Jaeger v. Jaeger

Decision Date08 February 1977
Docket NumberNo. 37170,37170
Citation547 S.W.2d 207
PartiesFrank G. JAEGER, Petitioner-Respondent, v. Thelma C. JAEGER, Respondent-Appellant. . Louis District, Division Three
CourtMissouri Court of Appeals

Hanks, Taylor & Suddarth, W. Morris Taylor, Clayton, for respondent-appellant.

Charles M. M. Shepherd, Clayton, Law Offices of Frank L. Pellegrini, W. T. Weidle, Jr., St. Louis, for petitioner-respondent.

GUNN, Judge.

Petitioner-respondent Frank Jaeger filed a petition for dissolution of his seven year marriage to respondent-appellant Thelma Jaeger. The parties were married in 1968. The marriage was dissolved by court decree, and a division of marital property ordered but with no maintenance to be paid by either party. Thelma Jaeger has taken an appeal from the trial court's order, contending: 1) that the trial court erred in excluding certain property from the marital estate; 2) alternatively, that if the trial court was correct in determining what constituted marital property, the distribution order was inconsistent with the trial court's findings of fact and conclusions of law; 3) that the trial court erred in finding that she was not entitled to maintenance. We find that the trial court erroneously treated certain property as Frank Jaeger's separate property and reverse and remand.

We initially indite the standard of review governing this appeal: we must sustain the trial court's decree unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976); Blessing v. Blessing, 539 S.W.2d 699 (Mo.App.1976).

The trial court, after ordering the dissolution of marriage, found as a matter of law that there was approximately $60,000 in marital property to be distributed. The $60,000 was itemized as follows:

1. $38,000 in the equity value of the real property, "i. e. after deducting the $8,500 real property interest contributed by the husband" (from the sale of his previous house) and "the $3,100 real property interest contributed by the wife" (from the sale of her previous house) to the purchase of 5109 Towne Center (the current house) for the present value of said property. 1

2. "$16,000 in silver bars, gold coins and silver coins.

3. "Approximately $6,000 other monies considered marital property acquired in various forms of household furnishings, securities, etc."

The court, through a prolix maze of financial data and testimony that would confound an oracle, concluded that neither party's conduct warranted disproportionate distribution and divided the marital property as follows:

To Mrs. Jaeger $15,000 to be paid to her by Mr. Jaeger from his own funds; $16,000 gold and silver in her possession; 2 household furnishings valued at $3,000.

To Mr. Jaeger The parties' house subject to deed of trust, equity value according to the evidence $29,415.15. 3

Mr. Jaeger was also ordered to pay $4,400 in Mrs. Jaeger's attorney's fees.

Not included in the trial court's determination of what constituted marital assets were certain stocks and bonds held by Frank Jaeger at the end of the marriage and his interest in his company's pension plan. As stated by the trial court: "(t)he court concludes as a matter of law that the stock initially held by petitioner, Frank Jaeger, that was sold and converted to stock registered in joint names did not constitute marital property because even though acquired during the course of the marriage, it was an exchange." Conrad v. Bowers, 533 S.W.2d 614 (Mo.App.1975), decided after the trial court's action, makes the trial court's conclusion erroneous as applied to the facts of this case. Thelma Jaeger contends that the trial court erred in excluding such stock, bonds and pension plan interest as part of the marital estate. As there are different issues involved in determining whether the stocks and pension plan interest are marital property we treat them separately.

Prior to the marriage, Mr. Jaeger owned various stocks and bonds valued at approximately $104,000. During the course of the seven year marriage, Mr. Jaeger was involved in numerous stock transactions involving both the stocks he possessed prior to the marriage and stocks acquired during the marriage. When the parties separated, Mr. Jaeger had in his possession approximately $87,000 in stocks and bonds. Mrs. Jaeger contends that these assets should have been considered marital property. Mr. Jaeger, on the other hand, claims that those stocks purchased during the marriage were acquired "in exchange" for property he possessed prior to the marriage, and therefore are his separate property. The trial court agreed with Mr. Jaeger.

To determine what constitutes marital property and what constitutes the separate property of the parties to the marriage, we turn to the Dissolution of Marriage Act for guidance. Section 452.330.1 4 instructs the trial court to set apart to each spouse his property and then divide the marital property in such proportions as the court deems just. "Marital property" is defined in § 452.330.2 as "all property acquired by either spouse subsequent to the marriage." Listed, then, are exceptions to the definition. The exception we are concerned with in this case removes property acquired subsequent to the marriage from the marital estate that was "acquired in exchange for property acquired prior to the marriage." § 452.330.2(2). Furthermore, § 452.330.3 creates a presumption that property acquired subsequent to the marriage is marital property regardless of the status of the title to this property. The party attacking this presumption has the burden of showing that the property in question falls within the exceptions enumerated in § 452.330.2. 5 Conrad v. Bowers, supra. Having set out these statutory guidelines, we now endeavor to apply them to the facts of this case.

For purposes of analysis, we place the stocks and bonds in Mr. Jaeger's possession at the time of separation into three categories: 1) stocks and bonds owned by Mr. Jaeger prior to the marriage and which had been retained solely in his name throughout the marriage; 6 2) stocks and bonds acquired during the marriage with funds not shown to be derived from Mr. Jaeger's separate property; 7 3) and stocks and bonds acquired during the marriage from funds derived from the commingled sale of separate and marital property. 8

The stocks and bonds in the first grouping do not constitute marital property. They were owned by Mr. Jaeger prior to the marriage (and therefore not acquired subsequent to the marriage), and they retained their identity as Mr. Jaeger's own property throughout the marriage; these stocks and bonds were properly considered his separate property by the trial court. Conrad v. Bowers, supra. See also Stark v. Stark, 539 S.W.2d 779 (Mo.App.1976), where the court stated: "(A)ll property acquired by a spouse prior to the marriage and which remains titled in that spouse after marriage is, in the absence of clear intention to contribute that property to the community or to the other spouse, the separate property of that spouse and will not be regarded as marital property." Id., at 782.

The stocks and bonds falling within the second category, those that were acquired during the marriage with funds not shown to be derived from Mr. Jaeger's pre-marriage property, must be treated as marital property. As was noted above, property acquired during the marriage is presumed to be marital property. Conrad v. Bowers, supra; In re Marriage of Powers, 527 S.W.2d 949 (Mo.App.1975). The person attempting to overcome this presumption has the burden of showing that the property comes within the exceptions listed in § 452.330.2. There was no evidence in the record that these stocks and bonds were obtained in exchange for stock owned by Mr. Jaeger prior to the marriage. 9 He thus has failed to overcome the statutory presumption that such stocks are marital property. Therefore, the trial court erred in treating these stocks as Mr. Jaeger's separate property.

The third category of stocks and bonds poses a more difficult problem. We are confronted with the following question: If, during the marriage, a party sells property he owned prior to the marriage and, in addition, sells marital property, and then commingles the proceeds from these sales to purchase new property, is the newly acquired asset marital property or separate property or a mixture of both? We believe that the proper result under the statute is that the newly acquired property so purchased constitutes marital property, irrespective of the state of title of the newly acquired asset. We reach this result relying on the presumption created by the statute that property acquired subsequent to the marriage is marital property. We do not believe that the "exchange" exception found in § 452.330.2(2) is applicable when a person uses both his pre-marriage property and marital property to purchase new property during the marriage. In commingling his own assets with marital assets, the spouse has failed to sufficiently segregate his own property. Such a commingling is indicative of an intent on the part of the owner of the pre-marriage property to contribute it to the marital estate. Thus, the new assets procured from these commingled proceeds must be regarded as marital property. To further clarify our position, we set forth two examples illustrating how stocks now in Mr. Jaeger's possession were acquired from the sale of both stocks he owned prior to the marriage and stocks that constitute marital property. 1. U.S. Bond: The bond was purchased in 1971 and is still in Mr. Jaeger's possession. 10 The purchase price was $4,645. In addition to this purchase, several other stocks and bonds were purchased in 1971 at a cost of approximately $17,000. Mr. Jaeger testified that funds used to make these purchases came from the sale of six different...

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