Jobe v. Jobe

• Court: Missouri Court of Appeals
• Writing for the Court: FLANIGAN; TITUS, P.J., and GREENE
• Citation: Jobe v. Jobe, 708 S.W.2d 322 (Mo. App. 1986)
• Decision Date: 24 March 1986
• Docket Number: 14025,Nos. 14013,s. 14013
• Parties: Randy Gale JOBE, Petitioner-Appellant-Respondent, v. Rita Lynn JOBE, Respondent-Appellant-Respondent.

Page 322

708 S.W.2d 322

Randy Gale JOBE, Petitioner-Appellant-Respondent, v. Rita Lynn JOBE, Respondent-Appellant-Respondent.

Nos. 14013, 14025.

Missouri Court of Appeals,

Southern District,

Division One.

March 24, 1986.

C. Ronald Baird, Dorr and Baird, P.C., Springfield, for Rita Lynn jobe.

W. Henry Johnson, Douglas, Douglas & Johnson, Neosho, for Randy Gale Jobe.

FLANIGAN, Judge.

This action for dissolution of marriage was instituted by Randy Gale Jobe against his wife Rita Lynn Jobe. The parties, who will be referred to by their first names, were married on September 16, 1977. A son Daniel was born October 1, 1980, and a daughter Amanda was born February 6, 1983. The parties separated on June 6, 1984. The trial was held on October 8, 1984, and the court entered a decree disposing of the property, ¹ and awarding Rita maintenance in gross in the sum of $1,200, payable at $200 per month with the last payment due April 1, 1985. The court awarded primary custody of Daniel to Randy and primary custody of Amanda to Rita, ordered Randy to pay Rita $100 per month for child support, granted to each spouse liberal visitation rights with respect to the non-custodial child, and ordered Randy to pay $635 in attorney's fees for Rita. Both Rita and Randy appeal.

Randy challenges the trial court's disposition of the property. Rita challenges the "split custody" provision of the decree and argues that she should have been awarded primary custody of both children. Randy's appeal will be considered first.

Randy claims, in general, that the trial court erred in (1) distributing the Granby property, which is the family residence, to Rita, (2) placing a value of $5,000 on Randy's claims for personal injury and property damage, (3) awarding the farm equipment to Randy, (4) treating the five-acre tract as Rita's separate property rather than as marital property, and (5) not giving Randy his fair share of the marital property.

Randy was previously married and that marriage was dissolved in December 1976. During the former marriage Randy lived in a house on Walnut Drive in Neosho. The Walnut Drive property was purchased for $8,000 and the title to it was initially held by Randy's parents. Apparently the entire purchase price was financed, for Randy testified that, prior to his marriage to Rita, Randy paid "$3,000 to $4,000" on that mortgage and reduced the balance to "4,500 TO $5,000" BY THE TIME HE MARRIED rita. on september 1, 1979, randy's parents, by general warranty deed, conveyed the Walnut Drive property to Randy and Rita, "husband and wife."

In February 1977, prior to her marriage to Randy, Rita bought a five-acre tract in Newton County. The purchase price was $5,000 and Rita obtained a purchase money loan in that amount, secured by her automobile and by the five-acre tract itself. Rita's payments on that loan reduced it to $4,400 before she married Randy. After that marriage the balance of the loan was paid with marital funds. Rita's evidence showed that the value of the five-acre tract at time of trial was $5,000 and Randy's brief, tacitly adopting that evaluation, states, "Randy is entitled to consideration of the $4,400 contribution to Rita's separate property [the five-acre tract]."

In October 1979 the "Granby property" was purchased by Randy and Rita for $36,000. This was the "home place" consisting of the family residence and 28 acres. It is located "right across the road" from the five-acre tract. At the time the Granby property was purchased, Randy and Rita placed a second mortgage on the Walnut Drive property in order to make a $10,000 down payment on the Granby property. In 1982 Randy and Rita sold the Walnut Drive property for $19,500. They used $14,000 of that amount to pay the balance of the original mortgage on the Walnut Drive property and to pay the second mortgage on it which had secured the $10,000 down payment on the Granby property.

Throughout their marriage, both Randy and Rita were employed. Randy is an accountant and works for a health care service in Webb City. At time of trial Randy's monthly "take home" pay was approximately $1,280. Rita was employed at a manufacturing company in Granby and her monthly "take home" pay was approximately $700.

Randy's first point is that the trial court erred in distributing to Rita the Granby property as a portion of her share of the marital property. Randy argues that the trial court should have ordered the sale of the Granby property or should have awarded Randy a lien on it. Randy's brief states: "Randy's separate contribution, from him or from his parents, to the marital estate from the Walnut Drive property, amounted to $13,500, of which $10,000 could be traced to equity in the Granby property."

Although the trial court made certain voluntary findings of fact, none pertinent here, neither side requested the trial court to give "a statement of the grounds for its decision," or to include finding "on such controverted fact issues as have been specified by counsel." See Rule 73.01. ²

The Walnut Drive property was sold by the parties before this action was commenced. Randy argues, in effect, that he brought the Walnut Drive property into the marriage and that the trial court failed to give due weight to that fact.

The primary difficulty with Randy's contention is that it lacks factual support. Randy stated, on cross-examination, that at the trial of his first divorce action, which took place in December 1976, he gave testimony that the Walnut Drive property was owned by his parents, and not by Randy, and that he was merely renting it from his parents. Inferentially that rent consisted of the mortgage payments, which Randy made. Further, in 1979, during the instant marriage, Randy's parents conveyed the Walnut Drive property to Randy and Rita jointly. The record fails to show any payment to Randy's parents for that conveyance.

Section 452.330.2 reads, in pertinent part: "For purposes of §§ 452.300 to 452.415 only, 'marital property' means all property acquired by either spouse subsequent to the marriage except: (1) property acquired by gift, bequest, devise or descent."

Section 452.330.3 reads:

"All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property regardless of whether title is held individually or by the spouses in some form of coownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection 2."

In Forsythe v. Forsythe, 558 S.W.2d 675 (Mo.App.1977), a dissolution proceeding, the parents of the wife conveyed, as a gift, land to the parties as husband and wife. The land was sold and the proceeds were invested in securities registered to both parties. The trial court set aside the securities to the wife as her separate property. On the husband's appeal, the court of appeals held that the trial court should have treated the conveyance as a gift to both the husband and wife, and that the proceeds of the sale of the land should have been treated as marital property.

At p. 678 the court said:

"Ordinarily, in the absence of ambiguity, the language of the deed controls as to the intent of the grantor.... Section 452.330.3 departs from this general rule and authorizes a court to look behind the deed of a property acquired during the marriage [and so presumptively marital property] to determine if it was acquired by a method listed in § 452.330.2 [e.g. as by a gift to either spouse] and so exempt from division. Therefore, this statute authorized the wife to adduce evidence to overcome the marital property presumption. In this case, however, her proof had to surmount yet another presumption: that a conveyance to a husband and wife results in a joint ownership by the entirety.... That is to say, for the wife to fall within the gift exception of the statute and thus overcome the marital property presumption, she had first to overcome the presumption of joint ownership created by the language of the deed--and that by clear and convincing evidence that the conveyance was intended for her title alone." (Case authorities omitted.)

The record contains no "clear and convincing evidence" that the conveyance by Randy's parents was intended for Randy's benefit alone. The trial court properly could have found that Randy's making of the mortgage payments, prior to his marriage to Rita, was simply rent paid for his own benefit. This court later holds, in making an overall review of the distribution of the marital property, that the trial court did not abuse its discretion in distributing the Granby property to Rita, free of any lien in favor of Randy. Randy's first point has no merit.

Randy's second point is that the trial court erred in placing the value of $5,000 on Randy's claims for personal injury and property damage because "said claim was unliquidated and contingent and as such had a value that was highly speculative." The claims arose during the marriage. Randy makes no objection to the trial court's classification of the claims as marital property. The classification was proper. McClement v. McClement, 681 S.W.2d 500, 502 (Mo.App.1984).

The statement of facts portion of Randy's brief makes no mention of the testimony concerning the personal injury and property damage claims. This point has not been preserved for appellate review. Rule 84.04(c). A gratuitous examination of the record shows that Randy gave the following testimony: "I had a wreck in the Volkswagen and was hurt. Mr. Johnson is representing me on a personal injury claim and a claim for property damage to the Volkswagen. My medical bills were $500 to $800 and I had a loss of income of approximately $100. I had to hire someone to do farm work--about $180. They issued the other person a ticket and there is no question that it was his fault. ...