Fields v. Fields

• Decision Date: 19 October 1982
• Docket Number: No. WD,WD
• Citation: Fields v. Fields, 643 S.W.2d 611 (Mo. App. 1982)
• Parties: Beverly FIELDS, Plaintiff-Respondent, v. Wendell FIELDS, Defendant-Appellant. 33004.
• Court: Missouri Court of Appeals

Page 611

643 S.W.2d 611

Beverly FIELDS, Plaintiff-Respondent, v.Wendell FIELDS, Defendant-Appellant.

No. WD 33004.

Missouri Court of Appeals Western District.

Oct. 19, 1982.

As Modified Nov. 30, 1982.

L.E. Atherton, Milan, for defendant-appellant.

R. Max Humphreys, Miller, Humphreys & Seidel, Trenton, for plaintiff-respondent.

Before SOMERVILLE, C.J., WASSERSTROM, J., and MOORE, Senior Judge.

SOMERVILLE, Chief Judge.

This dissolution of marriage case is here for appellate review a second time.On its maiden appeal the judgment of the trial court was affirmed insofar as it decreed dissolution of the marriage and awarded custody of the three minor children born of the marriage to the husband, but remanded for further proceedings by reason of its failure to properly identify, allocate and assign values to marital and nonmarital property.Fields v. Fields, 584 S.W.2d 163(Mo.App.1979).Upon remand, a new judgment was entered by the trial court on July 30, 1981, and the present appeal followed.

Once again the husband assumes the role of appellant.On this appeal he raises five points, all of which, in varying degree, relate to the trial court's allocation and valuation of marital and nonmarital property.Appellant's original brief herein was stricken for noncompliance with Rule 84.04(d) in light of Thummel v. King, 570 S.W.2d 679(Mo. banc 1978), with leave given appellant to file an amended brief.Of the five points, supra, raised in appellant's amended brief, three are devoid of any "citations of authorities".The points falling in this category question the values placed on two items of personal property constituting marital property and the qualifications of a witness who testified as to the value of certain marital and nonmarital real property.With respect to the three points mentioned, appellant offers no explanation for his failure to buttress them with "citations of authorities" as required by Rule 84.04(d).A careful examination of the points convincingly demonstrates that appellant's failure to cite authorities cannot be justified under any of the excusable grounds set forth in Thummel v. King, supra, at 687: "Thus, if the point advanced is not a matter of first impression and is not simply a matter of logic or policy or analysis of statutory or documentary language, as would be the case in the type of matters indicated above, the court on appeal need not search for precedential support to overrule the contention.If the point is one for which precedent is appropriate and available, it is the obligation of appellant to cite it if he expects to prevail.We suggest that if the point is one for which it is believed that precedent for or against it is unavailable, counsel would be well advised to specifically so state under the point in question, explaining why citations are unavailable."Due to the ever increasing number of appeals, the exigencies of time no longer permit courts of appeal to search for precedential support for points which counsel has inexcusably failed to provide.Accordingly, the three points in question present nothing for appellate review.

The two remaining points relied upon by appellant, although unduly verbose, may fairly be paraphrased as follows: (1)the trial court erred in treating two certificates of deposit standing in appellant's name alone as marital rather than nonmarital property because they were respectively purchased by appellant with money bequeathed to him by a deceased son by a former marriage and from proceeds of a life insurance policy on his deceased son's life naming appellant as beneficiary; and (2)the trial court abused its discretion in dividing the marital property because the division effected failed to reflect consideration of the wife's marital misconduct as a relevant factor.As will later become apparent, resolution of these two points will have an inexorable ripple effect upon the overall division of marital property made by the trial court.

Two certificates of deposit standing in the husband's name alone, one in the amount of $5,000 issued by the Chillicothe State Bank, Chillicothe, Missouri, and one in the amount of $5,000 issued by the Kingston Bank, Kingston, Missouri, were included in and awarded to the husband in the division of marital property.The husband testified the source of the funds used to acquire the Chillicothe State Bank certificate of deposit "was my son's [a son by a former marriage] estate--pertaining to his death" and the source of the funds used to acquire the Kingston Bank certificate of deposit was from his deceased son's "insurance check".No evidence was offered by the wife to refute or contradict the husband's testimony in these respects.

The Chillicothe State Bank certificate of deposit will be dealt with first.Section 452.330.1, RSMo 1978, insofar as here pertinent, provides that "the court shall set apart to each spouse his property".(Emphasis added.)Section 452.330.2(1)(2), RSMo 1978, provides that "[f]or purposes of sections 452.300 to 452.415 only, '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".(Emphasis added.)Although the husband's testimony was lacking in specificity, i.e., whether the funds used to acquire the Chillicothe State Bank certificate of deposit were derived from his "son's estate" by way of "bequest" or "descent", the only reasonable inference deducible from the record is that the source funds came from the husband's "son's estate" either by way of "bequest" or "descent".Whether the source funds used to acquire the Chillicothe State Bank certificate of deposit were derived from the husband's "son's estate" prior or subsequent to the present marriage, in and of itself, is not fatal to the husband's contention that the Chillicothe State Bank certificate of deposit was separate property.Section 452.330.2(2), RSMo 1978, specifically excepts as marital property that which is acquired "in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise or descent."

A more vexing problem is presented by Section 452.330.3, RSMo 1978, which reads: "All property acquired by either spouse subsequent to the marriage and prior to decree of dissolution is presumed to be marital property regardless of whether title is held individually or by the spouses in some form of coownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property.The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection 2."The husband, assuming the source funds of the Chillicothe State Bank certificate of deposit were acquired by the husband subsequent to the marriage, had the burden of proving that the Chillicothe State Bank certificate of deposit "was acquired by a method listed in subsection 2" of Section 452.330, RSMo 1978.Hull v. Hull, 591 S.W.2d 376, 379(Mo.App.1979);andBoyers v. Boyers, 565 S.W.2d 658, 660(Mo.App.1978).

In light of the legal template cast above, ultimate determination of whether the Chillicothe State Bank certificate of deposit constituted the husband's separate property turns on whether the husband sustained the burden of proving that the funds used to acquire the certificate of deposit in question were derived by "bequest" or "descent" from his "son's estate".By way of recapitulation, the only evidence touching upon the matter comes from the husband who testified that the source of funds used to acquire the Chillicothe State Bank certificate of deposit "was my son's estate--pertaining to his death".The only reasonable inference deducible therefrom is that the source funds came from his "son's estate" either by way of "bequest" or "descent".The wife offered no evidence to refute or contradict the husband's testimony or the reasonable inference to be drawn therefrom, made no effort to impeach the husband's testimony or attack his credibility as a witness, and neither offered evidence nor claimed that any funds derived by the husband from his "son's estate" became so commingled with marital property or funds prior to acquisition of the Chillicothe State Bank certificate of deposit that the latter lost its identity as nonmarital property.Regarding potential consequences of commingling marital and nonmarital funds, seeAnderson v. Anderson, 584 S.W.2d 613, 615(Mo.App.1979), andMarriage of Badalamenti, 566 S.W.2d 229, 235(Mo.App.1978).

On the basis of the entire record this court concludes that the husband carried his burden of proving that the Chillicothe State Bank certificate of deposit was obtained in exchange for funds acquired by him from his deceased "son's estate" by "bequest" or "descent", and, therefore, constituted nonmarital property.Inclusion of the Chillicothe State Bank certificate of deposit as an item of marital property was against all the evidence, much less the greater weight of the evidence, and an erroneous application of law.Consequently, it is subject to redress on appeal notwithstanding the strictures of appellate review in court tried cases laid down in Murphy v. Carron, 536 S.W.2d 30(Mo. banc 1976).

The statutory references, cited cases, and rationale heretofore set forth with respect to the Chillicothe State Bank certificate of deposit are, in many salient respects, applicable to the Kingston Bank certificate of deposit.The husband testified that its source was his deceased son's "insurance check".The husband also testified that his son by a former marriage was killed in 1969 while serving in the United States Marine Corps.Scant as the husband's testimony may be, the only reasonable inference deducible therefrom is that the source of funds...