Dorn v. Heritage Trust Co.

• Citation: 24 P.3d 886,2001 OK CIV APP 64
• Decision Date: 27 April 2001
• Docket Number: No. 93,448.,93,448.
• Parties: Bertha Z. DORN, Plaintiff/Appellant/Counter-Appellee, v. HERITAGE TRUST COMPANY, Trustee of the Ralph H. Dorn Trust, Defendant/Appellee/Counter-Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

24 P.3d 886

2001 OK CIV APP 64

Bertha Z. DORN, Plaintiff/Appellant/Counter-Appellee, v. HERITAGE TRUST COMPANY, Trustee of the Ralph H. Dorn Trust, Defendant/Appellee/Counter-Appellant.

No. 93,448.

Court of Civil Appeals of Oklahoma, Division No. 1.

April 27, 2001.

Donelle H. Ratheal, Ratheal & Campbell, Oklahoma City, OK, for Plaintiff/Appellant/Counter-Appellee.

Laura Haag McConnell, Byron K. Linkous, Hartzog Conger & Cason, Oklahoma City, OK, for Defendant/Appellee/Counter-Appellant.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

OPINION

ADAMS, Presiding Judge:

¶ 1 After the Decree of Divorce was filed dissolving the fifty-three year marriage of Bertha Z. Dorn (Wife) and Ralph Dorn (Husband), Wife filed this appeal, alleging error in the trial court's determination, valuation and division of marital property and its retroactive modification of her temporary support alimony. In his counter-appeal from the same decree, Husband alleges only that Wife's long-term care insurance proceeds should have been treated as marital property.¹

¶ 2 Our standard of review for the issues raised in both appeals requires us to review all of the evidence presented to the trial court and allows us to disturb the trial court's decision only if that decision is clearly against the weight of the evidence or an abuse of discretion. Mocnik v. Mocnik, 1992 OK 99, 838 P.2d 500. Because a divorce is an action of equitable cognizance, the trial court is vested with wide discretion in dividing the property. Dixon v. Dixon, 1996 OK CIV APP 61, 919 P.2d 28. Applying that standard, we must review the record for any abuse of discretion and determine if the findings of the trial court are supported by the evidence.

FACTS

¶ 3 Husband was hospitalized and in need of short-term medical care due to an amputation of his leg when he requested Sandy, one of two adult daughters born during the parties' marriage, to search for his disability insurance policy at home. While looking for the policy, Sandy discovered what she believed was evidence of her father's mismanagement as trustee of a trust created by his parents for which he was the income beneficiary and his two daughters were contingent beneficiaries. Sandy told her mother about her findings, and in September of 1995, Wife filed a separate maintenance action and an application for a temporary order requesting, inter alia, support alimony from Husband.

¶ 4 Husband denied Wife's need for support in his combined answer and cross-petition for divorce. Upon hearing Wife's application, the trial court determined that each party had sufficient liquid assets in their separate, revocable trusts for their monthly expenses, authorized each to liquidate and expend trust assets worth up to $3,000 per month, if needed, and ordered Husband to continue payment of the parties' health, home, and automobile insurance. Because Wife and Sandy planned to live together in a home being built with funds generated from the sale of assets Wife had withdrawn from her trust at the time of separation, the trial court awarded Husband the parties' handicap-equipped condominium and van.

¶ 5 A year later, Sandy and her sister filed separate actions against Husband, as Trustee of several trusts, alleging he had misappropriated trust funds. Judgment was ultimately entered in favor of the two daughters, and Husband appealed that decision.

¶ 6 At a hearing which occurred some three and one-half years after this action was filed, the trial court announced its decisions on two legal issues that had been submitted by the parties' briefs. The trial court concluded that the assets in the parties' respective revocable trusts should be treated as marital property and determined the dates upon which to value those and the other assets in the marital estate. The trial court also determined that the short-term/long-term care insurance policies (hereinafter, disability policies) purchased during the parties' marriage and issued in their individual names would be set aside as the separate property of the spouse covered by each respective policy. The trial court also announced that any funds recovered from Husband's trust as a result of the daughters' judgment would be deducted from that trust before determining the size of the marital estate and making a division.²

¶ 7 Thereafter, the parties filed additional briefs, attaching evidentiary material to support their arguments concerning property division and support alimony issues. Because both parties were too frail to withstand the stress of a trial, counsel for the parties agreed to submit "trial briefs and proffered exhibits" to the trial court for its decision on the remaining issues.³ ¶ 8 On July 2, 1999, the trial court filed a Decree of Divorce with an attached "Marital Balance Sheet," which dissolved the parties' marriage based on incompatibility, set aside as separate property certain gifts of jewelry and inherited real and personal property to each party, denied Wife support alimony, set values on the marital property, and divided the marital property equally between the parties. In doing so, the trial court ordered real estate located in the Bricktown area of Oklahoma City, Oklahoma (the Bricktown Property) sold, with the net proceeds to be divided equally between the parties, gave Husband a credit for $11,275 which he had paid as temporary support alimony while the action was pending, and awarded Wife $32,129 alimony in lieu of property in order to equalize the property division.⁴ Twenty-eight days later, Wife filed a Motion to Reconsider in the trial court and a Petition in Error. Husband filed a timely counter-appeal. The trial court denied Wife's Motion to Reconsider approximately nine months later.

ANALYSIS

¶ 9 As a preliminary matter, we must first address Husband's motion to dismiss Wife's appeal, which was deferred for decision until now by the Oklahoma Supreme Court. According to Husband, Wife's Motion to Reconsider must be treated as a motion for new trial, and because she did not raise any of the errors argued in this appeal in that motion, she has not preserved any error for review, citing 12 O.S.1991 § 991(b).⁵ However, even if we were to conclude that Wife's motion must be considered a "motion for new trial," we do not agree that § 991(b) would limit her arguments on appeal to those grounds asserted in her motion.

¶ 10 Automatic application of the restrictions imposed in § 991(b) to new trial motions filed more than ten days after judgment ignores the provisions of § 991(a).⁶ Those provisions clearly contemplate a motion for new trial that extends the time to file an appeal until the motion has been decided by the trial court. Wife's "Motion to Reconsider," filed 28 days after the filing of the Decree of Divorce, was the functional equivalent of a "term-time motion to vacate" which did not extend her appeal time and, pursuant to 12 O.S.1991 § 1031.1, did not need to be based on any statutory ground. See Schepp v. Hess, 1989 OK 28, 770 P.2d 34

. Husband's motion to dismiss Wife's Petition in Error is denied.

WIFE'S APPEAL

¶ 11 In her first proposition, Wife argues that the jointly acquired property she and Husband transferred to her revocable trust by quitclaim deed became her separate property and is not subject to equitable division. She argues Manhart v. Manhart, 1986 OK 12, 725 P.2d 1234, held that the presumption for jointly acquired property is prima facie only and may be overcome by the evidence and recognized that 32 O.S.1981 §§ 5 and 6 (now 43 O.S.1991 §§ 204 and 205) allow inter-spousal conveyances to remove jointly acquired property from the marital estate. According to Wife, the transfers to "the parties' respective trusts rebut the presumption of joint property." She also argues, relying upon Limb v. Aldridge, 1999 OK CIV APP 31, 978 P.2d 365, that her designation of a contingent trust beneficiary other than herself, considered with the quitclaim deed, makes Husband's "illusory trust" argument moot.

¶ 12 Limb does not concern the determination of marital property in the context of a divorce, and therefore is inapplicable to this case. Nor do we need consider Wife's argument that the parties' quitclaim deed was based on mutual consent, because even if we were to decide that question in her favor, which we do not, her appellate argument would still fail based on our interpretation of Manhart.

¶ 13 Manhart first determined that the trial court's conclusion-the conveyance of the wife's interest in certain oil properties and common stock to the husband "occurring after their final separation" was bona fide, i.e., free from fraud, undue influence and coercion⁷ — was not clearly contrary to the weight of the evidence. After approving the wife's assertion that the mere vesting of complete title in a spouse does not remove jointly acquired property from the ambit of 12 O.S. 1981 § 1278 (now 43 O.S.Supp.1992 § 121)⁸ and discussing the statute's interpretation and the presumption for jointly acquired property, Manhart distinguished prior "inter-spousal conveyance" cases all holding that the property was jointly acquired, stating, "[t]hese cases are clearly distinguishable from the case at bar; in each the spouses continued marital relations for a significant period after the transfer." 1986 OK 12, ¶ 39, 725 P.2d at 1240.

¶ 14 Immediately following that statement, Manhart explained:

It is our belief that the better-reasoned rule is that 32 O.S.1981 §§ 5 and 6 [now 43 O.S.1991 §§ 204 and 205], in allowing a spouse to convey his or her interest in property to the other and alter the legal relationship as to property, can remove jointly acquired property from the marital estate. Whether the property remains the separate property of the spouse to whom it was conveyed, depends on how the spouses treat the property. If they jointly use and manage the property, then it may be considered "jointly

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