Forsythe v. Forsythe

• Decision Date: 27 June 1977
• Docket Number: No. KCD,KCD
• Citation: Forsythe v. Forsythe, 558 S.W.2d 675 (Mo. App. 1977)
• Parties: Arthur J. FORSYTHE, Appellant, v. Charline M. FORSYTHE, Respondent. 28560.
• Court: Missouri Court of Appeals

Page 675

558 S.W.2d 675

Arthur J. FORSYTHE, Appellant, v. Charline M. FORSYTHE, Respondent.

No. KCD 28560.

Missouri Court of Appeals, Kansas City District.

June 27, 1977.

Motion for Rehearing and/or Transfer Denied Aug. 29, 1977.

Application to Transfer Denied Oct. 11, 1977.

P. Wayne Kuhlman, Liberty, for appellant.

Alvin D. Shapiro, Stinson, Mag, Thompson, McEvers & Fizzell, Kansas City, for respondent.

Before SHANGLER, P. J., and WELBORN and HIGGINS, Special Judges.

SHANGLER, Presiding Judge.

The decree of dissolution of marriage awarded custody of the two unemancipated children to the wife, awarded her $300 a month for their support, apportioned the property, and denied maintenance.

The parties married while at college. She soon became gravid, discontinued school attendance, and made the home for the family while the husband pursued a career. After twenty-five years, they separated. The husband has become budget director for Trans World Airlines and earns $30,000. The wife is without essential employment skill and attempts work as a travel consultant. She is paid on commission and has earned some $300 in five months. The husband has attended to the family finances throughout the marriage. The wife has lacked aptness even to balance a checkbook.

The funds which came into the marriage were managed by the husband, who invested them and otherwise directed the wife as to the disposition to be made. The couple amassed numerous stocks, some real estate and a residence. The source for much of this property was a conveyance of land by gift from the Thrustons, parents of the wife, to the parties as husband and wife. The land was sold and the proceeds invested in securities registered to them jointly. The court set these assets apart as the sole property of the wife. On this appeal the husband claims as his salient point that § 452.330 requires the court to treat a gift to both husband and wife as marital property subject to division on dissolution of marriage. We agree.

The question is determined by the provisions and intendments of § 452.330, RSMo 1975 Supp.:

1. In a proceeding for . . . dissolution of the marriage . . . the court shall set apart to each spouse his property and shall divide the marital property . . .

2. For 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;

3. All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property regardless of whether title is held individually or by the spouses in some form of coownership . . . The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection 2. (Emphasis added.)

Section 452.330.3 presumes that all property acquired during the marriage is marital property and provides that one of the ways the presumption may be overcome is to show that the asset was acquired by gift by either spouse under § 452.330.2(1). A gift to both spouses does not fall within the literal ambient of that statute, so the question remains whether the integral Dissolution of Marriage Act (§§ 452.300 to 452.415) intends that such a joint gift shall also be excepted or shall be presumed marital property and so subject to division.

The property division provisions of the integral Act bring two new concepts to our law: the right of each spouse to an equitable share of the marital assets and the power of the court to make such a division.

At common law the marriage gave rise to no property rights by virtue of the marriage itself. The law treated the wife as a chatelaine whose role was without economic function. Also, in the absence of statute, the courts had no power to order the transfer or division of property. Krauskopf, Division of Property, 41 Mo. LR 165 (1976). The express provisions of § 452.330.1(1) which attributes economic value to the contribution of a spouse as homemaker and of § 452.330.1 which empowers a court to divide the marital property abrogate these common law postulates. Thus, the integral Act treats the marriage as an enterprise between partners, each entitled to a fair share of the family assets, however disparate the efforts which contributed to their prosperity. Corder v. Corder, 546 S.W.2d 798, 803(3) (Mo.App.1977). And to give effect to this purpose, the Act invests the court with power to make the division.

A gift of property to the spouses jointly, of course, is not a product of their industry, but it does come to them in the marriage relation and creates a title by the entirety which unless the Act empowers a court to divide requires an additional judicial procedure for severance. Holt v. Myers, 494 S.W.2d 430, 444(18, 19) (Mo.App.1973); 41 Am.Jur.2d Husband and Wife, § 57. Prior to the enactment of § 452.330, upon divorce the parties became tenants in common as to all property held by the entirety during the marriage; hence, a separate partition suit was needed to finally determine the property interest of each spouse. Allan v. Allan, 364 S.W.2d 578, 582(10, 11) (Mo.1963). One purpose of that enactment was to eliminate the need for this "unsatisfactory half-remedy of partition" upon dissolution (Fowler and Krauskopf, 29 J. of Mo. Bar 508 (1973)) and to relieve the parties from further litigation to sever altogether the property relations between them. Corder v. Corder, supra, l.c. 804(4, 5).

The purpose of § 452.330.3 is to treat as marital property all assets acquired during the marriage by the industry of either spouse. The purpose of § 452.330.2 which by mention exempts from division only a gift to either spouse is to treat as marital property a gift to both spouses. From this we conclude that the integral Act intends for the court to divide and settle title to all property which has come to the spouses by virtue of the marriage relation.

It is the contention of the...