Keet v. Bell (In re Bell)

• Decision Date: 05 February 2016
• Docket Number: No. SD 33136,SD 33136
• Citation: 481 S.W.3d 855
• Parties: In Re the Marriage of: Jeneffer Keet Bell and Mark Robert Bell. Jeneffer Keet, f/k/a Jeneffer Keet Bell, Petitioner–Respondent, v. Mark Robert Bell and Jimmie Bell, Respondents–Appellants.
• Court: Missouri Court of Appeals

481 S.W.3d 855

In Re the Marriage of: Jeneffer Keet Bell and Mark Robert Bell.

Jeneffer Keet, f/k/a Jeneffer Keet Bell, Petitioner–Respondent,

v.Mark Robert Bell and Jimmie Bell, Respondents–Appellants.

No. SD 33136

Missouri Court of Appeals, Southern District, Division One .

Filed: February 5, 2016

Attorney for Appellant: Harold F. Glass, II of Springfield, MO.

Attorney for Respondent: John D. Compton of Springfield, MO.

JEFFREY W. BATES

, J.

This is the second appeal arising from the dissolution proceeding involving the marriage of Mark Bell (Mark) and Jeneffer Bell (Jeneffer). See Bell v. Bell, 360 S.W.3d 270 (Mo.App. S.D.2011)

(Bell I )¹ Mark and his father, Jimmie Bell (Jimmie), appeal from the judgment entered by the trial court after further proceedings occurred on remand. Collectively, Mark and Jimmie assert seven points of alleged trial court error. We find merit in Jimmie's point that the trial court erred by holding Jimmie jointly responsible for attorney's fees incurred by Jeneffer. Therefore, we reverse that portion of the judgment, affirm in all other respects and remand the case for the entry of an amended judgment consistent with this opinion.

Standard of Review

In this court-tried case, our review is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)

, and Rule 84.13(d). Schubert v. Trailmobile Trailer, L.L.C., 111 S.W.3d 897, 899 (Mo.App. S.D.2003).² The judgment will be affirmed 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. Pelligreen v. Wood , 111 S.W.3d 446, 450 (Mo.App. E.D.2003)

.

In reviewing issues of fact, "[w]e view the evidence and reasonable inferences therefrom in the light most favorable to the decree and disregard all evidence to the contrary." Selby v. Selby, 149 S.W.3d 472, 482 (Mo.App. W.D.2004)

. The credibility of witnesses and the weight to be given to their testimony is a matter for the trial court, which is free to believe none, part or all of the testimony of any witness. Herbert v. Harl, 757 S.W.2d 585, 587 (Mo. banc 1988).

Factual and Procedural Background

Bell I

Because of the intertwined nature of the issues and to promote a better understanding of the rationale for this decision, our opinion in this second appeal should be read in conjunction with our earlier opinion in Bell I

. To avoid undue repetition, we will presume the reader is generally familiar with Bell I and limit our recital of the facts from the prior appeal to those essential to our discussion of the issues addressed herein.

In Jeneffer's First Amended Petition, Mark was named as a party both individually and in his capacity as a trustee of the first and second Bell trusts. Jimmie was named as a party only in his capacity as a trustee of those same trusts. Count II of the petition alleged that Mark and Jimmie were engaged in a real estate partnership and conducted that business in their capacities as trustees. The prayer for relief asked the trial court to determine what part of the real estate so held was marital property and to divide the same as required by law.

The original judgment was entered in November 2009. Insofar as relevant here, the trial court decided that: (1) Mark was not the actual owner of various real estate parcels claimed by Jeneffer to be marital property; and (2) Mark's interests in various investment accounts, including a Schwab IRA, were his nonmarital property. Jeneffer appealed, and those issues were decided by this Court in Bell I

.

With respect to the 89 parcels of real estate, we held that: (1) those properties were acquired after Mark and Jeneffer married; and (2) Mark failed to rebut the presumption that the real estate was marital property. Bell I, 360 S.W.3d at 281

. As we explained in the opinion:

The titling of the properties in Mark's name was meant to have legal consequences. Jimmie and Mark titled certain property in Mark's name in order to obtain at least $679,673.67 in financing from a bank. The financial statements that were presented to the bank were intended to have legal consequences. The income tax returns which claimed that Mark was the owner of the properties were done with the purpose of having legal consequences. We cannot ignore all of those representations that Mark acquired the properties subsequent to the marriage and now state that the properties were not acquired during the marriage due to a "misnomer." The representations by Jimmie and Mark Bell make no sense unless it was to hide the true character of the properties to the bank, to the IRS, and to Jeneffer. It puts this Court in a position of finding a fact contrary to the representation of facts to the IRS and the financial institutions. This we cannot do. We must hold that the representations were true, that Mark owned the properties. Thus, the real estate was property acquired after the marriage.

The testimony of every single witness indicates that Mark and Jimmie were engaged in some manner of a common business, the purchase and sale of real estate.

Id . at 280–81

. Therefore, we concluded that "[t]he trial court erred in designating the real estate owned by Mark as Mark's separate property." Id . at 281.

With respect to the investment accounts, we also held that the trial court erred by designating all $195,980.90 of the Schwab IRA as Mark's separate property. Id. at 282

. Based upon our review of the documentary evidence:

those documents did not provide enough information for a fact-finder to determine what proportions of the increase in value of the account were marital or nonmarital. Money contributions had to be made to the account during the marriage. If so, those contributions were marital property unless rebutted by clear and convincing evidence. There is no indication in the record of how such accounts increased so significantly in value without any additional contribution.

Id . at 282–83

. Mark's name was also on an undisclosed passbook savings account with a value of $180,118.13 that was created after Mark and Jeneffer married. That account was presumed to be marital property and the record contained no evidence about why Mark's name was on it. Therefore, "we also remand[ed] for the consideration of the passbook accounts for further evidence at the trial court's discretion." Id. at 283. The original judgment was reversed, and the cause was remanded. Id . at 285. Our remand instructions stated that "the trial court may allow such additional discovery or enter such orders as necessary to ensure that it receives complete and accurate facts." Id . We also authorized the trial court to consider the appointment of a special master pursuant to Rule 68.01 to ensure compliance with discovery. Bell I, 360 S.W.3d at 285 n.19.

Proceedings on Remand

On remand, the trial court determined that "exceptional circumstances exist in this case concerning discovery" and ordered that a special master be appointed to oversee all discovery issues. See Rule 68.01. Jeneffer also filed a motion, pursuant to Rule 52.04, to add Jimmie as an individual needed for just adjudication. After hearing oral argument of counsel on the matter, the trial court granted the motion.³

Following additional discovery, the trial court conducted two hearings at which it received additional evidence. On October 8, 2013, the trial court issued its First Amended Judgment and Decree of Dissolution of Marriage. Insofar as relevant here, the trial court made the following rulings: (1) Mark had an equity interest of $802,160 in the 85 real estate parcels that were marital property⁴ ; (2) the court imposed a constructive trust for the benefit of Mark with Jimmie being the constructive trustee for each of the 85 real estate parcels; (3) Jeneffer was entitled to a cash equalization award of $401,080 to be paid either by Mark or by Jimmie, as constructive trustee of Mark's interest in the 85 parcels of real estate; (4) $209,975.49 of Mark's Schwab IRA was marital property to be divided equally between Jeneffer and Mark; (5) Jeneffer was entitled to an award of $65,826.85 for attorney fees to be paid by Mark or by Jimmie; and (6) $6,740 in special master fees then due were to be paid by "Respondents." Mark and Jimmie appealed from the 2013 judgment.

Jeneffer's Motion to Dismiss This Appeal as Not Timely Filed

The trial court's amended judgment was entered on October 8, 2013. Mark and Jimmie filed their notice of appeal on January 22, 2014. Jeneffer has filed a motion to dismiss the appeal on the ground that the notice of appeal was not timely filed. We disagree and deny the motion.

Following entry of the trial court's judgment, Mark and Jimmie filed a timely "Motion for Rehearing or to Amend or Modify Judgment" on October 15, 2013. The motion sought a new trial or, in the alternative, a modification or amendment of the judgment. The record reflects no ruling on the motion.

To the extent the motion sought a rehearing before the trial judge, it was governed by Rule 130.13 and overruled by operation of law after 45 days elapsed without a ruling. See Rule 130.13(b); Dunkle v. Dunkle, 158 S.W.3d 823, 827 (Mo.App. E.D.2005)

(finding that "special rules," which exist for juvenile and family law matters tried before a family court commissioner, supersede all inconsistent statutes and rules); Lenz v. Lenz, 412 S.W.3d 487, 490 (Mo.App. S.D.2013) (citing Dunkle with approval in discussing Rule 130.13).

A single motion may qualify as a motion for rehearing, a motion to amend the judgment or both. Dunkle, 158 S.W.3d at 831–32

. Rule 130.13 does not supersede normal civil procedure rules with respect to a motion to amend the judgment. Lenz, 412 S.W.3d at 490 ; Dunkle, 158 S.W.3d at 831. Here, the alternative relief sought by the motion was a modification or amendment of the judgment. This aspect of the motion was overruled by operation of law 90 days after the motion was filed. Rule 81.05(a)(2)(A). Therefore, the trial court's judgment became final for purposes of appeal on ...