property. F.W.H. v. R.J.H., 666 S.W.2d 910, 912 (Mo.App.1984). However, there must be evidence to support a finding that property was purchased in contemplation of marriage and intended to be marital property. In F.W.H. v. R.J.H. such evidence consisted of testimony. Id. at 912.

Where there is conflicting evidence about whether property was purchased in contemplation of marriage, the trial court's finding will generally not be disturbed. See, e.g., Lipe v. Lipe, 743 S.W.2d 601, 603 (Mo.App.1988); Murphy v. Murphy, 613 S.W.2d 450, 451-52 (Mo.App.1981). The case before us, however, involves the sufficiency of the evidence rather than resolution of conflicting evidence.

In its "finding" No. 6, the trial court characterized certain property as marital because the parties acquired it "during the term of the marriage or in contemplation of the marriage...." We find no evidence to support the trial court's determination that the parties acquired a portion of the cattle and other dairy farming partnership assets in contemplation of marriage and with the intent that they be marital property. Likewise, there is no evidence that any of the Exhibit 3 assets that were acquired before the marriage were acquired in contemplation of marriage and with the intent they be marital property. ⁴

Betty's argument that the parties acquired certain property in contemplation of marriage is skeletal; paraphrasing liberally, we take her argument to be: Because the parties cohabited and subsequently married, they must have cohabited in contemplation of marriage. Thus, any property they acquired during the period of cohabitation must have been acquired in contemplation of marriage.

We find no authority for the proposition that, as a matter of law, persons who cohabit and subsequently marry must have cohabited in contemplation of marriage. Moreover, in Betty and Dwight's case, the cohabitation was followed by a period of separation; marriage followed the separation. Nor do we find authority for the proposition that, as a matter of law, property acquired while living together is acquired in contemplation of marriage simply because marriage follows the cohabitation.

The only evidence we find concerning the parties' intent came in the following...