In re Marriage of Maninger, ED 81303.

Citation106 S.W.3d 4
Decision Date20 May 2003
Docket NumberNo. ED 81303.,ED 81303.
PartiesIn re the MARRIAGE OF Lyle F. MANINGER and Kathryn M. Maninger, Lyle F. Maninger, Petitioner/Appellant, v. Kathryn M. Maninger, Respondent/Respondent.
CourtCourt of Appeal of Missouri (US)

Douglas R. Beach, Ruth Kraus, St. Louis, MO, for appellant.

Hardy C. Menees, JoAnn Trog, Menees, Whitney, Burnet & Trog, St. Louis, MO, for respondent.

KATHIANNE KNAUP CRANE, Judge.

Husband appeals from a decree of dissolution of marriage. He challenges the classification of marital property, award of maintenance, and award of attorney's fees. We reverse and remand the maintenance award. In all other respects we affirm.

Lyle F. Maninger [husband] and Kathryn M. Maninger [wife] were married on June 29, 1968. During the marriage they had three children, all of whom were adults at the time of trial.

Husband was employed as the Chief Planning Examiner for the City of St. Louis, from which he earned over $70,000 in gross wages in 2001. He also received investment income of $1,730 per month. From approximately 1971 through 1992, husband maintained a private architectural practice in addition to his job with the city.

For over 27 years wife had been employed as a kindergarten teacher at parochial schools. For approximately 20 years wife had also held a second job with Sport-service, which operates concession services for professional sports teams. Her duties, at both the baseball stadium and the football dome, which span most of the year, included training concession employees and volunteers, supervising the concession stands during games and special events, and reconciling concession receipts after games. These jobs, taken together, provided her with an average net monthly income of $3,151.38.

Wife suffers from asthma, chronic obstructive pulmonary disease, vasculitis, idiopathic edema, adrenal atrophy, and obesity, the latter two conditions caused by the extended use of prescribed steroids. All of these conditions limit wife's ability to walk. As a result, the stadium has provided her a motorized cart to use at the Cardinal's games, and she is allowed to work from an office close to the entry at the football dome.

Husband received annual checks from his mother from 1982 through 1999 totaling $159,000. Husband also inherited approximately $40,000 in the 1970's. In 1999 he created a trust that opened a new account at Stifel Nicolaus ("Stifel Nicolaus trust account"). By the time of trial, the Stifel Nicolaus trust account was valued at approximately $769,552. Husband also had $170,000 in cash remaining in a Kansas safe deposit box in his and his mother's names from the $200,000 he had placed there when he cashed CD's in 1999 and 2000. He admitted that this was marital property. In addition, husband maintained a money market account which had $16,607 before he paid 85,000 in attorney's fees, and a checking account which had been reduced to $1,000.

Husband had physically abused wife during the course of the marriage. In December, 1981 husband moved into the basement where he resided for nineteen years, during which time he did not pay for the family's food, the children's elementary tuition, the son's high school tuition, two years of one daughter's and one year of the other daughters' high school tuition, and the children's college tuition. Husband concealed the existence of the Stifel Nicolaus trust account and other accounts from wife. Husband began an extra-marital affair in the summer of 2000. He moved out of the residence in October, 2000.

Husband filed a petition for dissolution of marriage on December 6, 2000. At trial, the parties stipulated that, if husband's mother were called as a witness, she would testify that the checks she wrote to husband were gifts to him. They also stipulated that Exhibits 27 and 28 were the estate records of husband's father and aunt.

At trial, husband claimed that the $199,000 in checks and inheritance money he received from his family were contained in the Stifel Nicolaus trust account and constituted his separate property. He admitted that the Stifel Nicolaus trust account became the final depository of funds that had been in husband's two prior Stifel Nicolaus accounts, cash from $30,000 in marital savings bonds, the net cash he received from his private architectural practice that had originally been deposited in money market accounts and later in one of the prior Stifel Nicolaus accounts, proceeds on the sale of an automobile that had previously been deposited in a passbook account, $30,000 plus interest from savings accounts that had been in the children's names in 1990 and subsequently deposited in accounts in husband's name, $20,000 plus interest from savings accounts that had been in the children's names in 1979 and subsequently deposited in accounts in husband's name, and other marital funds.

Husband was unable to state what percentage of the trust account assets represented money received from his mother or from inheritance and what percentage of the account represented money from marital sources. He testified that he had purchased CD's at several savings and loans with the inheritances and some of the checks and, at a later point in time, had put some of the checks and proceeds from CD's in one of his two prior Stifel Nicolaus accounts. However, he could not trace any of the checks he received from his mother through his past accounts to the current Stifel Nicolaus trust account. He could not testify when his prior Stifel Nicolaus accounts had been opened.

Dr. E.J. Cunningham, a board certified general internist, who has been wife's primary care physician since 1974, testified to wife's medical conditions. He further testified that she was on ten medications and would have to continue taking them for the indefinite future and that most of her conditions were progressive. He testified that he was surprised that wife was still working her second job, given the state of her health. He expressed his opinion that wife's physical condition, including the progressive nature of the asthma and damage done by continued steroid use to treat her asthma, "make her ability to pursue one job full time, much less a second, doubtful." He further testified that, in his opinion, she would not be able to work her primary job much longer.

The trial court entered its Judgment of Dissolution of Marriage on April 22, 2002. It found that husband failed to meet his burden of proof that the $199,000 he attributed to gifts and inheritance was separate property. The court found the mere existence of the cancelled checks and estate documents from years past constituted insufficient evidence that the sums so represented could be traced to any specific present account, and that, even if they could be traced to the Stifel Nicolaus trust account, they would still be commingled with large amounts of marital property. The court found the entire Stifel Nicolaus trust account to be marital property. The court found that there was no separate property to be set aside to either party other than incidental items of personal property and awarded wife 58% of the marital property.

The court found wife to be a candidate for modifiable maintenance and awarded wife $1,000 per month. The court found husband was culpable of marital fault in physically abusing wife and emotionally abusing the children, and in engaging in an extra-marital affair before the parties separated in October, 2000. The court awarded wife $18,154.35 for attorney fees and litigation expenses. Husband appeals from this judgment.

DISCUSSION

Our standard of review in a dissolution case is governed by Murphy v. Carron, 536 S.W2d 30, 32 (Mo. banc 1976). We will sustain the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Reed v. Reed, 969 S.W.2d 287, 288 (Mo. App.1998). We view the evidence and permissible inferences therefrom in the light most favorable to the trial court's decree and disregard all contrary evidence and inferences. Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991). We defer to the trial court's determination of the credibility of the witnesses. Rapp v. Rapp, 789 S.W.2d 148, 150 (Mo.App.1990).

1. Classification of Marital Property

For his first two points husband challenges the trial court's classification of the property that he contends he acquired as gifts or inheritances during the marriage as marital property. He argues that the ruling was contrary to the evidence because the parties stipulated that the gifts from his mother and inheritances from his family were made solely to him and that it misapplied section 452.330.4 RSMo (2000), which provides: "Property which would otherwise be non-marital property shall not become marital property solely because it may have become commingled with marital property."

The Dissolution of Marriage Act consigns the division of marital property to the sound discretion of the trial court. Dardick v. Dardick, 670 S.W.2d 865, 868 (Mo. banc 1984). We "must defer to the trial court's judgment unless the judgment is improper under the principles of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), or an abuse of discretion is shown." Id.; Burbes v. Burbes, 739 S.W.2d 582, 585 (Mo.App.1987). "A trial court possesses broad discretion in identifying marital property." Absher v. Absher, 841 S.W.2d 293, 294 (Mo.App.1992). When characterizations of property as marital or separate rest on an assessment of witness credibility, we defer to the trial court's determination of that credibility. Feinstein v. Feinstein, 778 S.W.2d 253, 261 (Mo.App.1989). We presume the division of marital property to be correct. Halupa v. Halupa, 943 S.W.2d 272, 277(Mo.App.1997). The party challenging the division has the burden to overcome that presumption....

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