Davis v. Davis
| Decision Date | 01 April 2003 |
| Docket Number | No. ED 80677.,ED 80677. |
| Citation | 107 S.W.3d 425 |
| Parties | Helen DAVIS, Respondent, v. Gary DAVIS, Appellant. |
| Court | Missouri Court of Appeals |
Arthur H. Nissenbaum, Clayton, MO, Benicia Baker-Livorsi, St. Charles, MO, for appellant.
Susan K. Roach, Law Offices of Susan K. Roach, Chesterfield, MO, for respondent.
Appellant, Gary Davis ("husband") appeals from the decree of dissolution of his marriage to respondent, Helen Davis ("wife"). We affirm in part and reverse and remand in part.1
Husband and wife were married on January 1, 1995. No children were born from the marriage, but husband and wife both had children from previous marriages. The parties were separated on or about May 13, 2000, and wife petitioned for divorce on June 2, 2000. The trial was held on June 6, 2001 and on August 17, 2001. The trial court entered its decree of dissolution on October 12, 2001. Husband filed a "Motion for New Trial/To Set Aside the Judgment or, in the Alternative, Amend the Judgment," which the trial court denied.
The decree dissolved the marriage of husband and wife and divided their property and debt.
We will affirm the judgment of the trial court unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron 536 S.W.2d 30, 32 (Mo.banc 1976). We presume the trial court's division of marital property to be correct; and the party challenging the division of property has the burden to overcome this presumption. Tate v. Tate, 920 S.W.2d 98, 103 (Mo.App. E.D.1996). We view the evidence and reasonable inferences therefrom in the light most favorable to the verdict and disregard contradictory evidence. Schwartzkopf v. Schwartzkopf, 9 S.W.3d 17, 20 (Mo.App. E.D.1999).
Husband's first point on appeal argues the trial court erred in valuing the marital home at $312,000. Husband argues the trial court erred because there was not sufficient evidence to support the valuation of the home because the home required substantial repairs.
Owners of real estate are competent to testify to the reasonable market value of their real estate. In Re Marriage of Kovach, 873 S.W.2d 604, 608 (Mo.App. E.D.1993). However, the trial court is not bound to accept the owner's estimate of the real estate. Id. at 609. If there is contradictory testimony, we give deference to the trial judge, who is in a position to assess the credibility of the witnesses. Id.
Wife testified the fair market value of the home was $312,000. Husband testified the fair market value was approximately $260,000, but the home required extensive repairs. Husband argues the trial court abused its discretion in valuing the home at $312,000 because the trial court did not factor in the repairs the home required. Because wife's testimony and husband's testimony as to the value of the home was contradictory, we give deference to the trial judge. The trial court did not abuse its discretion in valuing the marital home at $312,000 because wife testified the fair market value was $312,000. Point denied.
Husband's second point on appeal argues the trial court erred in assessing the value of a time-share at $14,395. Husband argues the trial court erred because the parties stipulated on the record that the time-share had a value of $8,700 and that husband would pay wife $4,350 for her portion of the time-share. The following discussion concerning the time-share took place at trial:
[Wife's Counsel]: And you also have as marital property Polo Towers time-share; is that correct?
[Wife]: Yes.
[Wife's Counsel]: And do you know the value of that property or not?
[Wife]: No, I don't know the value.
[Wife's Counsel]: Okay. And do you want that property sold, or do you want your husband to buy out your interest?
[Wife]: He can buy out my interest.
[Wife's Counsel]: And have you and he discussed the fact that your interest agreed upon would be $4,350?
[Husband's Counsel]: I'm going to object to that, Your Honor, as to any agreement, because I think the agreements were gone when we started the trial.
[Trial court]: Agreement as to the disposition or agreement as to the valuation of the asset?
[Husband's Counsel]: Okay.
[Trial Court]: Which are you — Do you — Do you agree as to the valuation?
[Wife's Counsel]: I thought there was an agreement as to the distribution, but if there — if there is not, Your Honor, I would withdraw the question.
Husband's counsel, wife's counsel and the trial court then briefly discussed whether the parties did or did not stipulate as to the value of the time-share. The trial court allowed husband's counsel to discuss first with husband, then with wife's counsel off the record the status of any stipulation. After these discussions, the following transpired at trial:
[Trial court]: Okay. Did you — Did you all want to stipulate to any of this, or are we just trying all the issues?
[Husband's Counsel]: Your Honor, we will stipulate with regard to the Polo Towers, as suggested in here.
[Trial Court]: Okay. Great. Let's move on, please.
If parties enter into stipulations of fact, the stipulations are controlling and conclusive, and courts are required to enforce them. Buckner v. Buckner, 912 S.W.2d 65, 70 (Mo.App. W.D.1995). However, to be enforceable the stipulations must be clear as to content and purpose. Id. If the parties agree upon an item's value and wish to stipulate as to that value, the stipulation should clearly indicate the agreed-upon value. Id. "Stipulations save time and streamline the trial process only when the parties put forth the minor effort needed to make them understandable." Id.
In this case, the stipulations are far from clear as to content and purpose. Husband argues the parties stipulated on the record the time-share had a value of $8,700 and that wife would be paid $4,350 for her portion of the value. However, the parties never clearly indicated an agreed-upon value for the time-share. At trial, wife's counsel asked wife if she and husband had agreed that husband would pay wife $4,350 for her interest in the time-share. Husband's counsel objected at this time that the "agreements were gone" when the trial started. Wife never answered the question. Husband's counsel, after discussing the issue with husband and wife's counsel, stated "we will stipulate with regard to the Polo Towers, as suggested in here." This was the only evidence concerning the possible stipulation concerning the parties time-share. Neither wife nor husband ever testified as to a stipulated value concerning the time-share. We cannot enforce any agreed-upon stipulation because the parties did not make the stipulation clear as to purpose and intent or clearly state the agreed-upon value. Point denied.
In his third point on appeal, husband argues the trial court erred in awarding wife the Edward D. Jones/Putnam Advantage account ("Jones account") and the American Express mutual funds as separate property. The Jones account had an approximate value of $30,984 and the American Express mutual funds had an approximate value of $25,061. Wife received approximately $604 every month in child support from her previous husband. Prior to the marriage wife set up a separate checking account, in her name only, where she deposited the child support money. She would then transfer approximately $400 a month from that checking account into the Jones account or into the American Express mutual funds. Wife established the accounts for the costs of her children's education. Wife informed husband prior to the marriage of her plans to save for her children's education, and that she would continue to invest the money for the children's education during the marriage. Wife testified that husband agreed to this plan. Wife was awarded the Jones account and the American Express mutual funds as separate property.
In Missouri, any property acquired after the marriage and prior to legal separation or dissolution is presumed marital property. Section 452.330.3;2 Brady v. Brady, 39 S.W.3d 557, 561 (Mo.App. E.D.2001). "The presumption of marital property is overcome by a showing that the property was acquired by a method listed in [452.330.2]." Section 452.330.3. Marital property is defined as all property acquired during the marriage except:
(1) Property acquired by gift, bequest, devise or descent Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
Property acquired by a spouse after a decree of legal separation;
Property excluded by valid written agreement of the parties; and
The increase in the value of property acquired prior to the marriage or pursuant to subdivisions (1) to (4) of this subsection, unless marital assets including labor, have contributed to such increases and then only to the extent of such contributions. Section 452.330.2.
However, this is not an exclusive list of the exceptions to the presumption of marital property. Silcox v. Silcox, 6 S.W.3d 899, 903 (Mo.banc 1999). In addition to the exceptions listed in 452.330.2, public school teacher's retirement benefits and social security benefits are nonmarital property. Id. at 902; section 169.572.
Missouri follows the "source of funds rule." Hoffmann v. Hoffmann, 676 S.W.2d 817, 824 (Mo.banc 1984); Section 452.330.2(5). Accordingly, the character of property is determined by the source of funds used to finance the purchase. Hoffmann 676 S.W.2d at 824.
In a case concerning the division of property, the Western District held that a judgment for back child support from a previous husband is not marital property. Elliott v. Elliott, 621 S.W.2d 305, 308 (Mo. App. W.D.1981). In Elliott,...
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