Greiner v. Greiner

• Decision Date: 19 October 2004
• Docket Number: No. WD 62752.,WD 62752.
• Citation: 146 S.W.3d 442
• Parties: Sandra K. GREINER, Respondent, v. Robert F. GREINER, Appellant.
• Court: Missouri Court of Appeals

146 S.W.3d 442

Sandra K. GREINER, Respondent, v. Robert F. GREINER, Appellant.

No. WD 62752.

Missouri Court of Appeals, Western District.

October 19, 2004.

Appeal from the Circuit Court, Jackson County, Michael W. Manners, J Patricia M. Seaglia, Kansas City, MO, for appellant.

Dennis C. Owens, Kansas City, MO, for respondent.

Before HARDWICK, P.J., SPINDEN and NEWTON, JJ.

LISA WHITE HARDWICK, Judge.

Robert Greiner (Husband) appeals from the judgment dissolving his marriage to Sandra Greiner (Wife). He challenges the division of property and award of maintenance and attorney's fees to Wife. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Husband and Wife were married in 1973. Husband began attending medical school in 1975 and completed a four-year residency in pathology in 1986. Wife worked as a medical technologist to support the family during most of Husband's medical training.¹ After Husband began working as a pathologist, the parties agreed in 1987 that Wife would no longer work outside the home.

Wife filed a Petition for Dissolution of Marriage on October 1, 2001. After seeking employment for several months, Wife obtained a part-time job at a restaurant in August 2002, earning a projected income of $377 monthly. Husband's income at that time was at least $15,000 monthly, based on his annual earnings of $181,000. The parties continued to share the marital home in Independence until September 2002, when Husband purchased a separate residence in Blue Springs.

After an evidentiary hearing, the court entered judgment on October 18, 2002, dissolving the marriage and dividing the marital estate valued at $444,500. Husband was awarded 51% of the net marital assets, and Wife received 49%.² Wife was also awarded periodic maintenance of $3500 monthly and $13,000 in attorney's fees.

On appeal, Husband raises five points challenging the division of property, four points challenging the maintenance award, and one point challenging the award of attorney's fees.

STANDARD OF REVIEW

In this court-tried case, we will not disturb the dissolution judgment unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Alongi v. Alongi, 72 S.W.3d 592, 594 (Mo.App.2002). We must defer to the trial court's credibility determinations and view the evidence in a light most favorable to the judgment, disregarding all contrary evidence and inferences. Id. The judgment of the trial court is entitled to deference even if the evidence could support a contrary conclusion. Taylor v. Taylor, 25 S.W.3d 634, 638 (Mo.App.2000).

DIVISION OF PROPERTY

The division of property in dissolution cases involves a two-step process under Section 452.330.1, RSMo 2000. The trial court must first set aside to each party their non-marital property and then divide the marital property and debts after considering relevant factors set forth in the statute.³ The court has broad discretion in classifying and dividing property. Jinks v. Jinks, 120 S.W.3d 301, 305 (Mo. App.2003). The division need not be equal but must be fair and equitable under the circumstances of the case. Id. at 306.

On appeal, we will reverse only if the division is so unduly weighted in favor of one party as to constitute an abuse of discretion. Alongi, 72 S.W.3d at 595. The appellate court presumes the trial court's division of property is correct, and the party opposing the division bears the burden of overcoming this presumption. Nelson v. Nelson, 25 S.W.3d 511, 517 (Mo. App.2000). A further presumption exists that the trial court considered all of the evidence in dividing the marital property. Id. at 518.

Husband raises two points challenging the trial court's classification of certain assets as non-marital or marital property.

First, Husband contends the trial court erred in classifying the entire value of Wife's Phoenix Investment Partners, Ltd. account as non-marital property. The investment account was established in 1972, prior to the parties' marriage, when Wife and her mother each contributed an initial investment of $500. No additional contributions were made during the next thirty years, but the account increased in value from $1,000 to $19,187.95 through reinvestment of dividends. Wife testified that the purpose of the investment account was to assist her parents in retirement.

The trial court classified the investment account as Wife's non-marital property, finding there was no evidence that the funds had been commingled with marital assets or that Wife intended to gift her pre-marital interest in the account to the marital estate. Husband does not dispute that Wife's initial contribution to the account is her non-marital property, but he contends any increase in the account's value during the marriage constitutes marital property regardless of whether it was commingled or gifted into the marital estate.

Missouri law defines marital property as "all property acquired by either spouse subsequent to the marriage." § 452.330.2, RSMo.2000. Property acquired during the marriage is presumed marital unless it falls under one of five statutory exceptions:

(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;

(3) Property acquired by a spouse after a decree of legal separation;

(4) Property excluded by valid written agreement of the parties; and

(5) The increase in the 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.

§ 452.330.2.

Although the exception in subsection (5) appears applicable in this case, our court has held that the phrase "increase in value" does not include income earned during the marriage from property acquired prior to the marriage. In re Marriage of Schatz, 768 S.W.2d 607, 611 (Mo. App.1989). Thus, Wife's pre-marital $500 investment may be properly characterized as her separate property, but any interest or dividends she earned from the account during the marriage became part of the marital estate. Davis v. Davis, 107 S.W.3d 425, 434 (Mo.App.2003).

The trial court erred in assigning the total value of the Phoenix investment account to Wife as her separate property. In awarding the property to Wife, the court should have determined the marital portion of the increased value of the account and then included that amount in the marital property set aside to Wife. However, this error does not require reversal unless it resulted in a property division so unduly weighted in Wife's favor as to indicate an abuse of the trial court's discretion. In re Marriage of Gardner, 890 S.W.2d 303, 306 (Mo.App. 1994).

The exact amount of the marital interest in the Phoenix investment account is unclear from the record, but it could be as much as $9,093.93 (based on Wife's one-half share of the $18,187.85 in increased value). The dissolution judgment entered by the trial court indicates that Husband was awarded 51% of the net marital assets and Wife was awarded 49%. If the court had included the increased value of the Phoenix investment account in the marital estate and awarded it to Wife, the property division would have been slightly more equalized with each party receiving 50% of the marital assets. The classification error caused only a 2% differential in Husband's favor and did not affect the overall fairness or equity of the property division. We find no grounds for reversal, as the trial court's error did not result in an abuse of discretion in dividing the marital property.

Husband next contends the trial court erred in including his $3,231 down payment on his new home as a marital asset because "those funds did not exist at the time of trial and had been incorporated into a parcel of real estate that had no equity." He also contends the court double-counted the asset by characterizing the down payment as marital property and then declaring the real estate as Husband's separate, non-marital property.

Husband moved out of the parties' home in Independence and purchased a new home in Blue Springs approximately one month before the court entered the dissolution judgment. The court made findings that the new home was valued at $225,000 and was subject to a mortgage of the same amount. Thus, the home had no equity value at the time of the divorce, even though Husband spent marital funds of $3,231, as a down payment, to acquire the asset.

Contrary to Husband's argument, the trial court did not classify the new home as his non-marital property. The court clearly identified and set aside the parties' non-marital property in section IV of the judgment, and the Blue Springs home is not included therein. In sections V through VII of the judgment, the court identified and divided the marital property. That division included awarding the Independence home to Wife and the Blue Springs home to Husband. The court's marital property division is further summarized in an attachment to the judgment at Exhibit B, which indicates the Blue Springs home was awarded to Husband and that the down payment of $3,231 is included in the value of marital property awarded to him.

The trial court properly characterized the Blue Springs home as marital property because it was purchased during the marriage and with marital funds. While the home had no equity value as a result of the financing terms, the court could reasonably factor in Husband's recent expenditure of $3,231 in marital funds to acquire the substantial asset. We find no classification error and no indication that the court double-counted the value of the new home. Point denied.

Husband raises three points challenging the trial court's valuation of the following marital property: the parties' home in...