Coleberd v. Coleberd, s. 20196

Decision Date30 September 1996
Docket NumberNos. 20196,20838,s. 20196
Citation933 S.W.2d 863
PartiesIn re the Marriage of James C. COLEBERD, Petitioner-Respondent, v. Linda Ann COLEBERD, Respondent-Appellant. (Two Cases.)
CourtMissouri Court of Appeals

Elvin S. Douglas, Jr., Crouch, Spangler & Douglas, Harrisonville, for respondent-appellant.

Michael X. Edgett, Cason, Edgett & Mahan, Clinton, for petitioner-respondent.

BARNEY, Presiding Judge.

Respondent Linda Ann Coleberd (Wife) appeals the trial court's judgment dissolving her marriage to Petitioner James C. Coleberd (Husband). 1 The parties were married approximately 30 years and they have two emancipated children. At time of trial Wife was 54 and Husband was 57. Husband, a Wife raises five points of trial court error in Case No. 20196. She contends that the court erred in finding and holding that: (1) Husband's corporate stock in Mark Twain Cave, Inc., was a non-marital asset; (2) Husband's inherited and gifted interest in the assets of a partnership (consisting primarily of real property being leased to Mark Twain Cave, Inc.) was a non-marital asset; (3) Wife had no interest in the real property on which the cave enterprise was operated even though, in 1990, Husband titled his interest in the property as a tenancy by the entirety with Wife; (4) Wife was not entitled to maintenance; and (5) the marital properties should be divided equally.

physician, had recently suffered a heart attack. Husband's earnings at trial time approximated $129,000.00 a year, inclusive of benefits, while Wife earned approximately $40,000 a year as head nurse in a nursing home. Additionally, Husband receives income from his interest in Mark Twain Cave, Inc., a corporation operating a tourist attraction in Hannibal, Missouri. While Husband studied in medical school and during his internship wife worked outside the home, helping support the family.

In Case No. 20838 Wife asseverates that the trial court erred in denying her motion for temporary maintenance and attorney fees during the pendency of this appeal. This Court consolidated the appeals but addresses them separately in this opinion.

Case No. 20196

The trial court awarded Husband non-marital properties consisting of 32.2 percent of the stock of Mark Twain Cave, Inc., together with all the real estate (being 32.2 percent of the totality of the real estate being leased to the corporation). The trial court then assessed Husband's combined interest in the stock of the corporation and the partnership assets, inclusive of the real estate, at $688,174.00. Additionally, the trial court set off to Husband his interest in a duplex property inherited from his mother with a net value of $37,500.00.

As her separate property, the trial court set off to Wife an Edward D. Jones account and a Merrill-Lynch account in the combined amount of approximately $50,000.00.


Wife received marital assets consisting of the marital home, a recreational cabin, a 1989 Cadillac, various furnishings and personal items, together with savings and retirement accounts, and an Internal Revenue Service refund check, all totaling $434,238.81. Included in this amount were debts allocated to Wife consisting of approximately $2,201.11 for miscellaneous charges and real estate taxes on the marital home and recreational cabin, together with the mortgage on the marital home in the amount of $113,679.57.

Husband received marital assets consisting of a 1990 Lincoln Towncar and a 1984 Ford F150, personal items and furnishings, his interest in a condominium, together with certain savings and retirement accounts, all totaling $434,238.81. Included in this total were debts in the approximate amount of $166,500.00, exclusive of his attorney fees. Additionally, Husband was allocated an indebtedness resulting from a failed business venture arising from the building and operating of a Holiday Inn motel complex in Clinton, Missouri. Industrial Development bonds had been issued in the sum of $3,900,000.00 to raise money for the project and Husband guaranteed 45% of the issuance. The trial court found that the money generated from the foreclosure was inadequate to pay off an indeterminate amount of indebtedness now owed to the Federal Deposit Insurance Corporation (F.D.I.C.). 2

No maintenance award was made to Wife although requested by her. However, the trial court awarded her attorney fees in the amount of $5,733.63.


The standard of appellate review is found in Rule 73.01(c), Missouri Rules of Civil Procedure (1996) and is governed by the principles of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). This same standard of review applies to decrees of dissolution of marriage. In re Marriage of Betz, 880 S.W.2d 618, 619 (Mo.App.1994). "The decree will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Id. "The division of marital property is discretionary with the trial court and we must defer to the court's judgment unless it is an abuse of discretion." Kettler v. Kettler, 884 S.W.2d 729, 731 (Mo.App.1994). "Due regard is given to the trial court's determination on the credibility of witnesses." In re Marriage of Gardner, 890 S.W.2d 303, 304 (Mo.App.1994). "The trial judge is in a better position than this court to determine the credibility of the parties, their sincerity, character and other trial intangibles which may not be shown by the record." Id. at 304-05. "The trial judge, as the trier of fact, can disbelieve testimony even when uncontradicted." Id. at 305.

Wife's first three points center around the trial court's non-marital classification of Husband's 58/180th (32.2 percent) interest in the shares of stock of Mark Twain Cave, Inc., and the same proportionate interest in 350 acres of land on which is located the Mark Twain and Cameron Caves in Marion County, Missouri, upon which a tourist attraction has been operated by Husband's family since the 1920s.

Husband's legal interest in the personal and real property relating to the cave enterprise was acquired during the course of the marriage from gifts and inheritances derived from Husband's mother and aunt.

In late 1982 a partnership was formed under the name of Mark Twain Cave for the purpose of operating the cave. However, title to the real property was retained in the respective individual names of Husband, his brother and his cousin.

The partnership continued operating the tourist attraction and all operating expenses and improvements to the property were paid from earnings derived from the cave operations. Income was distributed annually to the partner-relatives. However, some of the earnings were retained by the partnership, as cash reserves for future needs of the cave enterprise.

On January 13, 1986, a corporation, Mark Twain Cave, Inc., was formed. It is not clear how many shares of stock Husband received, although it is certain that Husband received a 32.2 percent interest in the stock of the corporation. 3 By amendment to the partnership agreement, all of the operating assets of the partnership, including certain retained earnings or cash reserves, were transferred to the corporation. The real property upon which the concession was operated, and in which Husband had a 32.2 percent interest, was not conveyed to the new corporation. The ownership of the real property continued to be held in the individual names of Husband, his brother and his cousin until 1990. In that year Husband conveyed his interest in the real property into a tenancy by the entirety with his wife.

It is clear from the evidence that Wife never contributed any separate funds or assets to the cave operations and had never participated in either the partnership management or the corporate management thereafter. It is also clear that save for occasional partnership and board of directors' meetings, Husband did not participate in the day-to-day management of either the partnership or corporation.

In Point One, Wife asserts that the trial court erred in finding that the stock of Mark Twain Cave, Inc., was Husband's non-marital property. She argues that assets, consisting of earnings from the partnership's operating of the cave enterprise prior to incorporation, went into the formation of the corporation and consequently under the "source of funds" rule, she has a marital interest in the stock of the corporation. 4

In her second point, she also asseverates that the trial court was in error when it determined that Husband's interest in the assets of the Mark Twain partnership was non-marital property. She argues that although Husband initially acquired his interest in the partnership by gift and inheritance, his earnings from the partnership constituted marital income. She states, however, that not all of these earnings were distributed to the partners. Therefore, she contends that the accumulated assets that were not distributed to the parties constituted marital assets and, therefore, all of Husband's interest in the partnership thereby became marital property.

In her third point Wife argues that in 1990 her Husband gifted her a tenancy by the entirety interest in his interest in the 350 acres located in Marion County, Missouri. Therefore, she avers that Husband's interest in the real property, upon which the cave enterprise is operated, should be classified as marital property.

Being interrelated, the points are reviewed together.

"All property acquired by either spouse subsequent to the marriage, and prior to a decree of legal separation or dissolution is presumed to be marital property regardless of whether title is held individually or jointly." Kettler, 884 S.W.2d at 731; see also § 452.330.3. 5 "This presumption is overcome only by clear...

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