Kettler v. Kettler, 63677

Decision Date11 October 1994
Docket NumberNo. 63677,63677
Citation884 S.W.2d 729
PartiesIn re the Marriage of Richard KETTLER, Respondent/Cross-Appellant, v. Anne Marie KETTLER, Appellant/Cross-Respondent.
CourtMissouri Court of Appeals

Corinne R. Coston, Mary Ann Weems, Clayton, for appellant.

Ellen Watkins, Gregory L. Brandt, Schechter & Watkins, Clayton, for respondent.

AHRENS, Presiding Judge.

Richard Kettler and Anne Marie Kettler were married on July 7, 1978. On January 27, 1989, husband filed his petition for dissolution of marriage. Wife filed her cross-petition on March 13, 1989. A decree of dissolution was entered on February 8, 1993. Both parties appeal the trial court's division of property. We affirm.

Review of this case is governed by the principles of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The trial court's judgment will be sustained unless there is no substantial evidence to support it, or it is against the weight of the evidence, or it erroneously declares or applies the law. Id.

The division of marital property is discretionary with the trial court and we must defer to the court's judgment unless it is an abuse of discretion. Bixler v. Bixler, 810S.W.2d95,100 (Mo.App.1991). Further, we presume the order to be correct and the party challenging the division on appeal has the burden of overcoming the presumption. Id.

Wife argues, in her first point, that the trial court erred in awarding husband one Pioneer Individual Retirement Account (IRA) valued at $20,440.00. She claims there were actually two Pioneer IRAs valued at approximately $10,000.00 each and that one was separate property of wife and one separate property of husband. In his cross-appeal, husband also contends there were two Pioneer IRAs worth an aggregate of $20,440.00, which husband claims are marital property. There is no dispute as to the existence of two IRAs, one in each party's name, of equal value, totalling approximately $20,440.00.

Wife contends that the funds for these IRAs came from separate gifts to wife and husband from wife's mother. She argues that one IRA was titled in each party's name individually and that the IRAs should have been set aside by the trial court as separate property under the "source of funds" rule as adopted in Hoffmann v. Hoffmann, 676 S.W.2d 817, 825 (Mo. banc 1984), and § 452.330.2(1), RSMo (Supp.1989).

Under the "source of funds" rule, whether property is characterized as marital or separate depends on the source of funds used to purchase the property. Hoffmann, 676 S.W.2d at 824. Neither party disputes that the source of funds for the IRAs came from wife's mother. Nor do they dispute that title for each IRA was in each party's name individually. The crux of the dispute lies in whether the gifts from wife's mother were individual gifts to each party or joint gifts to both parties.

All property acquired by either spouse subsequent to the marriage, and prior to a decree of legal separation or dissolution is presumed to be marital property regardless of whether title is held individually or jointly. § 452.330.3, RSMo (Supp.1988). This presumption is overcome only by clear and convincing evidence that the acquired item was non-marital. Barth v. Barth, 790 S.W.2d 246, 251 (Mo.App.1990).

Wife contends she testified at trial that the funds for the IRAs came from separate gifts to husband and wife. However, in wife's Exhibit J, denominated as "Respondent's List of Marital Property and Proposed Marital Property Division," she listed both Pioneer IRAs and asked the court to divide them as marital property. If the trial court did err in treating both Pioneer IRAs as marital property and awarding them to husband it was "invited error." An appellant cannot rely on invited error on appeal. Roth v. Roth, 760 S.W.2d 616, 618 (Mo.App.1988). Wife's first point is denied.

As to the trial court's error in not including both Pioneer IRA numbers in the decree, the record reflects the trial court intended to award both Pioneer IRAs to husband. The decree awarded 50.2% of the marital property to wife and 49.8% to husband. The judge assigned a value of $20,440.00 to the Pioneer IRA awarded to husband. This is exactly twice the value husband placed on each of the two IRAs in his statement of property. We modify the judgment of the trial court to award husband Pioneer IRA number 001-0904214855 in addition to Pioneer IRA number 001-0504214844 pursuant to Rule 84.14.

In her second point, wife claims the trial court erred in its assignment of value of the marital home. Wife contends that the equity in the home was $79,000.00 and not $90,000.00 as the trial court found. Both parties agree that at the time of dissolution the home was subject to a mortgage of approximately $40,000.00. Wife testified that the value of the home was $119,000.00 leaving a net equity of $79,000.00. Husband's statement of property valued the residence at $129,500.00, leaving a net equity of approximately $90,000.00. Where conflicting evidence exists regarding the value of the marital home, deference is given to the trial judge who can assess the credibility of the witnesses. Brandt v. Brandt, 794 S.W.2d 672, 674 (Mo.App.1990). The evidence supports the trial court's valuation of the marital home. We defer to the trial court's determination. Wife's second point is denied.

Wife argues, in her third point, that the trial court failed to set aside the value of her separate funds used to purchase the marital residence. In support of this argument, wife again relies on the "source of funds" rule. The marital residence was titled jointly in the names of husband and wife. Once separate property is placed in the joint names of the spouses, it is deemed a gift to the other spouse and is transmuted into marital property. Layton v. Layton, 673 S.W.2d 462, 464 (Mo.App.1984). This presumption is rebutted by clear and convincing evidence to the contrary. Id. The source of funds rule does not abolish this transmutation theory. Stephens v. Stephens, 842 S.W.2d 909, 913 (Mo.App.1992). Wife offers no evidence that the joint titling of the marital residence was not...

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15 cases
  • Coleberd v. Coleberd, s. 20196
    • United States
    • Missouri Court of Appeals
    • September 30, 1996
    ...is discretionary with the trial court and we must defer to the court's judgment unless it is an abuse of discretion." Kettler v. Kettler, 884 S.W.2d 729, 731 (Mo.App.1994). "Due regard is given to the trial court's determination on the credibility of witnesses." In re Marriage of Gardner, 8......
  • Lance v. Lance
    • United States
    • Missouri Court of Appeals
    • November 17, 1998
    ...The order is presumed to be correct and the party challenging the order has the burden of proving otherwise. Kettler v. Kettler, 884 S.W.2d 729, 731 (Mo.App. E.D.1994). As a general rule, Missouri courts have expressed reluctance to leave marital property vested in the parties as tenants in......
  • Linton v. Linton, 25176.
    • United States
    • Missouri Court of Appeals
    • October 17, 2003
    ...of whether title is held individually or jointly.'" Coleberd v. Coleberd, 933 S.W.2d 863, 868 (Mo.App.1996) (quoting Kettler v. Kettler, 884 S.W.2d 729, 731 (Mo.App. 1994)); see Clark v. Clark, 919 S.W.2d 253, 254 Furthermore, the trial court is afforded broad discretion in its division of ......
  • Neal v. Neal
    • United States
    • Missouri Court of Appeals
    • March 17, 2009
    ...or dissolution is presumed to be marital property regardless of whether title is held individually or jointly." Kettler v. Kettler, 884 S.W.2d 729, 731 (Mo.App. E.D.1994), citing Section 452.330.3. This presumption is overcome only by clear and convincing evidence that the acquired property......
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1 books & journal articles
  • The Renewed Significance of Title in Dividing Marital Assets
    • United States
    • State Bar of Georgia Georgia Bar Journal No. 16-6, April 2011
    • Invalid date
    ...premarital home). [88]"> [88]">[89]"> See Coe, 285 Ga. at 865, 684 S.E.2d at 600. [89]"> [89]">[90]"> See, e.g., Kettler v. Kettler, 884 S.W.2d 729, 732 (Mo. Ct. App. 1994). [90]">[91]"> Id. [91]"> [91]"> Id. [92]"> Id. --------- ...

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