King v. King

• Decision Date: 30 October 2001
• Docket Number: No. WD 58514.,WD 58514.
• Citation: 66 S.W.3d 28
• Parties: Terri L. Nelson KING, Appellant, v. Cordell James KING, Respondent, Vernon KING, Defendant.
• Court: Missouri Court of Appeals

66 S.W.3d 28

Terri L. Nelson KING, Appellant, v. Cordell James KING, Respondent Vernon KING, Defendant.

No. WD 58514.

Missouri Court of Appeals, Western District.

October 30, 2001.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 26, 2001.

Application for Transfer Denied February 26, 2002.

Patricia L. Hughes, Liberty, for appellant.

Thomas C. McGiffin, Liberty, for respondent.

Thomas E. Hankins, Gladstone, for defendant.

Before PAUL M. SPINDEN, Chief Judge, Presiding, HAROLD L. LOWENSTEIN, Judge, ROBERT G. ULRICH, Judge, PATRICIA A. BRECKENRIDGE, Judge, JAMES M. SMART, JR., Judge, JOSEPH M. ELLIS, Judge, EDWIN H. SMITH, Judge, VICTOR C. HOWARD, Judge, THOMAS H. NEWTON, Judge, RONALD R. HOLLIGER, Judge, and LISA WHITE HARDWICK, Judge.

ROBERT G. ULRICH, J.

Terri Nelson King (Wife) appeals the trial court's judgment of dissolution dissolving her marriage to Cordell King (Husband) and distributing property. She claims that the trial court erred in (1) finding that the antenuptial agreement was valid, (2) setting aside certain property acquired during the marriage as Husband's separate property, (3) failing to award her attorney's fees, and (4) failing to restore her maiden name. The judgment of the trial court is affirmed in part and reversed in part, and the case is remanded with directions.

Husband and Wife were married on May 31, 1994. This was the second marriage for Husband, who was 41 years old and the first marriage for Wife, who was 26 years old. No children were born of the marriage. Prior to the marriage, Husband and Wife entered into an antenuptial agreement in 1994, which was drafted by Husband's attorney and reviewed by Wife's attorney. In the antenuptial agreement, Wife disclosed assets consisting of bank accounts, a retirement account, an automobile, and personal property valued at $18,250. Husband disclosed $245,000 in assets consisting of two homes, bank accounts, an IRA, and automobiles. After the couple was married, Husband went to work for his father, Vernon King, at his father's company, King Farms. King Farms is a business that buys and sells used heavy equipment such as bulldozers, road graders, and tractors.

The couple separated on March 10, 1998, and Wife filed her petition for dissolution of marriage on November 18, 1998. The principal dispute at trial was whether Husband owned King Farms at the time the antenuptial agreement was signed. The business was not disclosed as Husband's asset in the agreement. Wife claimed that Husband willfully failed to disclose in the antenuptial agreement that he was the sole proprietor of King Farms and had been since 1991, three years prior to the marriage. Wife testified that before she signed the antenuptial agreement, she suspected Husband had an ownership interest in King Farms. She claimed that when she asked him about it, he told her that it was none of her business. Husband testified that he did not own the business when he signed the antenuptial agreement and that he did not own it at the time of trial. Because the ownership of the business was at issue, the court permitted the intervention of Husband's father, Vernon King, who testified that he was the sole proprietor of the business.

In its judgment of dissolution, the trial court found that Husband's father was the sole owner of King Farms and that Husband did not have an ownership interest in the business that required disclosure in the antenuptial agreement. Accordingly, the trial court found that the antenuptial agreement was valid. The court then set aside to each that person's separate property. Wife received certain furniture as her separate property. Husband received two houses, property known as Gould Farm, an American Century account, a Kemper Funds account, bank accounts, and certain furniture as his separate property. The court then divided the marital property and debt. Wife was awarded a $500 bank account and $23,200 in personal property and was ordered to pay $26,657 in debt plus her attorney's fees totaling $11,158. Husband was awarded $1000 in marital property and was ordered to pay $11,600 in debt plus his attorney's fees totaling $5950. Husband was also ordered to pay Wife $4300. This appeal by Wife followed.

STANDARD OF REVIEW

The judgment in a dissolution proceeding will be affirmed on appeal 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Miles v. Werle, 977 S.W.2d 297, 301 (Mo.App. W.D.1998). A judgment will be reversed on the ground that it is against the weight of the evidence only with caution and a firm belief that the judgment is wrong. Kennedy v. Kennedy, 969 S.W.2d 310, 313 (Mo.App. W.D.1998). "Weight of the evidence" refers to the probative value of the evidence and not the quantity of the evidence. In re Marriage of Lewis, 808 S.W.2d 919, 922 (Mo.App. S.D.1991). The trial court has broad discretion in distributing property and an appellate court will interfere only if the division is so unduly weighted in favor of one party as to constitute an abuse of discretion. Miles, 977 S.W.2d at 301. "An abuse of discretion will be found only if the award is so arbitrary or unreasonable that it indicates indifference and lack of proper judicial consideration." Silcox v. Silcox, 6 S.W.3d 899, 905 (Mo. banc 1999). The party challenging the judgment of dissolution has the burden of demonstrating error. Miles, 977 S.W.2d at 301.

An appellate court must review the evidence in a light most favorable to the trial court's decision. Darr v. Darr, 950 S.W.2d 867, 870 (Mo.App. E.D.1997). Factual determinations are the prerogative of the trial court, and conflicts in the evidence are for the trial court to resolve. In re Estate of Reinsmidt, 897 S.W.2d 73, 76 (Mo.App. E.D.1995). Thus, the trial court has the discretion to determine the credibility of the witnesses, accepting or rejecting all, part, or none of the testimony it hears. Jones v. Jones, 10 S.W.3d 528, 532 (Mo.App. W.D.1999).

I. ANTENUPTIAL AGREEMENT

In the first two points addressed in this appeal, Wife claims that the trial court erred in enforcing the antenuptial agreement. She first argues that the agreement was entered into without full disclosure of Husband's ownership interest of the business King Farms or, alternatively, his right to keep any profits generated by the business. Wife also argues the antenuptial agreement was unenforceable because it was unconscionable.

A. Ownership Interest in King Farms

Wife first argues that Husband failed to fully disclose his interest in the King Farms business. Specifically, Wife contends that Husband had an ownership interest in King Farms that he should have disclosed in the antenuptial agreement and that the trial court's finding that Husband's father was the sole owner of King Farms was against the weight of the evidence.

An antenuptial agreement contemplating dissolution of marriage is not against public policy and can be valid. Darr, 950 S.W.2d at 870. To be valid and enforceable, an antenuptial agreement (1) must be entered into freely, fairly, knowingly, understandingly, and in good faith with full disclosure, and (2) must not be unconscionable. Miles, 977 S.W.2d at 301.

To support her claim that Husband owned King Farms at the time of the execution of the antenuptial agreement and was required to disclose his interest in the antenuptial agreement, Wife provided several forms of evidence. She introduced Husband's tax returns showing that every year since 1991, Husband reported King Farms' net profit as his income in his capacity as the sole proprietor of the business. Wife also introduced the tax returns of Husband's father that showed he did not report the business's profit as his income. Both Husband's and Husband's father's tax returns since 1991 showed that rental of the real property upon which the business is located was paid by the business to Husband's father. The amount paid each year was $24,000 until 1998, after Wife filed her petition for dissolution of marriage, when the annual rent increased to $77,395. Additionally, Wife presented documentary evidence that Husband signed and filed a Missouri tax registration application as owner of King Farms, that payments to Husband from the business account were shown as owner's draws, and that Husband filed an application with the State of Missouri as owner of King Farms for dealer license plates.

Finally, Wife presented the testimony of the accountant of Husband and Husband's father, whose testimony was conflicting. He testified that the business was transferred from Husband's father to Husband in 1991 when Husband gave his father a note for $45,000 and contributed $11,451 to the business. The accountant said that Husband had "paid down" the note to $25,000. The accountant, however, also testified that he never saw the $45,000 note from Husband to Husband's father and that he did not know who owned King Farms. Additionally, the King Farms "trial balance sheet," which was referred to by the accountant and offered as an exhibit by Wife and which depicted business events from January 1, 1992, through December 31, 1992, showed the note as a note owed by the company to Husband's father. It also showed that the $11,451 contributed by Husband to be a loan from Husband to the business.

Husband offered evidence that he did not own and had not owned King Farms. He testified that he did not own the business when he signed the antenuptial agreement and that he did not own it at the time of trial. He explained that his father was the owner of the business and that he was employed as manager of his father's business receiving $400 a week, a vehicle to use, and his health insurance as compensation. Husband further testified that he had no decision making authority in the business and that he did not even go to Wal Mart to purchase supplies...