In re Marriage of Cunningham

• Decision Date: 10 April 2019
• Docket Number: No. SD 35580,SD 35580
• Citation: 571 S.W.3d 688
• Parties: IN RE the MARRIAGE OF: Catherine S. CUNNINGHAM, and Roger D. Cunningham, Catherine S. Cunningham, Petitioner/Respondent, v. Roger D. Cunningham, Respondent/Appellant.
• Court: Missouri Court of Appeals

571 S.W.3d 688

IN RE the MARRIAGE OF: Catherine S. CUNNINGHAM, and Roger D. Cunningham,Catherine S. Cunningham, Petitioner/Respondent,

v.Roger D. Cunningham, Respondent/Appellant.

No. SD 35580

Missouri Court of Appeals, Southern District, Division Two.

Filed: April 10, 2019

Appellant’s Attorneys: Sean D. Brinker and Zick Richardson, of Washington, MO.

Respondent’s Attorneys: Leah M. Avvocato, of Cuba, MO and Justin E. Head, of Union, MO.

WILLIAM W. FRANCIS, JR., P.J.

Roger D. Cunningham ("Husband") appeals the trial court’s judgment dissolving his marriage to Catherine S. Cunningham ("Wife"). In four points, Husband asserts the trial court erred in failing to classify and set aside his nonmarital property; that the allocation of marital property and debt was not supported by substantial evidence in that the trial court awarded Wife a disproportionate share of the value of the marital property; in finding the parties stipulated that the division of property was equal; and finding that both parties testified to the value of certain real property. Finding no merit to Husband’s four points on appeal, we affirm.

Factual and Procedural History¹

We view the evidence and its reasonable available inferences in the light most favorable to the judgment. Landewee v. Landewee , 515 S.W.3d 691, 694 (Mo. banc 2017). We recite only those facts relevant to our disposition, and as necessary for context.

The parties were married on December 21, 2002, and separated on February 11, 2016. Both parties were gainfully employed throughout the marriage, but finances were kept separate until 2013 when the parties opened a joint checking account. During the marriage, both parties contributed financially to the marital household.

Prior to the marriage, Husband owned a parcel of land with a residence located in Cuba, Missouri (the "Cuba property"). Husband purchased the property in approximately 1996 with a former wife. The Cuba property became the marital home upon the parties' marriage. Husband owed approximately $ 80,000 on the Cuba property at that time. Title to the Cuba property remained in Husband’s name.

On November 26, 2014, the parties purchased a parcel of land, including a house, located in Hillsboro, Missouri (the "Hillsboro property") for $ 91,500. Wife used funds received from an inheritance to make a down payment of $ 20,000. The title to the property was in Husband’s name only. Husband then financed the balance of approximately $ 71,500. Thereafter, Wife’s daughter moved into the property, paying rent to Wife, who deposited those funds in a joint checking account with Husband. After the separation, Wife instructed daughter to pay her rent directly to Husband. Daughter occupied the premises until October 2017, when she was evicted by Husband for non-payment of rent.

In January 2016, the parties agreed to refinance the Cuba property to pay off the Hillsboro mortgage. Appraisals valued the Cuba property at approximately $ 170,000, and the Hillsboro property at $ 94,000. At the time of refinancing, the debt on the Cuba property was $ 41,000, and the debt on the Hillsboro property was $ 71,000. After refinancing, the Cuba property remained in Husband’s name only. At the time of trial, the debt on the Cuba property was approximately $ 107,000.

The parties also purchased a parcel of land in Sullivan (the "Sullivan property") for $ 20,000, consisting of 5 acres of undeveloped land.

The parties utilized four vehicles, Husband’s nonmarital Dodge truck, a 1997 Ford Taurus, a 2003 Ford Escape, and a 2013 Kia Rio.

Other property at issue were each parties' respective checking/savings accounts, and 401K/retirement accounts held in their own name; a joint Edward Jones account in the amount of $ 25,000; bank accounts and/or savings accounts of Wife and Husband; a Branson timeshare; and a desk, cedar chest, chest of drawers, sewing machine, china cabinet, a glass cabinet, and a vacuum cleaner.²

A hearing was held on February 26, 2018, and both parties testified. Wife testified, without objection:

• that the parties agreed and stipulated that each party would receive their respective bank accounts and 401K/retirement accounts held in their own names (with no stated value); and that she could have personal property consisting of a desk, cedar chest, chest of drawers, sewing machine, china cabinet, a glass case, and a vacuum, with no stated value.

Wife stated she would like the trial court to award her additional marital property consisting of:

• the Hillsboro property, with a value of $ 94,000, which was free and clear of any indebtedness. Wife confirmed she had used $ 20,000 from an inheritance as a down payment to purchase the property;

• the 2003 Ford Escape, with a value of $ 2,500-$ 3,000;

• the 2013 Kia, with Husband to pay any remaining balance owed since Husband had agreed to take a tax refund and pay the balance off, which he failed to do. Wife was aware that Husband had been driving the Kia when he was rear-ended, and that repairs were to be made from insurance proceeds; and

• savings bonds in her grandchildren’s names, which were bought out of an inheritance, with no stated value.

Wife testified that Husband could have:

• his nonmarital Dodge pickup, with no stated value;

• the Cuba property (Husband had prior to the marriage) with an appraised value of $ 170,000, with Husband to pay the indebtedness of approximately $ 107,000. Wife testified she would be willing to pay Husband the sum of $ 20,000 toward the indebtedness, although stating that at the time of the marriage, Husband owed approximately $ 80,000, and at the time it was refinanced, it was paid down to approximately $ 41,000;

• the Sullivan property, which was purchased for $ 20,000, but no stated current value;

• the Branson timeshare, with no stated value;

• the 1997 Ford Taurus, with a value of approximately $ 2,000; and

• the jointly-titled Edward Jones account in the amount of $ 25,000.

Wife indicated that she contributed to the marital home during the marriage from wages, unemployment and medical leave earnings. She earned approximately $ 30,000 a year. Wife admitted that since the separation, she had not financially contributed to the marital debt, and that Husband basically continued to pay everything, including (for a time) her auto and health insurance.

Wife stated that she currently lived in an apartment paying $ 500 per month in rent. At the time of the separation, Wife moved to California to live with her son. Three months later, Wife returned to Missouri, found employment, and rented an apartment. She was unable to live in the Hillsboro property—even though vacant—because Husband refused to give her the keys.

Husband testified, without objection, he would like the trial court to award him:

• the Cuba property (which he testified he owned prior to the marriage), and pay only $ 40,000 (the balance due at the time of the refinancing) toward the outstanding indebtedness of approximately $ 107,000. Husband gave no testimony as to the value of the Cuba property, nor disputed Wife’s testimony that, pursuant to a recent appraisal (that Husband paid for), the value of the property was approximately $ 170,000;

• the Sullivan property, (no stated value);

• the 2003 Ford Escape, he valued at $ 875;

• the 1997 Ford Taurus, he valued at $ 100;

• the Branson timeshare, (no stated value);

• the joint Edward Jones savings account, in the amount of $ 25,000; and

• his bank accounts, and 401K/retirement accounts in his name.

Husband testified Wife could have:

• the desk, chest of drawers, cedar chest, sewing machine, china cabinet and vacuum, (no stated value);

• the Kia, and Wife pay the existing indebtedness of $ 2,000. Husband testified he was waiting on an insurance check in the amount of $ 1,300 so the Kia could be repaired.

Husband’s income during the marriage was approximately $ 45,000 a year.

When the trial court questioned Husband regarding values of the Edward Jones accounts, Husband’s attorney stated: "We'll stipulate that the reason we got up and said he keeps what accounts he has and she keeps what accounts she has is we believe it’s a fairly good division."

The following colloquy then took place:

[HUSBAND'S ATTORNEY]: If it please the Court, could we have a brief recess?

THE COURT: We can, but my problem here, ... just so we're all clear, is you're telling me about all this property, nobody’s telling me what it’s worth, nobody’s telling me how much money is in the bank accounts, nobody’s telling me even how many bank accounts there are, and at some point in time I'm going to have to try to divide this property evenly between these parties, and it’s very difficult to do if nobody’s telling me what the value of anything is.

[HUSBAND'S ATTORNEY]: May I speak with counsel for a moment?

THE COURT: You certainly may.

....

THE COURT: I understand the two of you have agreed after a brief conference ... that all bank accounts, basically, essentially, balance?

[HUSBAND'S ATTORNEY]: Yes.

THE COURT: And each just get their own bank accounts. And the Edward Jones account, even though it’s in both names, should be considered one of [Husband]’s accounts?

[WIFE'S ATTORNEY]: Yes.

[HUSBAND'S ATTORNEY]: That’s correct.

At the conclusion of the evidence and testimony, the trial court requested the parties submit proposed judgments.

In Husband’s proposed judgment, Husband failed to set forth any values for a substantive portion of the property, including the real property, except the joint Edward Jones account listed at approximately $ 25,000. Husband’s proposed judgment also failed to distinguish between marital and nonmarital property, and there was no reference to his nonmarital Dodge truck. It further stated that "[Wife] and [Husband] stipulated and agreed that the division of property as to value was equal."

On March 19, 2018, the trial court entered its "Findings of Fact and Conclusions of Law and Judgment and Decree of Dissolution of Marriage." The trial court awarded Wife her personal belongings; 401K and/or retirement...