Hebron v. Hebron

• Decision Date: 28 March 1978
• Docket Number: No. 38250,38250
• Citation: 566 S.W.2d 829
• Parties: Jean M. HEBRON, Petitioner-Appellant, v. Robert E. HEBRON, Respondent. . Louis District,Division Four
• Court: Missouri Court of Appeals

Page 829

566 S.W.2d 829

Jean M. HEBRON, Petitioner-Appellant, v. Robert E. HEBRON, Respondent.

No. 38250.

Missouri Court of Appeals,St. Louis District,Division Four.

March 28, 1978.

Richeson, Roberts, Webmann, Gasaway, Stewart & Schneider, John A. Schneider, Hillsboro, for petitioner-appellant.

Jeremiah Nixon, Hillsboro, for respondent.

DOWD, Judge.

The twenty one year marriage of appellant Jean Hebron and respondent Robert Hebron was dissolved on March 19, 1976 in Jefferson County, Missouri. The court's division of property, order as to maintenance, and ruling as to attorney's fees are disputed on appeal.

The parties were married on November 26, 1955. From 1965 to 1975 they lived with their five children in a home they built on Lonedell Street in Arnold, Missouri. In April of 1975, appellant obtained a court order for respondent to leave the family home. They have been separated since that time. At the time of the dissolution proceeding appellant was 42 years old and respondent 44 years old.

At the dissolution, the trial court ordered nearly all of the assets of the parties, which consisted of stocks and real estate, sold and proceeds divided equally. Appellant and the five children are to have the use of the family home until the youngest child, age 13, is emancipated. At that time the home is to be sold and proceeds divided equally. However, appellant is to be credited for house payments she makes after April 1, 1976. Respondent is to pay appellant $100.00 per month maintenance which will terminate April 1, 1985 or upon her remarriage. The five minor children are to be in appellant's custody, with respondent paying $100.00 per month per child until each child is emancipated. The trial court found that the American General Insurance stocks which are held in respondent's name in a company retirement trust, valued at $3,000, to be respondent's separate property. The furnishings in the family home, valued at $3,000, were awarded to appellant as her separate property. Each party was to pay his or her own attorneys fees, and respondent is to pay the court costs for trial.

We must affirm the judgment below unless it is against the weight of the evidence or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976); Smith v. Smith, 552 S.W.2d 321, 323(4) (Mo.App.1977).

Appellant first challenges the division of property as to both the family home and the stock. The trial court possesses considerable discretion in its division of marital property following dissolution. Klinge v. Klinge, 554 S.W.2d 474, 477(3) (Mo.App.1977). Its decision will not be overturned absent abuse of that discretion. In re Marriage of Simpelo, 542 S.W.2d 558, 561(8) (Mo.App.1976).

We will first discuss appellant's contention that the family home on Lonedell was not marital property but her separate property. The relevant statute is § 452.330, RSMo 1969 which states that a trial court shall set apart to each spouse his or her separate property. Section 452.330.3 sets out the presumption that all property acquired by either spouse subsequent to the marriage is presumed to be marital property, regardless of how title is held. The presumption can be overcome by showing that property was acquired by exceptions listed under § 452.330.2. Appellant claims the home is her separate property because it falls into the second exception "property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift." She claims that if we examine the transactions that resulted in the acquisition of the home and lot upon which it was built, it will be apparent that the home is her separate property.

A discussion of all the details of these transactions is not necessary. To summarize, we need only point to the facts that appellant relies on most strongly to advance her cause. These facts are that $11,750 of the $19,750 purchase price of the first family home bought in 1957 was paid from her separate funds. Her father, Mr. Gangloff, gave $2700 for permanent home improvements and $1900 for furniture. When this house was sold, the proceeds, $14,450, were used to construct the Lonedell home. The lot on which the Lonedell home was built had been in appellant's family for three generations and was deeded to appellant in 1955 before her marriage. She held it in her name alone from 1955-1964. In 1965 she deeded it to herself and her husband as joint tenants. The parties lived in this home for the last ten years of their marriage. During this time appellant's father paid the taxes and insurance on the house. There was testimony that he did this in exchange for respondent's having referred clients to him. Appellant's father also paid for a rathskeller to be built in the Lonedell home, which cost about $880.

Do these facts require a finding that the Lonedell home is appellant's separate property because it is "property acquired prior to the marriage or in exchange for property acquired by gift"? § 452.330.2(2) We believe the answer is no.

The parties first home on Plainview was held in their joint names, as was the Lonedell home and lot. Property acquired after the marriage and placed in joint names is presumed to be marital property even if one spouse furnishes a greater part of the consideration. Conrad v. Bowers, 533 S.W.2d 614, 622(12, 13) (Mo.App.1975). Clear and convincing evidence is required to show that the transfer of property to joint names was not intended as a provision for a settlement upon, or as a gift to the other spouse. Conrad v. Bowers, supra; Ledbetter v. Ledbetter, 547 S.W.2d 214, 215(1) (Mo.App.1977). The only evidence here is the testimony of appellant's father that the money he gave appellant over the years for the home improvements and for other things was intended to be gifts to her alone, bolstered by the statements by both appellant and her father that the first home on Plainview, and the Lonedell lot were both placed in joint names solely to obtain bank loans to finance the homes. This evidence does not rise to the "clear and convincing" standard enunciated in Conrad v. Bowers, especially in light of the following facts: First, during their marriage, appellant made no effort to treat either home as her separate property. Also, the house payments for both homes were made from respondent's paycheck. Respondent helped maintain the Lonedell lot by cutting grass and painting the old farmhouse before they built their home. He contributed his labor to the building of the home by tearing down the old farmhouse, building a patio, and putting in panelling. Respondent did not learn that appellant would claim the house as her separate property until depositions were taken a few months before trial. The trial court's memorandum opinion aptly describes the situation:

"This is a twenty-year marriage that produced five children as well as a rather carefully reconstructed financial history which does, in fact, show the helping hands of doting grandparents as well as substantial, continued, economic growth through the successful employment of Respondent. Twenty years ago these parties were married in a church, not an accountant's office. There was no three-cornered prenuptial agreement, including Petitioners doting parents, to segregate the contributions of those third parties from the respondent herein. The gifts were made to both parties and the intent of those gifts is best determined by the documents and titles evident at the time the gifts were made, rather than the statements of "intent" made during the emotional trauma of the demise of a twenty-year marriage."

The Lonedell home is marital property. The trial court's decree regarding it is not erroneous.

Appellant's second point is that even if the home is marital property, it should have been awarded to her. She relies on § 452.330.1(1-4) for her contention, which is set out below. ¹ She claims that if the court had properly weighed these factors, it would have awarded the home to her. The first factor, contribution of each spouse to the acquisition of the marital home, has been discussed. The second factor, value of the property set apart to each spouse, is approximately equal; appellant was awarded the furnishings of the home, valued at $3,000, and her husband was awarded shares of American General stock held in his name alone, also valued at $3,000. All other assets were ordered sold and divided equally although the home was not to be sold until the 13-year-old boy is emancipated and appellant is to get credit at the time of the division of proceeds for the house payments she had made.

The third factor involves the economic circumstances of the parties. Appellant has worked for the past seven years on a part time basis at a church in Arnold, Missouri. Her take home pay is about $310 per month. She is also a licensed real estate broker, but has never participated in any sales. Her other income is $100 per month maintenance and $100 per month child support per unemancipated child. Thus, her monthly income at the present time is $910 per month.

Appellant's expenses are $103.19 per month for house payments. She also has expenses for private school, college tuition, and dental braces for the children but these need not be detailed since she does not appeal the child support award. Her health is good.

Respondent earns $1,058 per month as a marketing coordinator for an insurance company. Expenses for his rent and living expenses, child support, and maintenance, approximate $1300 per month, so that his expenses exceed his income by about $300 per month. He is under a doctor's care for a heart condition.

Finally, we are to consider the conduct of the parties during the marriage. There was testimony that respondent drank to excess and that appellant stayed out late at bingo games and was too lenient with the children. We have perused the record and conclude that neither party stands out as the villain in the...