Dildy v. Dildy, 12645
| Decision Date | 29 March 1983 |
| Docket Number | No. 12645,12645 |
| Citation | 650 S.W.2d 324 |
| Parties | Sims G. DILDY, Petitioner-Respondent, v. Marnelle T. DILDY, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Loren R. Honecker, Springfield, for respondent-appellant.
John R. Lewis, Mark D. Wheatley, Springfield, for petitioner-respondent.
This action for dissolution of marriage was instituted by Sims G. Dildy, petitioner below and respondent here, against his wife Marnelle T. Dildy, respondent below and appellant here. The parties will be referred to by their first names.
Marnelle's first point challenges the propriety of the trial court's treatment of certain shares of stock in various corporations listed in "Security Account No. 59910703" with the investment firm of Merrill Lynch, Pierce, Fenner & Smith, Inc. The security account was held in the names of Sims and Marnelle as "joint tenants with right of survivorship." The trial court treated as "marital property" (§ 452.330, par. 2) 1 shares in the security account having an aggregate value of $21,616. The remaining shares in the security account, having an aggregate value of $30,211, were set aside to Sims, as "his property" or as "nonmarital property." It is the position of Marnelle that all of the shares in the security account were "marital property" and should have been divided in the manner prescribed by § 452.330, par. 1.
The parties were married on April 11, 1959, and separated in the summer of 1980. The dissolution action was filed in June 1980 and tried in September 1981. The stocks listed in the security account had a market value, on August 28, 1981, of $51,827 and consisted of holdings in 12 corporations. The trial court set aside to Sims all of the shares in three corporations and some of the shares in four corporations, as shown by the following table:
Column 1 Column 2 Column 3
Shares in Shares set aside Shares treated
Corporation Security Account to Sims as non- as marital
--------------------- No. 59910703 marital property property
---------------- ---------------- --------------
Altec Corp. 400 400
Ark-La Gas 200 124 76
Carolina Power LGT 25 25
Colt Inds. Inc. 104 104
E Systems Inc. New 400 400
Safeguard Scientifics 50 50
Safeg. Bus. Syst. 75 75
Seneca Oil Co. 200 200
So. Cal. Edison 100 48 52
Std. Oil of Calif. 80 40 40
Texas Instruments 50 20 30
Union Carbide Corp. 50 50
--------------------------------------------------
Aggregate value $51,867 $30,211 $21,616
Prior to the marriage Sims owned the shares shown in column 2. At the time of trial all of the shares shown in column 1, according to Sims, were carried in the name of Merrill Lynch, the brokerage firm, that is, in the "street" name. Sims testified that the security account was opened in 1978 or 1979 pursuant to discussions between him and Marnelle. Marnelle told Sims that
Sims testified that he purchased the Altec stock in 1953. During direct examination by his own attorney Sims gave the following testimony: Sims testified that he considered 124 shares of Ark-La Gas to be nonmarital property "because it was purchased prior to the marriage and that same reason applies to all of them," i.e. the rest of column 2.
There was no testimony with regard to the handling of the original certificates represented by column 2. With respect to column 1, Sims said that the shares "were titled in Merrill Lynch's name." On cross-examination Sims admitted that in answering a set of interrogatories he had referred to all of the shares shown in column 1 as "jointly owned stocks."
There was no evidence concerning what documents, if any, were executed in conjunction with the opening of account 59910703. Sims testified that Marnelle testified that she did not remember whether she signed "any papers" at the time "the security account was placed in joint names."
There was evidence that other stock holdings of Sims, including some acquired by him prior to the marriage, were retained in his sole name. The parties agreed that those holdings were nonmarital property. Although Sims kept a meticulous history of the respective sources and descriptions of those stocks, and others which were inherited by Sims during the marriage, he made no mention of the sources or dates of acquisition of the stocks shown in column 3 which, both parties concede, were marital property.
The statement issued by Merrill Lynch, showing the condition of security account 59910703 on August 28, 1981, listed the share holdings as they are listed in column 1. On that statement, prior to the trial, Sims made marginal notations so as to set forth the information shown in column 2. Sims had another Merrill Lynch account, No. 59911388, which was carried in his sole name, and Marnelle does not challenge the trial court's treatment of that account as nonmarital property.
The issue is whether the stocks shown in column 2, which (or at least their equivalents) were owned by Sims prior to the marriage, became marital property by reason of the conduct of Sims in placing them in security account 59910703. The issue must be considered in light of the following combination of factors: (a) the security account was titled in Sims and Marnelle as joint tenants; (b) the security account contained other stocks which were admittedly marital property; and (c) all of the stocks in the security account were titled in the street name of Merrill Lynch. 2 For the reasons which follow, this court holds that all of the stock in the security account, including those listed in column 2, were marital property and that Marnelle's first point is sound.
Missouri cases dealing with the classification of corporate stock as marital property or nonmarital property for dissolution purposes include Davis v. Davis, 544 S.W.2d 259 (Mo.App.1976); Jaeger v. Jaeger, 547 S.W.2d 207 (Mo.App.1977); and Hebron v. Hebron, 566 S.W.2d 829 (Mo.App.1978).
In Davis the husband acquired stock in an oil company before the marriage. The title to the stock remained in the husband during the marriage. Although recognizing the principle that the conduct of the parties with respect to property may evidence the clear intention that separate property be contributed to the community or the other spouse," the court held there was no evidence to show that the "status" of the oil company stock changed during the marriage and it remained separate property.
In Jaeger the court held: (1) stocks owned by the husband prior to the marriage, "which had been retained solely in his name throughout the marriage" and "retained their identity as [the husband's own property]," were separate property; (2) stocks acquired during the marriage with funds not shown to be derived from the husband's separate property were marital property because property acquired during the marriage is presumed to be marital property and the person attempting to overcome the presumption failed to carry the burden of showing that the property "comes within the exceptions listed in § 452.330, par. 2"; (3) stocks acquired during the marriage from funds derived from the commingled sale of separate and marital property were marital property irrespective of the state of title to the newly acquired assets. With regard to category (3) the court held that the "exchange" exception found in § 452.330, par. 2(2), did not apply when a person uses both his pre-marriage property and marital property to purchase new property during the marriage. The court said, at p. 211: 3
In Hebron the following stocks were held to be marital property: (1) shares of American General stock purchased during the marriage, titled jointly in the husband and wife, but paid for in part by the proceeds of the sale of land which had been given to the wife but which the wife conveyed to herself and her husband before the land was sold; (2) 357 shares given to the husband and wife "in their joint names," shortly after the marriage, by the wife's father. The court pointed out that "a gift to both spouses is presumed to be marital property." One of two such presumptions, said the court, is created by § 452.330, par. 3, and "clear and convincing" evidence...
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