Marriage of Ballay, In re

• Decision Date: 12 June 1996
• Docket Number: No. 20481,20481
• Parties: In re The MARRIAGE OF Lawrence Howard BALLAY and Helen June Ballay. Lawrence Howard BALLAY, Petitioner-Respondent, v. Helen June BALLAY, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 572

924 S.W.2d 572

In re The MARRIAGE OF Lawrence Howard BALLAY and Helen June Ballay.

Lawrence Howard BALLAY, Petitioner-Respondent, v. Helen June BALLAY, Respondent-Appellant.

No. 20481.

Missouri Court of Appeals,

Southern District,

Division One.

June 12, 1996.

John A. Woodard, P.C., Monett, for respondent-appellant.

James J. Randall & Associates, P.C., Monett, for petitioner-respondent.

PER CURIAM.

In this dissolution of marriage case, Appellant (Wife) contends that the trial court erred in classifying certain items of property as Respondent's (Husband's) separate property, in awarding a disproportionate percentage of the marital property to Husband, and in denying her a maintenance award.

The parties were married for 24 years when Husband filed the instant petition for dissolution in July, 1991. Prior to the marriage, Husband owned an undivided one-third interest (with his brother and sister) in a 117-acre farm (the 117 acres). He and his brother (George) had been given a dairy herd and machinery by their parents, and have jointly conducted a dairy operation referred to in the record as "Ballay Brothers" on the 117 acres. The cattle remaining in the herd were descendants of the original herd with the exception of 20 head which were purchased from George's son. Some of the machinery had been replaced through purchases made by George for use in the The income from milk production was divided equally by the purchaser of the milk and paid individually to George and Husband. While there were suggestions that "Ballay Brothers" might be a partnership, there was no evidence of a partnership agreement. In fact, the evidence indicated that no partnership income tax returns were filed, but rather Husband reported his share of the income and expenses in connection with the dairy operation on his personal returns without indicating that they resulted from a partnership operation.

partnership, and other machinery purchases were made with contributions from Husband and George.

Our review of a judgment entered in a dissolution case is governed by the principles of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Hogan v. Hogan, 796 S.W.2d 400, 403 (Mo.App.E.D.1990). We must affirm the judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Id. On appeal, we view the evidence in a manner favorable to the decree and disregard contradictory evidence. Id. It is the duty of the trial court to decide the weight and value to be given the testimony of any witness. Id. Accordingly, we defer to the trial court even if the evidence could support a different conclusion. Id.

POINT ONE

In her first point, Wife contends that the trial court erred in determining that Husband's interest in "cattle, accounts, equipment and improvements to the real property used in the Ballay Brothers dairy farming partnership" was his separate property. Instead, she argues that those items should have been classified as marital property.

The trial court concluded, in its findings, that the cattle being milked were descendants of cattle acquired prior to the marriage; and the 117-acre tract, the cattle, and the machinery purchased all constituted "capital equipment of the family dairy operation" and, as such, were not marital property. In its decree, the trial court held that Husband's separate property included not only his interest in the 117 acres, but also "[a]ll interest in cattle, accounts and equipment, being also described as Husband's interest in the Ballay Brothers partnership assets."

In reviewing the propriety of a classification of property as marital or nonmarital (separate) in a dissolution case, we look to § 452.330.3 ¹ which provides:

3. All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation or dissolution of marriage is presumed to be marital property regardless of whether title is held individually or by the spouses in some form of coownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection 2 of this section.

Section 452.330.2 provides that property acquired subsequent to the marriage does not constitute marital property if it was acquired in any of the following methods:

(1) Property acquired by gift, bequest, devise, or descent;

(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;

(3) Property acquired by a spouse after a decree of legal separation;

(4) Property excluded by valid written agreement of the parties; and

(5) The increase in value of property acquired prior to the marriage or pursuant to subdivisions (1) to (4) of this subsection, unless marital assets including labor, have contributed to such increases and then only to the extent of such contributions.

To overcome the statutory presumption that property acquired during the marriage is marital, a party claiming that it is nonmarital must prove it to be so with clear and convincing evidence. Sprock v. Sprock, 882 S.W.2d 183, 185 (Mo.App.W.D.1994).

We will separately address each type of asset which Wife contends should have been declared marital property.

CATTLE

In September, 1994, when the final evidence was taken in the case, an exhibit indicated that the dairy herd in which Husband and George had an interest consisted of 80 head (34 cows, 28 yearlings, and 18 calves), including 20 head which had been purchased from one of George's sons. There was a conflict in the evidence concerning whether Husband provided any of the consideration for that purchase and therefore had any ownership interest in them. With the exception of the 20 head, all of the remaining herd were descendants of the cattle given to Husband and George by their parents. Husband's evidence was that he had a 25% interest in the 80 head, valued at $10,257.

Wife does not argue that the marital property included any interest in the 20 head which had been purchased or their offspring. Instead, she argues that the remaining descendants of the original herd were marital property because they were born during the marriage. She relies on Williams v. Williams, 716 S.W.2d 13, 15-16 (Mo.App.W.D.1986), in which the court held that calves born during the marriage were marital property even though they were born to cows which were nonmarital property. In doing so, the court likened them to dividends from premarital stock. Id. See also Elder v. Elder, 824 S.W.2d 520, 521 (Mo.App.S.D.1992), and In re Marriage of Williams, 639 S.W.2d 236, 237 (Mo.App.S.D.1982).

Husband relies, however, on Milde v. Milde, 723 S.W.2d 471 (Mo.App.E.D.1986). In Milde, the court distinguished the Williams cases by saying:

Those cases [In re Marriage of Williams, 639 S.W.2d 236, and Williams v. Williams, 716 S.W.2d 13] involved beef cattle where the end product of the farming operation is the new livestock produced. In that sense such livestock is analogous to a dividend on separately owned stock. In a dairy operation new cattle are replacement for the milk-producing component of the operation. The milk they produce is the end product of the business. The newly born cattle are more nearly analogous to replacement of capital equipment than to a dividend.

Id. at 473. This is the approach apparently taken by the trial court in the instant case concerning cattle in the existing dairy herd which descended from the original herd.

The issue in Milde, however, was whether the cattle in question belonged to a corporation, the stock in which was Husband's separate property, or whether the dairy cattle were owned by the parties. See Elder v. Elder, 824 S.W.2d at 521 n. 2. Even if the quoted language from Milde was not dictum, we disagree with the premise for the distinction between dairy and beef cattle referred to in that opinion. First, it does not distinguish between bull and heifer calves, or heifer calves sold rather than retained for replacement stock. Rather, it assumes that all calves will become part of the milk producing component of the herd. Secondly, while it is true that heifer calves born to cows in a dairy herd may be retained for future milk production, and thereby perhaps constitute the equivalent of the replacement of capital equipment, the same can be said of beef cattle. A goal of a beef producer is to sell offspring. It may also be a goal, however, to increase the number of cows in the herd in order to produce more calves, a result which can be accomplished by retaining heifer calves. Likewise, heifer calves may be retained merely as replacement stock for cows which are culled because of old age or other conditions. In these respects, we fail to see a distinction between calves born to dairy, as opposed to beef, cattle as it relates to their classification as marital property in a dissolution case.

With the exception of the 20 head purchased from George's son (and any of their offspring which remain in the herd), about which Wife makes no argument, Husband's interest in the remainder of the 80 head of cattle is presumed to be marital property because they were born during the marriage. A party claiming that property, which is presumed to be marital, is in fact separate or nonmarital has the burden of

rebutting the presumption. In re Marriage of Patroske, 888 S.W.2d 374, 379-80 (Mo.App.S.D.1994); Jensen v. Jensen, 877 S.W.2d 131, 136 (Mo.App.E.D.1994). We are directed to no evidence in this case upon which the trial court could have based its finding that Husband's one-half interest in the descendants of the herd which originated with his parents was his separate property. Likewise, our own review of the record has revealed none. It was error for the trial court to...