Konopasek v. Konopasek, SD37388

CourtCourt of Appeal of Missouri (US)
Writing for the CourtDON E. BURRELL, J.
PartiesJENETTE KONOPASEK, Plaintiff-Appellant, v. DOUGLAS and LAURA KONOPASEK, Defendants-Respondents.
Docket NumberSD37388
Decision Date13 September 2022

JENETTE KONOPASEK, Plaintiff-Appellant,
v.

DOUGLAS and LAURA KONOPASEK, Defendants-Respondents.

No. SD37388

Court of Appeals of Missouri, Southern District, In Division

September 13, 2022


APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable R. Tiffany Yarnell

AFFIRMED

DON E. BURRELL, J.

Appellant Jenette Konopasek ("Judgment Creditor") obtained a judgment for unpaid child support against Respondent Douglas Konopasek ("Judgment Debtor") and is attempting to collect it. In two points relied on, Judgment Creditor appeals the circuit court's judgment dismissing, without prejudice,[1] her Amended Petition ("the amended petition") that alleged Judgment Debtor fraudulently transferred money he received in settlement of personal injury claims to a joint checking account he held with his current

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wife, Laura Konopasek ("Wife" [2]), in that those transfers violated sections 428.005 to 428.059 of the Missouri Uniform Fraudulent Transfer Act ("MUFTA").[3] Because the amended petition fails to allege that Judgment Debtor made a "transfer," as that term is defined within the MUFTA statutory scheme, we affirm.

Standard of Review

We review the circuit court's grant of a motion to dismiss de novo. Copeland v. City of Union, 534 S.W.3d 298, 301 (Mo. App. E.D. 2017). Unless matters outside the pleadings are presented to and not excluded by the circuit court,[4]

[a] court reviews the petition "in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case." Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993). In so doing a court takes a plaintiff's averments as true and liberally grants plaintiff all reasonable inferences. It will not weigh the credibility or persuasiveness of facts alleged

City of Lake Saint Louis v. City of O'Fallon, 324 S.W.3d 756, 759 (Mo. banc 2010) (additional citations omitted).

Analysis

Because her two points are essentially identical in that both claim Judgment Creditor's Amended Petition stated a claim for relief under MUFTA, and because both

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points fail for the same reason, we address them together. Judgment Creditor's first point claims the circuit court erred in dismissing the amended petition because she stated a claim under section 428.024 of MUFTA - transfers fraudulent as to present and future creditors. Her second point claims the circuit court erred in dismissing the amended petition because she stated a claim under section 428.029 of MUFTA - transfers fraudulent as to present creditors.

The Governing Law

Section 428.024.1,[5] transfers fraudulent as to present and future creditors, provides:

1. A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:
(1) With actual intent to hinder, delay, or defraud any creditor of the debtor; or
(2) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor:
(a) Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or
(b) Intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due.

Section 428.029, transfers fraudulent as to present creditors, states:

1. A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the
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transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.
2. A transfer made by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if the transfer was made to an insider for an antecedent debt, the debtor was insolvent at that time, and the insider had reasonable cause to believe that the debtor was insolvent.

The Amended Petition

The amended petition alleges, in pertinent part, that:

3. On January 18, 2013, [Judgment Creditor] obtained a judgment against [Judgment Debtor] in the amount of $7,288.00, with interest accruing at the statutory rate, in [Judgment Creditor] v. [Judgment Debtor], case number 10CY-CV05789 (the
...

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