Jinks v. Jinks

• Decision Date: 25 November 2003
• Docket Number: No. WD 61814.,WD 61814.
• Citation: 120 S.W.3d 301
• Parties: Teresa Sue JINKS, Respondent, v. Kenneth Shelley JINKS, Appellant.
• Court: Missouri Court of Appeals

120 S.W.3d 301

Teresa Sue JINKS, Respondent, v. Kenneth Shelley JINKS, Appellant.

No. WD 61814.

Missouri Court of Appeals, Western District.

November 25, 2003.

Janet L. Burmeister, Independence, MO, for Respondent.

Dennis J. Campbell Owens, James W. McManus, Co-Counsel, Kansas City, MO, for Appellant.

Before JOSEPH M. ELLIS, C.J., ROBERT G. ULRICH and RONALD R. HOLLIGER, JJ.

ROBERT G. ULRICH, Judge.

Kenneth Jinks (Husband) appeals the judgment of the trial court dissolving his marriage to Teresa Jinks (Wife) and dividing the parties' property. He contends that the trial court erred in awarding the parties' home and most of their bank and investment accounts to Wife. The judgment of the trial court is affirmed.

The parties were married on March 28, 1981. No children were born of the marriage. Wife owned a home in Independence before her marriage to Husband, and the couple lived in that home throughout their marriage. Shortly after the couple married, they obtained a $14,000 home equity loan and had a pool installed at the home.

Husband worked for Wilcox Electric when he met Wife. When the company wanted to transfer him to California, Husband resigned. Shortly after the wedding, he began working as an accounting manager at Comprehensive Mental Health Services. He was eventually promoted to finance director and worked at Comprehensive for thirteen years until he retired in 1997.

Wife worked full time as a showroom designer for a fabric company for the first five years of the marriage. When the company closed its Kansas City office, Wife began working part time for the Jackson County Election Board. In 1987, Wife started her own business, a tanning and nail salon. The couple obtained a $40,000 home equity loan to finance the business. Wife owned the salon until 1995.

After twelve years of marriage, Wife executed a quit claim deed in 1993 titling the Independence home in both parties' names. In 1995, Wife discovered that Husband was having an affair and filed for divorce. The couple reconciled. Husband convinced Wife to sell her business so they could spend more time together and because it was not profitable. Wife, however, continued to work out of her home as a licensed nail technician two days a week until the time of trial.

In May 2001, Wife suspected Husband was having another affair. Two months later, Husband told Wife that he was unhappy in the marriage and that he wanted a divorce. Shortly thereafter, Wife filed her petition for dissolution of marriage. Husband filed a counter petition.

Following a trial, the court entered its judgment dissolving the parties' marriage. It valued the Independence home at $145,000 and classified $95,000 of it as Wife' nonmarital property and the remaining $50,000 as marital property. It found that Wife presented clear and convincing evidence at trial that she did not intend a gift to the marriage when she titled the home in both parties' names in 1993. The trial court awarded Wife the marital portion of the home along with a time share, her car, checking and savings accounts, life insurance policy, personal property, and four investment accounts for a total value of $267,212. It also set aside to her $8,650 of the marital debts.

The trial court awarded Husband marital property consisting of a lake house, two time shares, two automobiles, two boats, a Cesna airplane and a hanger, a checking account, life insurance policy, and personal property with a total value of $280,285. The court ascribed to him $58,250 of the marital debt, most of which included the mortgage on the lake house. In dividing the marital assets as it did, the trial court found that Husband had two extramarital affairs and that during the pendency of the action throughout 2001, he intentionally squandered approximately $77,500 of marital assets.

This appeal by Husband followed.

Standard of Review

In a dissolution proceeding, the judgment of the trial court will be affirmed on appeal unless no substantial evidence supports it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Henning v. Henning, 72 S.W.3d 241, 245 (Mo.App W.D.2002). The trial court has broad discretion in classifying and in distributing marital property. Runge v. Runge, 103 S.W.3d 804, 808 (Mo.App. E.D.2003); Henning, 72 S.W.3d at 245. An appellate court will only reverse the trial court's division of property if the division is so unduly weighted in favor of one party as to constitute an abuse of discretion. Henning, 72 S.W.3d at 245.

Independence Home

In his first point on appeal, Husband claims that the trial court erred in awarding Wife the Independence home. The trial court classified $95,000 of the home as Wife's nonmarital property. It classified the remaining $50,000 as marital property and awarded it to Wife. Husband contends that the entire value of the home was marital because after the marriage, the home was jointly titled in both parties' names and because he paid off substantial debts on the home.

Property is non-marital if one spouse owned it before the marriage and retained separate title to it after marriage. DeMayo v. DeMayo, 9 S.W.3d 736, 742 (Mo.App. W.D.2000). Under the theory of transmutation, a spouse may transmute a piece of separate property to marital property by express or implied agreement or by gift.¹ McAllister v. McAllister, 101 S.W.3d 287, 293 (Mo.App. E.D.2003). Placing separate property of a spouse into the joint names of both spouses creates a rebuttable presumption that the property has been transmuted into marital property. DeMayo, 9 S.W.3d at 742. This presumption can only be rebutted with clear and convincing evidence that the owner spouse did not intend to convert the property to marital property. Id. Clear and convincing evidence is evidence that "instantly tilts the scales in the affirmative when weighed against the evidence in opposition, and the fact finder's mind is left with an abiding conviction that the evidence is true." Montgomery v. Montgomery, 18 S.W.3d 121, 124 (Mo.App. S.D. 2000). Parol evidence is admissible to show the parties' intent; however, self-serving testimony that a spouse did not intend to transmute separate property to marital property is entitled to little weight. Schroeder v. Schroeder, 924 S.W.2d 22, 28 (Mo.App. E.D.1996).

In this case, Wife owned the Independence home prior to the marriage. Approximately twelve years into their marriage, Wife executed a quit claim deed titling the home in both her and Husband's names. This action created a rebuttable presumption that the home transmuted into marital property. The issue, therefore, is whether Wife presented clear and convincing evidence that she did not intend to transmute the property. Wife testified that she felt forced to sign the new deed because, at the time of the conveyance, she was in poor health and unable to pay the taxes and insurance on the home. She explained that Husband told her he would not pay the taxes and insurance unless she put his name on the title. Husband confirmed at trial that he told Wife that if he had to pay the taxes, insurance, and home equity loan payments on the home he wanted his name on the title. Based on this evidence, the parties intended the transfer to be a business transaction rather than a gift. Fearing she would lose the property because she could not pay the taxes and insurance, Wife perceived Husband's payment of those expenses to be consideration in exchange for her titling the home in the parties' joint names. Whether Husband's payment of the home's insurance and taxes was actually proper consideration is questionable, however. While Husband testified that he paid off the home equity loans and the taxes and insurance on the home, nothing in the record indicates that these were paid with anything other than the income he earned during the marriage, which is presumed to be marital property.² § 452.330.3, RSMo 2000; King v. King, 66 S.W.3d 28, 35-36 (Mo.App. W.D.2001)(property acquired during marriage, including income earned by a spouse, is presumed to be marital property, and party claiming that the property is separate property bears burden of proving property is separate property by clear and convincing evidence).

Whether clear and convincing evidence was presented to rebut the presumption that the Independence home was converted to marital property and, thus, whether the trial court erred in classifying a portion of the home as Wife's nonmarital property need not be decided. Error in classifying property is not necessarily prejudicial unless it materially affects the merits of the action. Montgomery, 18 S.W.3d at 125; In re Marriage of Jennings, 910 S.W.2d 760, 765 (Mo.App. S.D.1995). "Although transmutation determines the character of property (whether it is marital or separate), it does not determine the division of the property (how much should be apportioned to each spouse)." DeMayo, 9 S.W.3d at 742. The mere erroneous classification of property, where the decree is nonetheless fair, will not require a reversal. Burk v. Burk, 936 S.W.2d 144, 145 (Mo.App. S.D.1996)(quoting In re Marriage of Garrett, 654 S.W.2d 313, 316 (Mo. App. S.D.1983)). Thus, in this case, even if the entire value of the home was marital property, the misclassification of part of it as Wife's separate property did not render the trial court's distribution of property unfair for the reasons specified in the discussion of Husband's next two points.

Bank and Investment Accounts

In his second and third points on appeal, Husband claims that the trial court erred in awarding most of the parties' bank and investment accounts to Wife. He contends that the evidence of his misconduct did not justify a disproportionate division in property and that he contributed much more to the acquisition these funds.

Section 452.330.1, RSMo 2000, governs the trial court's distribution of property in a...