Kinsey-Geujen v. Geujen, KINSEY-GEUJE

• Decision Date: 26 January 1999
• Docket Number: Nos. WD,A,KINSEY-GEUJE,s. WD
• Citation: 984 S.W.2d 577
• Parties: Sallyppellant/Respondent, v. Richard John GEUJEN, Respondent/Appellant. 54390, WD 54347.
• Court: Missouri Court of Appeals

Page 577

984 S.W.2d 577

Sally KINSEY-GEUJEN, Appellant/Respondent, v. Richard John GEUJEN, Respondent/Appellant.

Nos. WD 54390, WD 54347.

Missouri Court of Appeals Western District.

Jan. 26, 1999.

Dennis Bosch, Independence, for appellant.

Richard Rose, Kansas City, for respondent.

SPINDEN, Judge.

Sally Kinsey-Geujen and Richard John Geujen complain about the circuit court's division of property in this dissolution of marriage action and about its designation of their property as marital or nonmarital. Sherrill L. Rosen, the circuit court's commissioner, entered a decision, which she denominated a "judgment," on April 1, 1997. She declared the couple's marriage dissolved and divided their property. Kinsey-Geujen and Geujen both appealed.

Because no member of the judiciary recognized by Article V of Missouri's constitution had entered a judgment, we remanded the case to the circuit court to permit it to enter a judgment. See Slay v. Slay, 965 S.W.2d 845 (Mo. banc 1998). The circuit court adopted Rosen's decision, including her findings of facts and recommendations, and issued its judgment on October 19, 1998. With the case back before us, we consider the merits of the parties' appeals.

We first consider Kinsey-Geujen's appeal. She contends that the circuit court erred in determining that money she had invested in an account owned by her and her children was transmuted into marital property when a bank erroneously deposited the funds into a joint marital checking account contrary to her request. She also contends that the circuit court erred in determining these funds were transmuted into marital property on the ground that allegedly marital funds were used to reinvest the proceeds into a new certificate of deposit and money market account to which she and her son held title.

Generally, property is nonmarital if a spouse owned it before the marriage and retained separate title to it after marriage. Glenn v. Glenn, 930 S.W.2d 519, 523 (Mo.App.1996). The owner's adding a spouse's name to the property's title creates a presumption that the property has been transmuted into marital property, and only clear and convincing evidence that the owner did not intend to convert the property will rebut the presumption. Clark v. Clark, 919 S.W.2d 253, 255 (Mo.App.1996). A party's intent is the determining factor. A commingling of nonmarital and marital property will not transmute nonmarital property into marital property unless the owner intended to convert the nonmarital property to marital property. See § 452.330.4, RSMo 1994; In re Marriage of Smith, 785 S.W.2d 764, 766 (Mo.App.1990).

Kinsey-Geujen established with clear and convincing evidence she did not intend to transmute her nonmarital property to marital property. Nothing rebutted her evidence that inadvertence--a mistake by bank personnel--caused her nonmarital property to be commingled into the checking account she held jointly with Geujen. Kinsey-Geujen testified that, when she requested the bank to redeem her investment account, she instructed bank personnel to send her a check. Instead, they transferred the money into the joint checking account. When Kinsey-Geujen discovered this error about two weeks after the transfer, she said, she immediately transferred the money to an account held by her and her son. Geujen was not aware that the bank had deposited the money into the joint account. He did not present any evidence that Kinsey-Geujen intended that the transfer be a gift.

Geujen cites several cases in support of his contention that the bank's depositing the money into his and Kinsey-Geujen's joint account was sufficient to transmute the property to marital property: In re Marriage of Smith, 892 S.W.2d 767 (Mo.App.1995); In re Marriage of Patroske, 888 S.W.2d 374 (Mo.App.1994); Spidle v. Spidle, 853 S.W.2d 311 (Mo.App.1993); and Stephens v. Stephens, 842 S.W.2d 909 (Mo.App.1992). We distinguish these cases on their facts. In each, the spouse owning the nonmarital property intentionally transferred funds into a joint banking account or intentionally changed the title of a bank account or real estate to reflect joint ownership.

Because clear and convincing evidence supported Kinsey-Geujen's position that the funds which ended up in an account owned jointly by her and Geujen were not transmuted to marital property, we agree with her that the certificate of deposit which she purchased with the money and the deposit of the remaining $3853 into a money market account were nonmarital property. She had used nonmarital money to obtain the CD and to make the deposit. She did not intend to give them to Geujen. Sections 452.330.2 and 452.330.3, RSMo 1994.

Kinsey-Geujen also contends that the circuit court erred in dividing equally the equity in the marital house, valued at $157,000, in light of her contributing $100,000 in nonmarital funds to its purchase. She argues that the circuit court should have applied the "source of funds rule" and separated nonmarital and marital portions of the property in proportion to her and Geujen's investments.

Although the source of funds rule may be used in determining whether property purchased during the marriage is marital or nonmarital property, Hoffmann v. Hoffmann, 676 S.W.2d 817, 825 (Mo. banc 1984), it is not the only consideration. The primary consideration remains whether the contributing spouse intended to convert nonmarital property into marital property by agreement or by gift. Tracy v. Tracy, 791 S.W.2d 924, 927 (Mo.App.1990). Section 452.330.3, RSMo 1994, provides that all property acquired by a married couple subsequent to the marriage is deemed to be marital property unless clear and convincing evidence is presented which shows the property was acquired in exchange for property acquired prior to the marriage pursuant to § 452.330.2(2).

Kinsey-Geujen did not present evidence which overcame the strong presumption created by § 452.330.3 that her contribution of nonmarital property to purchase the marital house transmuted her nonmarital property into marital property. The house was purchased after the marriage and titled jointly in the names of the couple. Her reliance on the source of her $100,000 contribution--from sale of nonmarital property--was not sufficient. The circuit court's conclusion that all of the marital residence was marital property was supported by substantial and competent evidence.

Kinsey-Geujen further complains that the circuit court erred in awarding a 1995 pickup to Geujen as his nonmarital property because Geujen used a vehicle purchased after his marriage to her to trade for the pickup. The evidence does not support her point.

Kinsey-Geujen presented a 1995 property tax receipt which included payment of taxes paid for a 1993 pickup. She testified that the 1993 pickup belonged to Geujen and was "the vehicle he owned prior to trading it in for this 1995 Dodge Ram [pickup.]" Geujen testified that his company, RJ Industries, Inc., was paying for the 1995 pickup, and its title listed the owner as "Richard Geujen, d/b/a RJ Industries, Inc." Neither party presented any evidence concerning the 1993 pickup's purchase or title.

We discern no basis for concluding that the circuit court's determination that the pickup was Geujen's nonmarital property was against the weight of the evidence. We, therefore, reject Kinsey-Geujen's point.

In his appeal, Geujen contends that the circuit court abused its discretion in awarding 60 percent of the marital property to Kinsey-Geujen. He complains that the circuit court ignored Kinsey-Geujen's greater portion of nonmarital assets and substantial income...