Kauffman V. Kauffman

Decision Date31 January 2003
Docket NumberNo. 60163.,No. WD 60132.,WD 60132.,60163.
Citation101 S.W.3d 35
PartiesEvelyn Sue KAUFFMAN, Appellant-Respondent, v. Thomas A. KAUFFMAN, Respondent-Appellant.
CourtMissouri Court of Appeals

Paul T. Graham, Jefferson City, MO, for appellant-respondent.

Leslie M. Schneider, Columbia, MO, for respondent-appellant.

Before BRECKENRIDGE, P.J., HOWARD and HOLLIGER, JJ.

PATRICIA BRECKENRIDGE, Judge.

Evelyn Sue Kauffman and Thomas A. Kauffman appeal the trial court's judgment dissolving their marriage.In three of Wife's four points on appeal, Wife contests the sufficiency of the evidence to support the court's identification of certain property as Husband's separate property.In her other point, Wife contests the sufficiency of the evidence to support the court's valuation of certain marital property awarded to Husband.In his appeal, Husband alleges error in (1)the court's identification of certain property as half marital; (2)the court's finding that Husband had not accounted for income he had received after separation; (3)the trial court's consideration of the tax cost in valuing assets; and (4)the trial court's award of 854,334.51 in attorney's fees and $6,969.00 in expert fees to Wife.This court finds that the court erred in its identification and valuation of certain property and in its award of certain attorney's fees and experts' fees.The judgment of the trial court is reversed, in part, and affirmed, in part.

I.Factual and Procedural Background

Wife and Husband were married on June 29, 1963.They had three children, who are now grown and emancipated.During the marriage, Husband worked at IBM until he retired in 1992.In recent years, Husband became involved in several business enterprises with his father and his siblings.The enterprises engaged in transactions involving real estate investment, billboard rentals, demolition, excavation, and construction.Wife was primarily a homemaker, but she also worked briefly outside the home doing assembly-line work, clerical work, housekeeping, and babysitting.Wife also performed manual labor on the parties' rental property and 128-acre farm, where they raised cattle.

Wife filed her petition for dissolution of marriage on June 30, 1999.Trial was held, and the court entered its judgment dissolving the parties' marriage and dividing their property on February 22, 2001.Both Wife and Husband appealed.

II.Standard of Review

This court will affirm the judgment in a dissolution of marriage proceeding unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.King v. King,66 S.W.3d 28, 32(Mo.App.2001).All four of Wife's points and one of Husband's points concern either the identification of property as marital or non-marital or the valuation of property."`The trial court has broad discretion in identifying marital property.'"Luckeroth v. Weng,53 S.W.3d 603, 609(Mo.App.2001)(quotingMcGowan v. McGowan,43 S.W.3d 857, 866(Mo.App.2001)).Likewise, the trial court also has broad discretion in valuing marital property.Rhodus v. McKinley,16 S.W.3d 615, 620(Mo.App.2000).The trial court abuses its discretion only if the "ruling is clearly against the logic of the circumstances then before it and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration."Wright v. Wright,1 S.W.3d 52, 57(Mo. App.1999)."`If reasonable persons can differ about the propriety of the trial court's action, it cannot be said that the trial court abused its discretion.'"Id.(quotingCollins v. Collins,875 S.W.2d 643, 647(Mo.App.1994)).

Where the court's identification of property as marital or separate turns on a determination of the credibility of witnesses this court defers to the trial court's determination.Beckham v. Beckham,41 S.W.3d 908, 911-12(Mo.App.2001).Also, where there is conflicting evidence regarding valuation of property, this court defers to the trial court's resolution of the conflict.McGowan,43 S.W.3d at 864."When the trial court's valuation of property is within the range of conflicting evidence of value offered at trial, the court acts within its discretion to resolve conflicts in evidence."Taylor v. Taylor,25 S.W.3d 634, 644(Mo.App.2000).

There is a statutory presumption that all property acquired by either spouse subsequent to marriage but before a legal decree of separation or dissolution is marital property, regardless of how the property is titled.Section 452.330.3, RSMo 2000.1This presumption may be overcome, however, by showing that the property was acquired by one of the methods listed in section 452.330.2.Section 452.330.3.The methods listed in section 452.330.2 are:

(1) Property acquired by gift, bequest, devise, or descent;

(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;

(3) Property acquired by a spouse after a decree of legal separation;

(4) Property excluded by valid written agreement of the parties; and

(5) The increase in value of property acquired prior to the marriage or pursuant to subdivisions (1) to (4) of this subsection, unless marital assets including labor, have contributed to such increases and then only to the extent of such contributions.

The party claiming the property is separate property has the burden of proving it by clear and convincing evidence.King,66 S.W.3d at 36.

III.Wife's Appeal
A.Error in Identifying Husband's Interest in All Family Business Enterprises As His Separate Property

In Wife's first point, she argues that the trial court erred in identifying Husband's interest in various family business enterprises as Husband's separate property.The evidence at trial showed that, throughout the marriage, Husband was involved in several business enterprises with his father, two brothers, and sister.Some of these enterprises were formalized as partnerships or limited liability companies, while others were loosely-formed.Because the nature of Husband's interest in these enterprises varies, the enterprises will be discussed separately.

Husband's father, William J. Kauffman, is the general partner in the William J. Kauffman Limited Partnership.In the 1970s, Mr. Kauffman began giving equal units of interest in his limited partnership to his four children.Eventually, each of William's children, including Husband, acquired six units of interest in the William J. Kauffman Limited Partnership.William testified at trial that he gave these interests in his partnership to his children for the purpose of "get[ting] them out of [his] estate."After giving these units of interest in the limited partnership to his children, William's interest continued to be that of a general partner, while his four children became limited partners.William did not give any interest in his limited partnership to Wife.

Both Husband and William testified that the limited partnership receives income from monthly payments made on rental property located in Jefferson City.Apparently under the terms of the limited partnership agreement, which was not included in the record on appeal, William has and will receive all of the partnership income until his death.William's children, including Husband, have not received any income from the limited partnership and will not until William dies.

Although Husband acquired his interest in the William J. Kauffman Limited Partnership during the marriage, Husband presented sufficient evidence that he acquired his interest as a gift from his father, thereby rebutting the presumption that his interest was marital property.Section 452.330.3 and .2(1).The partnership certificate showed that the interest in the limited partnership was given only to Husband, Husband testified that William gave the interest only to him, and William testified that he gave the interest in the partnership only to Husband and not to Wife.The trial court was free to believe Husband's and William's testimony as to Husband's acquisition of his interest in the limited partnership.Thill v. Thill,26 S.W.3d 199, 203(Mo.App.2000)(stating that "[t]he trial court is free to believe or disbelieve all, part, or none of the testimony given by any of the witnesses").Likewise, the trial court was free to believe Husband's and William's testimony that Husband received no income from his interest in the limited partnership during the marriage.Thus, the trial court did not err in designating Husband's interest in the William J. Kauffman Limited Partnership as his separate property.Section 452.330.2(1).

In addition to interests in his limited partnership, William Kauffman also gave his children interests in real property west of Jefferson City, which the family refers to as "Westland."In 1977, William and his wife, Leona B. Kauffman, gave a tract of this property in equal shares to their four children.Husband and his three siblings took the property as tenants in common.The Kauffman family calls this tract the "Yellow Freight" property.Several years later, in 1991, William gave another tract of Westland property to his four children in equal shares, as tenants in common.The family calls this property the "Apache Trail" property.

William testified that he did not give an interest in either the Yellow Freight or the Apache Trail property to Wife, and the deeds show that William conveyed the property only to Husband and his siblings, and not to Wife.Likewise, Husband testified that William gave an interest in the property only to him, and that he never conveyed any of his interest in them to Wife.The trial court was free to believe the testimony of Husband and William that Husband...

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11 cases
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    • United States
    • Missouri Supreme Court
    • July 3, 2012
    ...382, 383 (Mo.App. W.D.2003); Dean Machinery Co. v. Union Bank, 106 S.W.3d 510, 523 (Mo.App. W.D.2003); Kauffman v. Kauffman, 101 S.W.3d 35, 44 (Mo.App. W.D.2003) (Breckenridge, P.J.); In re Coffel, 117 S.W.3d 116, 117 (Mo.App. E.D.2003); In re B.C.K., 103 S.W.3d 319, 321 (Mo.App. S.D.2003);......
  • S.M.S. v. J.B.S.
    • United States
    • Missouri Court of Appeals
    • July 30, 2019
    ...presumed to be marital property under section 452.330.3 because it was opened during the parties' marriage. See Kauffman v. Kauffman , 101 S.W.3d 35, 45 (Mo. App. W.D. 2003) (similarly finding); see also section 452.330.3; McQueen , 507 S.W.3d at 151. It was Husband’s burden to overcome thi......
  • Engeman v. Engeman
    • United States
    • Missouri Court of Appeals
    • October 28, 2003
    ...29 S.W.3d 400, 403 (Mo.App.2000). Husband and Father cite a significant number of cases in support of their position: Kauffman v. Kauffman, 101 S.W.3d 35 (Mo.App.2003); In re Marriage of Felkner, 847 S.W.2d 144 (Mo.App.1993); Summerville v. Summerville, 869 S.W.2d (Mo.App.1993); Tubbs v. Tu......
  • Moore v. Moore
    • United States
    • Missouri Court of Appeals
    • March 21, 2006
    ...has consistently held that income received during the marriage from a party's separate property is marital property. Kauffman v. Kauffman, 101 S.W.3d 35, 45 (Mo.App.2003); Coleberd v. Coleberd, 933 S.W.2d 863, 868 (Mo.App.1996). The trust income that Wife received is not exempt from this cl......
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2 books & journal articles
  • Section 32 Cases Holding Proof Required
    • United States
    • The Missouri Bar Practice Books Damages Deskbook Chapter 20 Attorney Fees and Interest
    • Invalid date
    ...award of attorney fees, and reliance on such a statement in awarding fees has been deemed an abuse of discretion. Kauffman v. Kauffman, 101 S.W.3d 35, 52 (Mo. App. W.D. 2003) (citing In re Morrison, 987 S.W.2d 475, 479 (Mo. App. S.D. 1999)).Failure to offer evidence of the value of the atto......
  • Section 43 Appellate Standard of Review of Attorney Fee Awards
    • United States
    • The Missouri Bar Practice Books Damages Deskbook Chapter 20 Attorney Fees and Interest
    • Invalid date
    ...consideration. See:· Mihlfeld & Assocs., Inc. v. Bishop & Bishop, L.L.C., 295 S.W.3d 163, 175 (Mo. App. S.D. 2009)· Kauffman v. Kauffman, 101 S.W.3d 35, 52 (Mo. App. W.D. 2003)· First State Bank of St. Charles, Mo. v. Frankel, 86 S.W.3d 161, 176 (Mo. App. E.D. 2002)The burden is on the part......

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