Crosby v. Crosby, s. 70563
Decision Date | 25 February 1997 |
Docket Number | Nos. 70563,70318,s. 70563 |
Citation | 960 S.W.2d 5 |
Parties | Larry CROSBY, Appellant, v. Andrea K. CROSBY, Respondent. |
Court | Missouri Court of Appeals |
W. Morris Taylor, Clayton, for appellant.
Timothy M. Joyce, Warrenton, for respondent.
RHODES RUSSELL, Presiding Judge.
Larry Crosby ("Husband") appeals from a dissolution judgment which set apart to his former wife, Andrea Crosby, ("Wife") ownership of certain real property which had been conveyed by her to him prior to their marriage. Husband also appeals the award of attorney's fees on appeal granted to Wife by the trial court. We find no error and affirm the trial court.
During a previous marriage, Wife purchased 12.99 acres of land with a small two bedroom house on Highway B in Warrenton. Wife used $23,000 she received from a personal injury settlement to purchase the property in full. When that marriage was dissolved in 1991, the parcel was set apart to her as her separate property. Wife's first husband, who had been ordered by the court to pay certain remaining marital debts, filed bankruptcy. Creditors of the first husband attempted to collect the debts from Wife. Wife borrowed $7,000, secured by the Highway B property, to pay her personal debts.
Husband and Wife began dating in early 1992. On May 12, 1992, the parties entered into a sales contract whereby Husband would "purchase" the Highway B property from Wife for $7,275.45, the remaining loan balance on the property. The estimated value of the property at that time was between $40,000 and $50,000. The transaction was closed at a title company and the deed was duly recorded.
Husband acknowledged that his purchase of the Highway B property was a "bargain." He asserted he made the purchase for business reasons. Wife, however, testified the transfer was made in order to keep her former husband's creditors from executing on the property. The banker, with whom the parties consulted when transferring the land between themselves, testified that one of the parties told him of this concern and further stated that an attorney had suggested this course of action. The banker suggested to the parties that a quitclaim deed could be used to convey the land back to Wife in the event something happened to Husband. The parties said they would discuss that later and made no agreement at that time. Husband said he never agreed to reconvey the land, while Wife asserted that Husband had agreed to give the property back to her whenever she requested.
The parties married in August 1992. The property was refinanced in February 1993 in both parties' names. The couple had two checking accounts, one which Wife primarily used and one which Husband primarily used. Each deposited his or her own paycheck into his or her own primary account. In addition, Wife's premarital personal injury settlement funds, for which she received a monthly check, were deposited into her account. The loan payments and real estate taxes were paid out of Wife's account. Husband never made any of the loan payments, but stated that Wife made the payments in lieu of paying him rent for her living on the Highway B property. After their separation in June 1995, Husband left the property and all subsequent loan payments continued to be made by Wife. Husband filed for dissolution on June 30, 1995.
At the February 14, 1996 dissolution hearing, both parties claimed ownership of the Highway B property. Husband offered the deed as proof of his ownership and argued that any evidence beyond the four corners of the deed was parol evidence and inadmissible. Wife countered that the transaction was a "sham" as Husband had previously represented that he would reconvey the land to her and was now stating he never had any intention of doing so.
The court admitted the evidence of the parties' prior discussions and alleged agreement. In its judgment, the court stated, "It is further ordered that the deed ... be set aside and rescinded, the Court having found that the conveyance of the property to the Petitioner (Husband) was a result of Petitioner's fraud." Wife was awarded the parcel and Husband appeals.
After judgment, Wife filed a motion for attorney's fees on appeal and was awarded $1,500 by the trial court. Husband appeals the granting of those fees. The two appeals are consolidated.
Our review is governed by the principles found in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The judgment of the trial court must be affirmed unless there is no substantial evidence to support it, it is against the weight of evidence or it erroneously declares or applies the law. Romkema v. Romkema, 918 S.W.2d 294, 296 (Mo.App.1996).
Husband makes four arguments regarding the trial court's decision to award the Highway B property to Wife. He maintains the court's usage of the word "fraud" in the judgment was error. Husband first argues that fraud was not pled by Wife and can, therefore, not be considered in dividing this property. It is true that fraud, as a cause of action, must be pled with particularity. Rule 55.15. However, fraud was not the cause of action here. This was a dissolution proceeding in which the court was dividing the assets of the parties, as it is required to do under § 452.330 RSMo 1994. 1 In determining that the Highway B property was the separate property of Wife, the court considered the relevant factors found in § 452.330. These factors included how the deed was procured and the details surrounding the conveyance. The court heard testimony and viewed evidence that Husband "purchased" the land, valued over $40,000 for $7,275.45, and had Wife, during the marriage, make the mortgage payments as rent for her living on the property with Husband.
We view the evidence as favorable to the decree, disregard contrary evidence and defer to the trial court even if the evidence could support a different conclusion. Bixler v. Bixler, 810 S.W.2d 95 (Mo.App.1991). The trial court has the prerogative to determine the credibility of each witness and can accept or reject all, part, or none of the testimony. Schaffer v. Haynes 847 S.W.2d 814, 820 (Mo.App.1992). Finding it unlikely that Wife would pay rent to Husband, much less convey the parcel for less than one-quarter of its value, the trial court rejected Husband's assertions and set apart the land to Wife as her separate property. The credible evidence was that the transfer of the parcel to Husband was made for the convenience of the parties and lacked adequate consideration.
Husband also cites Schultz v. Curson, 421 S.W.2d 205 (Mo.1967) for the proposition that a deed made for the purpose of avoiding creditors is not void for fraud. We agree, but the fraud found by the trial court is from Husband's misrepresentation at the time of Wife's execution of the deed that he would reconvey the property to Wife. The court did not find that the parties' motive to transfer the parcel to Husband to avoid Wife's creditors was fraudulent.
Second, Husband contends that he never gave his implied consent to try a fraud claim, contrary to allegations in Wife's brief. This point is now moot, as we have determined the pleading of fraud is not required in this dissolution action.
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...contrary are disregarded. Id. We defer to the trial court even if the evidence could support a different conclusion. Crosby v. Crosby, 960 S.W.2d 5, 8 (Mo.App. E.D.1997). We defer to the trial court to determine the credibility of the witnesses, accepting or rejecting all or any part of the......