Jenkins v. Jenkins

Decision Date19 June 2012
Docket NumberNo. WD 74148.,WD 74148.
Citation368 S.W.3d 363
PartiesJoe Venton JENKINS, Respondent, v. Evelyn Sue JENKINS, Appellant.
CourtMissouri Court of Appeals

OPINION TEXT STARTS HERE

Karl Timmerman, St. Holden, MO, Ronald Ribaudo, Clayton, MO, for Appellant.

Edward Houlehan, Kansas City, MO, for Respondent.

Before: THOMAS H. NEWTON, P.J., JAMES M. SMART, JR., and GARY D. WITT, JJ.

THOMAS H. NEWTON, Presiding Judge.

Ms. Evelyn Sue Jenkins appeals the trial court's judgment of dissolution, contesting its property division. We find that the trial court erred in identifying Ms. Jenkins's wedding rings as marital property. We remand to the trial court to award the wedding rings to Ms. Jenkins as nonmarital property and to adjust the marital property division as the trial court finds is reasonable under the evidence. In all other respects, we affirm.

Factual and Procedural Background

The parties married in 2002 and separated in 2009. At the dissolution trial, Mr. Jenkins testified that at the time of marriage, he had assets approximating $235,000, including a 40–acre farm, while Ms. Jenkins had assets approximating $6,000 and debts over $20,000. Ms. Jenkins disputed the amount of her assets and debts.

After the marriage, Ms. Jenkins quit her job and moved to Mr. Jenkins's farm. She then worked part-time for about nineteen months, but because the position required her to spend two to four nights a week away from home, she resigned. Mr. Jenkins testified that he generated about eighty-five percent of the income during the marriage. Ms. Jenkins testified that her earnings, social security, and unemployment benefits all went into their marital accounts.

Mr. Jenkins executed a deed placing Ms. Jenkins's name on the farm. He testified that he “wanted [her] to feel that what [he] had was part of hers.” In January 2008, Mr. and Ms. Jenkins created a living trust and conveyed the title of the property to the trust. The trust documents were not provided on appeal.

In 2007, Ms. Jenkins wrote Mr. Jenkins a note saying that she wanted to sell the farm and move and that, absent a move, separation was inevitable. In November 2008, the company Mr. Jenkins worked for dissolved. In October 2009, Ms. Jenkins left the parties home and moved to Texas.

Mr. Jenkins testified that after the separation, he learned that Ms. Jenkins had opened a Commerce checking account, a Commerce savings account, a Wells Fargo account, and a Compass Bank account in her own name; had purchased a $20,000 CD and a $5,000 CD in her own name; and had withdrawn a cashier's check for $10,000. On cross-examination, he admitted that they both picked up the mail and he saw statements from Commerce Bank, but stated he had assumed they were for her credit cards.

Ms. Jenkins testified that Mr. Jenkins had full knowledge of the accounts, that Mr. Jenkins agreed to put money into a separate savings account because of concerns about identity theft, and that she set up the accounts with Mr. Jenkins as beneficiary. Ms. Jenkins further testified that she opened the Compass Bank account so they would have funds to purchase a home in Texas. On cross-examination, Mr. Jenkins elicited evidence that Ms. Jenkins had $62,720 in accounts at the time she left Mr. Jenkins and that Mr. Jenkins had $32,506.

Mr. Jenkins testified that his income was $1,662 in social security, with $400 of that amount deducted for a former spouse, and his expenses were $2,200. He had approximately $20,000 in monetary assets at the Bank of Grain Valley. In April 2011, his appraiser valued the farm at $185,000. Mr. Jenkins asked the court to award him, inter alia, the farm, several vehicles, a CD at Grain Valley titled in both parties' names in the amount of $26, 777, the Bank of Grain Valley accounts, and Ms. Jenkins's wedding ring set, for which he testified he paid $3, 800.

Ms. Jenkins requested maintenance and her attorney fees. She testified that her income was $680 a month and her expenses were $2,075. Ms. Jenkins asked for, inter alia, her car, the boat and trailer, half of the Grain Valley CD, and half of the farm.

At the close of trial, the trial court noted that Ms. Jenkins had asked and conclusions of law and the trial court asked Ms. Jenkins to submit proposed findings. No documentation of a submission of proposed findings appears in the record on appeal.

The trial court subsequently dissolved the marriage and determined whether the parties' property was non-marital or marital. The trial court identified the farm as marital property with a value of $185,000 and awarded it to Mr. Jenkins, along with his checking and savings accounts at the Bank of Grain Valley and half of the Grain Valley CD. It awarded as marital property to Ms. Jenkins “all bank accounts at Commerce Bank,” the Wells Fargo account, half of the Grain Valley CD, debt owed by her son of $3,500, and her wedding rings. 1 The trial court denied maintenance and ordered each party to bear their own attorney fees. Ms. Jenkins appeals.

Standard of Review

Our review of the trial court's dissolution decision is under the standard of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Selby v. Selby, 149 S.W.3d 472, 482 (Mo.App. W.D.2004). We affirm the trial court's decision “unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law.” Id. All evidence and the reasonable inferences drawn therefrom are viewed in the light most favorable to the court's decision and we disregard contrary evidence. Id.

Legal Analysis

Ms. Jenkins raises four points on appeal. She challenges the trial court's characterization of the farm and the wedding rings as marital property. She further argues that the trial court erroneously found that she committed misconduct to justify its distribution of marital property, and that its findings of fact were inadequate under Rule 73.01(c). For ease of discussion, we address her points out of order.

Characterization of the Farm

In the first point, Ms. Jenkins argues that the trial court erred in characterizing the farm as marital property and awarding it to Mr. Jenkins because it was non-marital property owned by the Jenkins Trust. She contends that she should have been awarded her share of the realty as separate property “per the terms of the trust.” Alternatively, she contends Mr. Jenkins gave her half the property as a gift of non-marital property when he added her name to the title.

The trial court follows a two-step procedure in a dissolution proceeding. Id. at 482–83. It initially awards each spouse their respective non-marital property and then, considering all the relevant factors, it divides the marital property “in such proportions as [it] deems just.” Id. (quoting § 452.330). Section 452.330.1 2 directs the court to consider “all relevant factors,” in this division, including:

(1) The economic circumstances of each spouse at the time the division of property is to become effective ...;

(2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;

(3) The value of the nonmarital property set apart to each spouse;

(4) The conduct of the parties during the marriage;

“However, the trial court may attach the amount of weight to each of these it deems appropriate, and these factors are not exclusive.” Seggelke v. Seggelke, 319 S.W.3d 461, 465 (Mo.App. E.D.2010). The court's division does not have to be equal; rather the division must be “fair and equitable.” Selby, 149 S.W.3d at 491. Property acquired during the marriage is generally considered marital property, subject to certain exceptions. Id. at 483;§ 452.330. Because of this statutory presumption, “non-marital property must be proven by clear and convincing evidence.” Blydenburg–Dixon v. Dixon, 277 S.W.3d 815, 819 (Mo.App. W.D.2009)

We reject Ms. Jenkins's argument that since the parties placed the farm in a trust, it became each of the parties' separate non-marital property. The parties created the trust for estate planning purposes. See Selby, 149 S.W.3d at 488 (rejecting argument that property placed into a trust became that party's separate non-marital property where the trusts “were clearly set up only to deal with the parties' property after death, not divorce.”). Mr. Jenkins testified that Ms. Jenkins suggested the trust as a means to avoid probate and that it was an estate planning idea. We routinely find property placed into a trust during the marriage to be subject to division at dissolution: while the trustees may hold legal title, “the equitable interest in the trust is subject to classification and division by the trial court.” Seggelke, 319 S.W.3d at 467. Further, here the evidence was that the parties were also the co-trustees. Finally, as we noted in Selby, even property placed in trust under the name of one spouse may be deemed marital property. 149 S.W.3d at 488. Just as the “name on the trust does not impact the classification of the property in the trust,” the creation of the trust does not remove the property within it from a determination that it is marital property. Id. To re-characterize property as non-marital simply because of its placement in a trust is against public policy and [t]estamentary trusts ... are not created to change the character of the property or to prepare for divorce.” Id. Thus, we reject Ms. Jenkins's argument that the creation of the trust vested separate non-marital property to each party.

Ms. Jenkins further argues that because Mr. Jenkins earlier added her name to the farm's title and later placed it into the Trust, Mr. Jenkins gave her half the property as a gift and it became her separate property. We do not agree. Adding a spouse to the title of the property transmutes separate non-marital property into marital property. Selby, 149 S.W.3d at 490–91. “Placing separate property into the names of both spouses creates a presumption that the property has been transferred to...

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    ...failure to make findings must be properly raised in motion to amend to be preserved for appellate review); see also Jenkins v. Jenkins, 368 S.W.3d 363, 369 (Mo.App.2012). 3. In any event, Director's counsel appears to have acquiesced in the trial court's ruling by stating, “Well, then that'......
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    ...review of a dissolution judgment is under the standard of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Jenkins v. Jenkins, 368 S.W.3d 363, 366 (Mo.App. 2012). We will affirm the circuit court's judgment unless there is no substantial evidence to support it, it is against the weight ......
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1 books & journal articles
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