Fulton v. Fulton, 9693

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBefore BILLINGS; TITUS
Citation528 S.W.2d 146
PartiesGrace Brady FULTON, Plaintiff-Respondent, v. J. C. FULTON, Defendant-Appellant.
Docket NumberNo. 9693,9693
Decision Date22 September 1975

Page 146

528 S.W.2d 146
Grace Brady FULTON, Plaintiff-Respondent,
J. C. FULTON, Defendant-Appellant.
No. 9693.
Missouri Court of Appeals, Springfield District.
Sept. 22, 1975.

Page 149

John C. Holstein, Rich D. Moore, Moore & Brill, West Plains, for plaintiff-respondent.

Harold L. Henry, West Plains, for defendant-appellant.


TITUS, Judge.

Grace Brady Fulton (Grace) sued J. C. Fulton (J. C.) for divorce in the Circuit Court of Oregon County, Missouri, on March 9, 1973. In the amended Count II of the petition Grace asked the court to award her a 92-acre Oregon County farm, certain livestock, and all the household goods, furnishings and farming equipment located on the farm 'as the property settlement between plaintiff and defendant.' The petition alleged the farm, household goods, furnishings and farming equipment had been acquired by Grace as her separate property before the marriage and that she had purchased the livestock with her own money without contribution from J. C. The amended counterclaim filed on behalf of J. C. asked for (1) a divorce, (2) alimony in gross, (3) a decree declaring Grace in contempt for violating an injunctive order, (4) a decree fixing J. C.'s rights to the farm either via a resulting trust, joint adventure or equitable lien, (5) an accounting of J. C.'s interest in the sale of livestock and other personal property by Grace, and (6) partition of the real estate. The court nisi entered judgment for J. C. on Grace's petition and for Grace on J. C.'s counterclaim. J. C. alone perfected his appeal, contending the trial court erred in not finding for him on all items of his asseverations save his claim for alimony and partition. However, since the appeal, Grace, without apparent objection from J. C., has secured a divorce or dissolution of the marriage elsewhere, so that phase of the matter is now moot. 1

Ages of the parties are unknown, but neither was unseasoned nor a neophyte at nuptials. Both resided in California when our concern commences. Grace became a widow in 1965 upon the demise of Barney Brady; J. C. was then married to one Laura. Within 'several weeks' after Grace assumed widowhood, or more precisely in January 1966, J. C. began to pay her court. Intolerant of the association Laura sued J. C. for divorce and obtained a final decree therefor on July 21, 1967. J. C. and Grace married eight months later in March 1968 and moved onto the Oregon County, Missouri, farm in July 1968.

In july 1966 while J. C. was still wedded to but separated from Laura, he and Grace

Page 150

journeyed from California to Missouri and Arkansas on vacation. The trip's purpose was to visit kin and neither sojourner contemplated the purchase of real estate in the vacation area or elsewhere. While picnicking with Grace's sister and brother-in-law and through sheer happenstance, the quartette espied a 'For Sale' sign in the yard of the Oregon County farm in question and inquired of the owners in residence. The total price was $17,000-$1,000 was needed to hold the deal, another $4,000 was required forthwith before deed delivery, and the balance was to be evidenced by a $12,000 promissory note payable in yearly $1,000 installments plus interest. From this point forward the evidence is in disaccord.

Grace said that before seeing the farm she and J. C. had no discussions concerning their possible marriage. Contrawise, J. C. testified that a day or two before the farm was purchased, and while the two were ensconced in the romantic confines of a fishing boat, he broached the subject of marriage to Grace (to become effective when his divorce from Laura became final) and she expressed amenability to the proposition. Under Grace's version, J. C. had no part in purchasing the farm or in the negotiations relative thereto. Additionally Grace contended that J. C. did not contribute to the $1,000 holding payment because 'I had the money to pay the down payment on the farm' ($500 of which was borrowed from her father), that there was no understanding the title was to be put in her and J. C.'s joint names when his divorce became final, nor any agreement that J. C. was to have any interest in the farm, either at the time of purchase or thereafter. In support of her assertions, Grace produced five checks of $100 each dated from November 1966 to May 1967 payable to her father. They were drawn on a California bank against the account of Barney H. and Grace L. Brady. Grace said these checks represented restitution of the $500 she had borrowed from her father to make one-half of the $1,000 holding payment. Also, Grace put in evidence a $4,000 check dated July 5, 1966, drawn on the California bank against the same account, which she testified completed the $5,000 down payment on the farm. Grace additionally proffered a $1,000 written receipt from the farm sellers which did not mention J. C., the warranty deed to the farm dated July 2, 1966, naming Grace Brady as the lone grantee, and the paid $17,000 promissory note dated July 18, 1966, signed by Grace Brady as the sole maker. Grace ceded, however, that J. C. had given her a total of $3,800 (none of which was for the holding payment) 'and I paid it on the farm.' She had kept in an address book a penned record of J. C.'s payments to her in 1966 after they returned from their vacation trip. Under the heading, 'J. C. Paid on House and Farm,' Grace had recorded two $250 and one $100 payments in July 1966, and 12 payment of $50 each to November 18, 1966. She acknowledged also that J. C. gave her $1,000 'for the payment on the place in December of '67', and that in January 1969 J. C. gave her $1,500 which she put with money drawn from her account in the California bank 'for the payoff of the place.' 2 During 1967, according to Grace, J. C. 'give (sic) me some (money), but not very much. . . . (H)e told me to use it for whatever I wanted and he ate his meals at my house, two meals a day . . . and I used the money for groceries.' Grace had no record or recollection of the amount J. C. gave her in 1967 (save the $1,000 payment in December 1967), and testified that after moving to Missouri in July 1968, J. C. gave her money 'from time to time (and) told me to do (with it) whatever I wanted to.' Grace asserted that J. C. did not work after they moved to Missouri and that they lived off her $21 a month retirement, money she got for keeping foster children for a year and a half, and money from the sale of pigs. Grace maintained that no money given her by J. C. went into her account in the California

Page 151

bank and that J. C. made no deposits to that account nor to the joint account they had in the Alton (Missouri) Bank, more of which anon. It was agreed that after J. C.'s divorce from Laura became final, he asked Grace to put the farm in their joint names and she refused. Grace did not admit knowledge of the farm's value on the date of trial (November 8, 1973), but did admit that 'over three years ago' she had the place listed for sale at $43,000.

Contrary to Grace's recastings, J. C. maintained he was a participant in the inspection, negotiations and purchase of the farm. He said that when the terms of the sale were ascertained, 'Grace and myself (sic) decided we could get up five hundred dollars between us. And her father (said) he would loan us five hundred dollars to pay the thousand dollars . . . to hold the deal. And we would send (the other $4,000) back to him when we got back to California. (S)o the money I had and the money (Grace) had and the (borrowed $500) made the thousand dollar payment.' When asked what was said about the title between J. C. and Grace while they were dealing to buy the farm, J. C. related: 'I was in the process of getting a divorce in California and we discussed . . . putting the place in (Grace's) name so this ex-wife of mine . . . couldn't cause us any trouble. She agreed to it (but) after everything blowed (sic) over in California I tried to get Grace to put my name on the deed and she refused. . . . So we went back to California (and) on two different occasions I gave Grace two hundred and fifty dollars on that five hundred dollars . . . (f)or the thousand dollar down payment on the place.' 3 J. C. stated that Grace had a 'savings' in the California bank and that when they returned from the vacation trip, she sent $4,000 (balance of the down payment) 'and the money that I gave her she put in the bank in that savings account.' In addition to the two $250 payments, the $1,000 payment made in December 1967, and the $1,500 payment made in January 1969, as testified to by both J. C. and Grace, J. C. claimed payments to Grace of $50 a week for 'I think twenty-one months up until we got married or something like that and then I started giving her seventy-five dollars a week (which continued for) about nineteen weeks I think.' J. C. calculated the $50 weekly payments came to $4,550 and the $75 weekly payments amounted to $1,425. Although the two $250 payments, the $1,000 and $1,500 payments, and the various weekly payments testified to by J. C. came to a total of $8,975, he testified that to the best of his knowledge he had given Grace $11,990 'on the payment of this property.' When, where, and by what means the $3,015 difference was paid went unexplained at trial.

When J. C. and Grace moved to the farm in July 1968, an account was opened at the Alton (Missouri) Bank in the names of 'J. C. Fulton or Grace L., Rt. $1, Couch, Mo.' The initial deposit was made with a $6,800.56 cashier's check dated July 2, 1968, which Grace said she had bought 'at the bank in California.' In explanation of the source of the money used to buy the check, Grace testified that 'Five thousand dollars of it came from the sale of my house (and the balance from) three checks, three weeks' pay, two weeks' vacation and I had sold my car and . . . my husband's police gun and some furniture.' Not congruos with...

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