Gibson v. Gibson, 53133
| Decision Date | 03 May 1988 |
| Docket Number | No. 53133,53133 |
| Citation | 748 S.W.2d 953 |
| Parties | Rhonda Gayle GIBSON, Petitioner-Respondent, v. Norman Leroy GIBSON, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Jonathan L. Downard, Union, for respondent-appellant.
Prudence Fink Johnson, Union, for petitioner-respondent.
Husband appeals after dissolution of marriage decree granted in a default hearing. The default was granted after the court struck husband's answer solely on the ground that it was filed out of time and without leave of court. 1 The petition was filed on November 18, 1986. The answer was filed on January 21, 1987. The decree granted dissolution, custody and support for Billy Jo Gibson, born December 15, 1974, attorney's fees and court costs. The decree also awarded all real estate owned by the parties to wife which she testified was acquired by the parties during "the" marriage and consisted of three tracts of land, one for 2.80 acres, one for 7.2 acres and a third for 92.80 acres. Some marital personal property was awarded to husband: three vehicles, a wood stove and such furniture and furnishings in his possession not specifically awarded to wife. The court also awarded wife $450 for attorney's fees although there was no substantial evidence about husband's finances and no evidence of wife's finances.
Husband raises only one issue on appeal, that the court erred in awarding wife his non-marital separate property consisting of real estate. He contends that the court ignored the mandate of Section 452.330.1 RSMo 1986. Wife responds that "all property is presumed under law to be marital property and there is no evidence to prove otherwise." Wife's statement is incorrect. Section 452.330.3 provides "all property acquired by either spouse subsequent to the marriage and prior to the 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 co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property." Husband's contention is the real estate awarded to wife was acquired by him prior to the marriage. Absent proof that the real estate was acquired "subsequent" to this marriage, no presumption exists to support a finding that the real estate is marital property.
We look first to wife's petition which alleges that During the default hearing, reported in thirteen and one-half pages of transcript, wife gave the following testimony relevant to the issues on appeal:
Q. Were you married to him on April 25, 1970?
A. Yes.
Q. And did that marriage take place in Farmington, Missouri?
A. Yes.
Q. And is it registered in St. Francois County, Missouri?
A. Yes.
Q. And were you separated on July 31, 1984?
A. Yes.
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Q. I'd like to show you what's been marked Petitioner's Exhibit 1; is that a legal description of three tracts that you and Norman acquired during your marriage?
A. Yes.
On the surface this evidence appears to support a finding of the court that the real estate was acquired during this marriage and was therefore marital. However, the underlying facts disclose an altogether different situation.
It is true that the parties were married on April 25, 1970. It is also true that that marriage was terminated by a decree of dissolution entered in the Circuit Court of Washington County, Missouri, on December 4, 1975. The parties remarried on October 7, 1978 in Farmington, Missouri. The original decree of dissolution awarded to husband "ninety-eight acres of land which he owned prior to the marriage and which is described as ninety-eight acres for the reason that the court has no legal description of the said land and finds that Respondent [wife] has no interest in the said ninety-eight acres." The original decree also provides in relevant part: "the house mentioned in evidence and which is to be found to be owned as tenants by the entireties and subject to a Deed of Trust in the approximate amount of $19,500 is to be listed and sold for the best price available and the Petitioner [husband] is ordered to make the payments on the said note and the First Deed of Trust securing it against the said house and land on which it is situated, and he may occupy said residence building until the said house and the land on which it is situated are sold and when the said house and land has been sold, all costs of sale; the balance remaining on the said note First Deed of Trust and all money paid by Petitioner persuant [sic] to this Decree of Court shall be taken off of the top of the sale and the remaining balance shall be divided equally between Petitioner and Respondent...." According to the decree the ninety-eight acres became husband's separate property and the house was ordered sold with an equal division of proceeds.
All of the evidence regarding the first dissolution and remarriage and the ownership of real estate was presented to the court in support of husband's motion for rehearing and to vacate and reopen the judgment. At the hearing to set aside the default decree the court observed the 1975 decree was properly certified and it was "obliged to take judicial notice of it." Wife's "no foundation" objection was overruled. Wife did not, however, dispute any of the facts regarding the December 4, 1975 dissolution, the award of the real estate now in dispute to husband or the remarriage of the parties. The trial court was told wife was in the courthouse although not in court. We find that the court erred in failing to set aside the decree to the limited extent requested by husband. A dissolution of a marriage previously terminated by a valid dissolution was an erroneous application of law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
The abnormality in the present case is startling. The undisputed testimony of husband at the hearing to set aside was that the April 25, 1970 marriage was terminated by a decree of dissolution on December 4, 1975. This testimony was supported by the certified copy of the dissolution decree, judicially recognized by the trial court, and is part of the appeal file. Wife did not plead and during the default hearing did not offer any proof of the 1975 dissolution and the second marriage which occurred on October 7, 1978.
Husband has appealed claiming only that the court erred in denying him his separate real property and relies on the provisions of Section 452.330 RSMo 1986. It appears obvious that husband could have asserted error attacking the entire proceeding. He did not do so before the trial court and does not assert that claim before this court.
The brief testimony of wife when considered in light of the undisputed facts presented to the trial court by a timely motion to reopen the proceeding, indicates that her...
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Missouri Mexican Products, Inc. v. Dunafon, WD
...distribution, the trial court necessarily determines whether the property in question is marital or separate. See Gibson v. Gibson, 748 S.W.2d 953, 955 (Mo.App.1988). Therefore, the right to possession is in issue. In each case there were issues of possessory rights which were necessary to ......
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§ 5.03 Determining What Is "Marital Property"
...See: California: Fidelity & Casualty Co. v. Mahoney, 71 Cal. App.2d 70, 161 P.2d 944 (Cal. App. 1945). Missouri: Gibson v. Gibson, 748 S.W.2d 953 (Mo. App. 1988). [74] See, e.g., Tex. Fam. Code § 5.02. See also, Breaux v. Breaux, 555 So.2d 1001 (La. App. 1990).[75] See, e.g.: Missouri: Mo. ......