In re Marriage of Looney

• Decision Date: 22 May 2009
• Docket Number: No. SD 29161.,SD 29161.
• Citation: 286 S.W.3d 832
• Parties: In re The MARRIAGE OF Janice Louise LOONEY and Bobbie Ray Looney, Janice Louise Looney, Petitioner-Respondent, v. Bobbie Ray Looney, Respondent-Appellant.
• Court: Missouri Court of Appeals

286 S.W.3d 832

In re The MARRIAGE OF Janice Louise LOONEY and Bobbie Ray Looney,

Janice Louise Looney, Petitioner-Respondent, v. Bobbie Ray Looney, Respondent-Appellant.

No. SD 29161.

Missouri Court of Appeals, Southern District, Division One.

May 22, 2009.

James R. Sharp of Springfield, MO, for appellant.

M. Douglas Harpool of Springfield, MO, for respondent.

JEFFREY W. BATES, Judge.

The trial court's judgment dissolved the marriage of Bobbie Looney (Husband) and Janice Looney (Wife), divided the parties' marital property and debts, and awarded maintenance and attorney fees to Wife. Husband appealed. He contends the trial court erred in: granting maintenance to Wife (Point I); finding the entire balance of a savings account in Husband's name alone to be marital property (Point II); and awarding attorney's fees to Wife (Point III). Because Point II has merit, the judgment must be reversed. That ruling obviates the need to address Points I and III. The cause is remanded for further proceedings consistent with this opinion.

I. Standard of Review

In this court-tried case, appellate review is governed by Rule 84.13(d). In re Marriage of Denton, 169 S.W.3d 604, 606 (Mo. App.2005).¹ This Court must affirm the trial court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. In re Marriage of Dolence, 231 S.W.3d 331, 333 (Mo.App.2007).

II. Factual and Procedural Background

Wife filed a dissolution petition in May 2006, and the trial took place in October 2007. The parties presented the following evidence relevant to the dispositive issue on appeal.

Wayne Whitehead (Whitehead) was born near Springfield, Missouri, in August 1912. He grew up in this area and then moved to California, where he resided for many years. After he had a stroke which partially paralyzed the right side of his body, he returned to Missouri and purchased a home in Springfield.

Wife was Whitehead's second cousin. Wife's mother, Louise Sheppard (Sheppard), married Whitehead after he returned to Missouri. Their marriage, which took place in the mid-1990's, lasted about six months. Despite the divorce, Whitehead and Sheppard remained very close. They lived near each other, and Sheppard helped take care of Whitehead. He was invited to family dinners, holiday celebrations and birthday parties. Sheppard went to Whitehead's house to keep him company, bought groceries, cooked meals for him and gave him his medicine. Wife and her sister, Suzanne Scott (Scott), cleaned Whitehead's duplex for about a month and then stopped. Thereafter, Sheppard did the cleaning.

Husband and Wife got married in April 1998. At that time, Husband was 56 and worked at Hiland Dairy. Wife was 57 and worked at a flea market. They sold their separate residences for a net profit of approximately $31,500. These funds and a bank loan of approximately $116,000 were used to purchase a marital home. As of the date of trial, this house had an appraised value of $165,000.

After the couple's marriage, Husband and Whitehead became friends. In 1999 or 2000, Husband started helping care for Whitehead. He mowed and trimmed Whitehead's yard, worked in the garden, cooked for him or took him out to eat, did household repairs, took him to doctor's appointments, drove him to medical supply stores and helped him prepare his taxes.

When the flea market closed in 2001, Wife retired. At the end of 2002, Husband also retired from his job. Once Husband retired, he began spending a significant amount of time at Whitehead's house. Generally, Husband would arrive at Whitehead's home around 8:30 a.m. and stay until around noon three or four days per week. A few times, Husband was at Whitehead's house five or six days per week. Whitehead developed diabetic sores on one of his lower extremities and became wheelchair-dependent. Sometimes, Whitehead would call Husband in the middle of the night and ask for assistance. Husband would go to Whitehead's house to help him. Wife did not go along. At one point, Whitehead was in the hospital for over a month for treatment of a heart condition and diabetes. Husband spent a substantial amount of time at the hospital with Whitehead.

In November 2002, Whitehead paid off the loan on the parties' marital residence. At that time, the remaining balance was $105,487.36. Wife did not tell Scott about this occurrence. When she found out, she was very angry. The sisters stopped speaking to each other. To repair this familial rift, Wife decided to give Scott about half of the money the Looneys had received from Whitehead. In August 2003, Husband and Wife borrowed about $60,000 using the marital residence as collateral. Scott received $47,000 of those loan proceeds. Husband was not happy about giving any money to Scott because he felt she did not deserve it. When Whitehead found out what had happened, he was angry. Wife was later told by Sheppard that Whitehead did not want Wife or her sister to visit or clean his house any longer.

In April 2004, Whitehead asked Husband to take him to Signature Bank. Sheppard also went along. Whitehead had two certificates of deposit with him. Each certificate had a pay-on-death (POD) beneficiary designation. One named Sheppard as a beneficiary. The other certificate of deposit, with a face amount of $90,000, had been taken out in October 2001. This certificate listed Pete Rhodes, who was Whitehead's friend, as the POD beneficiary. Whitehead asked a bank employee to change the POD beneficiary designation on this certificate to "POD [Husband] (NO LDPS)."² Husband had not requested the change, and this was the first time he learned of Whitehead's intentions.

Later, Wife learned from Sheppard that Husband had been named as the POD beneficiary. Wife did not believe Husband's name should have been placed on the certificate. Instead, Wife thought the money should go to Sheppard. At no time did Wife state that she believed her name should have been placed on the certificate.³ Wife never discussed the issue with Whitehead.

During the marriage, Husband and Wife had a joint checking account at Guaranty Bank that was used by Wife. Husband and Wife also had a joint checking and joint savings account at Community Federal Credit Union (Community Federal). Husband and Wife began having marital problems in May 2005.

Whitehead died on March 21, 2006. Husband obtained a death certificate and presented it to Signature Bank so he could obtain the proceeds of the certificate. On April 28, 2006, the bank issued a $112,184.93 cashier's check to Husband as beneficiary of the certificate of deposit. By that point in time, Husband knew Wife intended to leave the marital home. Husband went to Community Federal and opened a new savings account in his name only. The savings account had an interest rate of 1.97%. Husband deposited the cashier's check into this new account.⁴ At the same time this deposit was made, Husband also transferred $320.60 from the parties' joint checking account at Community Federal into Husband's new savings account. He withdrew about $8,300 to pay off the loan on a boat, which was a marital asset.

Husband and Wife separated on May 6, 2006. In July 2006, Husband transferred $5,826.12 from the parties' joint checking account at Community Federal into Husband's savings account. Between April 2006 and the time of trial, the balance in Husband's savings account was reduced to $95,843.36. Husband used the proceeds to pay the boat loan, deposition expenses, attorney's fees incurred by both parties and income taxes.

At trial, Husband claimed that the $112,184.93 proceeds of the certificate of deposit were his separate property. Wife claimed it was marital property. Wife testified that she assumed Whitehead intended to benefit her, even though the POD designation listed only Husband. This one contested asset was more valuable than any other except the marital home.

The trial court decided that the certificate of deposit proceeds were marital property. The court explained the proceeds were "initially deposited in a joint marital savings account" and "[t]here is no reason to believe that Mr. Whitehead intended to exclude his own relative from sharing in the proceeds of the certificate of deposit, nor that he intentionally placed any significance on using only [Husband's] name on the certificate of deposit as beneficiary since he was unaware of any marital discord between the parties and would have had ... reason to believe that as a married couple, both would benefit from the proceeds of the certificate of deposit." The court further found that "even if the proceeds of the certificate of deposit were found to be the separate marital property of [Husband], that he would have commingled the proceeds of the certificate of deposit when he deposited it into a marital savings account in which [Wife] had equal ownership rights."⁵ Therefore, the court decided the remaining $95,843.36 balance in the savings account was marital property. The court noted that "the difference between it and the initial proceeds from the certificate of deposit were spent on reasonable and necessary marital expenses of the parties. ..." The court then divided the parties' marital assets and debts, granted Wife's request for maintenance and awarded her attorney's fees. This appeal followed.

III. Discussion and Decision

In Point II, Husband contends the trial court's ruling that the money Husband received pursuant to the POD beneficiary designation was marital property is not supported by substantial evidence and was based upon a misapplication of the law. Because this point affects the entire appeal, it will be discussed first.

"The identification of property as marital or separate is in the broad discretion of the trial court." Winter v. Winter, 167 S.W.3d 239, 243 (Mo.App.2005). Section 452.330.3 creates a presumption that all property acquired by either spouse...