Drikow v. Drikow

• Decision Date: 26 December 1990
• Docket Number: No. 57895,57895
• Citation: 803 S.W.2d 122
• Parties: In re The Marriage of Dorothy Pearl DRIKOW, Petitioner-Respondent, and Marlyn Bernard Drikow, v. Marlyn Bernard DRIKOW, Respondent-Appellant, and Kevin Andrew Drikow, et al., Defendants.
• Court: Missouri Court of Appeals

Page 122

803 S.W.2d 122

In re The Marriage of Dorothy Pearl DRIKOW, Petitioner-Respondent and Marlyn Bernard Drikow, v. Marlyn Bernard DRIKOW, Respondent-Appellant and Kevin Andrew Drikow, et al., Defendants.

No. 57895.

Missouri Court of Appeals,

Eastern District,

Division Two.

Dec. 26, 1990.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Jan. 29, 1991.

Application to Transfer Denied March 5, 1991.

James B. Herd, St. Louis, for respondent-appellant.

Marion Harvey Pines, Clayton, for petitioner-respondent.

GARY M. GAERTNER, Presiding Judge.

In this appeal, husband, Marlyn Drikow, appeals an order from the Circuit Court for St. Louis County dissolving his twenty-eight year marriage to wife, Dorothy Drikow. Husband alleges that the circuit court erred in not awarding him certain property as his separate property, in its valuation of his business, and in awarding maintenance to wife. We affirm in part and reverse in part.

Husband and wife were married on April 29, 1961. Four children were born of the marriage. At the time of the trial court's order, the ages of the children ranged from 17 to 26. The two youngest children, Gary (17) and Roy (20), were still dependent upon husband and wife and the trial court awarded custody of Gary to husband and custody of Roy to wife. The trial court also awarded wife $250.00 per month as child support for Roy. This portion of the trial court's order has not been appealed.

The marriage of the parties' was a rocky one. The trial court found that husband was extremely tight-fisted with money; requiring wife to account to him for virtually every penny she spent--even to the point of demanding receipts for all expenditures and encouraging their children to check up on her spending habits and report them to him. The trial court also found that in 1978 husband stopped engaging in any form of physical intimacy with his wife and refused to engage in any social life with his wife. Husband worked long hours at his store, Marlin's Sport Shop, Inc., and, when not working, was so obsessed with hunting and fishing that "they took precedence over virtually every other form of social intercourse" with wife. Although wife also engaged in various forms of marital misconduct, the trial court found that husband's actions were "extreme" and "so pervasive during the parties' marriage that the court hereby accords great weight thereto in its consideration of factors in the distribution of marital property."

On December 28, 1987, wife filed a petition for dissolution of marriage in the Circuit Court for St. Louis County. The case was heard on June 28 and 29, 1989, and, on December 15, 1989, the trial court issued its findings of fact and conclusions of law, dissolving the marriage, distributing property and awarding maintenance and child support. This appeal followed.

Husband's first two points allege error in the trial court's failing to set aside certain checking accounts, savings accounts, money market accounts and certificates of deposit as his separate property in that they were inherited property.

In 1982, husband suffered the loss of his mother and sister. Shortly after their deaths, husband received sums of money totaling close to $130,000.00. Husband deposited these funds into an account at Jefferson Savings and Loan. Although this account was opened during the parties' marriage, the account only bore husband's name. Husband also inherited real property on Bonnie Avenue in St. Louis. This real property was rented out and the rental income was used to partially retire the property's mortgage.

In 1988, husband's aunt died leaving him close to $79,000.00. This amount was also deposited into the Jefferson Savings and Loan account.

The trial court found that the Jefferson Savings and Loan account had been used as a clearing house for investments by the husband, to retire the mortgage on the marital home, to purchase certain real property and to make loans to the parties' sporting goods store. Although husband placed his childrens' names on some of the investments, the trial court found that the children did not know anything about the investments other than that their names were on them; Husband exercised complete control. Interest earned on these investments totaled close to $119,000.00. The trial court found that the interest earned on the investments was marital property and was "completely and thoroughly commingled in this account with other income and interests received over the years so that it is impossible to trace respondent's inheritance [other than the 1988 inheritance which was awarded as separate property] and to segregate them from the thousands of dollars in marital interest together with his marital earnings commingled during these years." The trial court, thus, declared the 1982 inheritance, of which $78,849.01 remained, to be marital property.

Husband first argues that interest earned on separate property is separate property. The basis of this claim is the 1988 change made in RSMo § 452.330.2(5).

In 1986, RSMo § 452.330.2 stated, in pertinent part:

2. ... "marital property" means all property acquired by either spouse subsequent to the marriage except:

(1) Property acquired by gift, bequest, devise, or descent;

(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;

. . . . .

(5) The increase in value of property acquired prior to the marriage.

In In re Marriage Schatz, 768 S.W.2d 607 (Mo.App., S.D.1989), the Southern District of this court held that "increase in value" in subparagraph 5 of § 452.330.2 did not cover income from separate property and stated that such income was to be considered by courts as marital property. Schatz, 768 S.W.2d at 611.

In 1988, RSMo § 452.330.2(5) was modified to allow non-marital property to include the "increase in 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." Husband claims that this modification overruled the ruling in Schatz and was intended to change the meaning of "increase in value" to include income from separate property. We disagree.

The changes in RSMo § 452.330 went beyond the modification that occurred in RSMo § 452.330.2(5). The legislature also added RSMo § 452.330.4 which states that "property which would otherwise be non-marital property shall not become marital property solely because it may have become commingled with marital property." By reading RSMo § 452.330.2(5) and RSMo § 452.330.4 together, the intent of the legislature in adding the language to RSMo § 452.330.2(5) becomes clearer. The legislature did not intend to change the meaning of "increase in value", but to provide that marital assets used to increase the value of non-marital assets, and thereby become commingled with non-marital assets, may be recovered to the extent of the contribution made.

A good example of the legislative intent of this language is provided by what the trial court below did with the inherited Bonnie Avenue property. The court awarded the property to husband as separate property but recognized that marital property, the rents collected from it, was used to retire part of the mortgage--thus increasing the value of the non-marital property. The court correctly declared that portion of the Bonnie Avenue home's value attributable to the retired mortgage, $3,500.00, to be marital property. A similar result would have been reached if, rather than putting money into the home, the wife had painted the home and increased its value in that manner. The increase in value due to her labor would be marital property. This is what the legislature intended and not a change in the meaning of "increase in value." Point denied.

Husband next claims that the trial court erred in finding that the Jefferson Savings and Loan account and other investments were marital property in that RSMo § 452.330.4 requires more than a mere commingling to make non-marital property into marital property. We agree with husband's statement of the law but disagree with its application here.

Prior to the enactment of RSMo § 452.330.4, this court held that commingling of separate property with marital property transmuted the separate property into marital property. Cartwright v. Cartwright, 707 S.W.2d 469, 472 (Mo.App., E.D.1986). As we noted in In re Marriage of Smith, 785 S.W.2d 764 (Mo.App., E.D.1990), RSMo § 452.330.4 was intended to address this type of situation by making the commingling, in and of itself, insufficient to transmute separate property into marital property. Id. at 766. In Smith, the commingling combined with the retitling of separate property into both parties' names was found to be "more" than just a mere commingling. Id.

The case at hand also involves more than a mere commingling. The trial court found that the Jefferson Savings and Loan account was initially separate property derived from husband's inheritance. With the exception of a few withdrawals made soon after husband received the inheritances that the court found could be directly attributed to inherited property, the inherited money was invested into certificates of deposit, money market accounts, and loaned with interest to the family business. The interest, which was marital property, was then commingled with the inherited property. These commingled funds were then invested over and over again to the extent that the trial court found that it was "impossible" to trace husband's inheritance and segregate the inheritance from the marital interest. The court, thus, held that the property was marital "relying, not solely upon commingling, but also upon the failure of [husband] to...