Marriage of Gilmore, In re

• Decision Date: 02 May 1997
• Docket Number: No. 20798,20798
• Citation: 943 S.W.2d 866
• Parties: In re the MARRIAGE OF GILMORE. Patsy Ann GILMORE, Petitioner-Appellant, v. Edward Merle GILMORE, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 866

943 S.W.2d 866

In re the MARRIAGE OF GILMORE Patsy Ann GILMORE, Petitioner-Appellant, v. Edward Merle GILMORE, Respondent-Respondent.

No. 20798.

Missouri Court of Appeals,

Southern District,

Division Two.

May 2, 1997.

Kay A. Van Pelt, Springfield, for appellant.

Susan S. Jensen, Springfield, for respondent.

SHRUM, Judge.

Patsy Ann Gilmore (Wife ¹) appeals from a judgment dissolving her marriage to Edward Merle Gilmore (Husband), claiming an inequitable division of property resulted from the trial court's mischaracterization, as Husband's nonmarital property, of certain real estate parcels, notes secured by realty, and tangible personal property items. We affirm in part, reverse in part, and remand with directions.

FACTS

The parties married June 21, 1982; their final separation was August 17, 1993. Trial began August 30, 1994, upon which date Wife was 54 years old and Husband was 61. No children were born of the marriage.

Wife's employment history included factory and restaurant work. At the time of trial she worked seven days a week at a nursing home where she earned $5.25 an hour. Her formal education was through the ninth grade with no graduate equivalency degree. Wife had several health problems: disc disease, osteoporosis, migraine headaches, and a pinched nerve in her elbow.

Husband worked for Hamby's Steak House in Springfield for 34 years. His employment ended with an on-the-job injury in 1984 when, during a robbery of the restaurant, he was struck on the head with a claw hammer. He received workers' compensation benefits of $42,500, including a lump sum payment of $28,900 and weekly payments totaling $13,600. Adjudged disabled by the Social Security Administration, he received monthly social security disability benefits of $900, which continued as of the date of the trial.

Before marriage, each party owned real and personal property. Wife's real estate, a home at Nixa, Missouri, was subject to a lien of approximately $14,000 in favor of the Farmers Home Administration (FmHA). Within 60 days after marrying, Wife sold her real estate for $32,000, receiving $2,000 down with the balance paid by the buyers' note for $30,000 secured by a first deed of trust. Both Husband and Wife were payees on the note and beneficiaries on the deed of trust. To remove the FmHA's lien, Husband used $12,176.81 of his pre-marriage money and Wife used $1,000 of her savings. Wife's other Husband testified that, as of the date of marriage, he owned real and personal property with a total value of $351,000, including a note secured by a deed of trust on 2325 South Porter, Joplin, Mo., balance due of $15,000; a note secured by a deed of trust on 806 Pennsylvania, Joplin, Mo., balance due of $27,500; the Riverside Motel, Brunswick, Mo., sold under a contract for deed, balance due of $162,000; Evelyn Kerns' note and deed of trust, balance due of $15,000; balance in account at Commerce Bank, $18,000; a coin collection worth $7,500; and $5,000 cash, kept in a safe in his residence. Husband's only pre-marriage debt was a note on the Riverside Motel with a balance of "$17,000 or $18,000."

pre-marriage assets were a 1969 or 1970 Oldsmobile automobile valued at $150, household furnishings, and two bank accounts.

Explaining his pre-marriage accumulation of assets, Husband testified that over the years he had bought and sold real estate as a "kind of hobby," and that, although he had worked many years at the restaurant for modest wages, he had once owned "as much as 40 houses free and clear." Husband testified he had always lived "frugally" and he never had a credit card. Before and after marrying, Husband kept as much as $37,000 cash in his safe from which he generally paid his bills, and he often used cash for investments. Consequently, he had few canceled checks or other documents to aid in tracing his business activities. Husband explained that each time he took money from the safe, he left a note stating the amount he took or the amount remaining.

Throughout the marriage, Husband kept his business checking account at Commerce Bank, maintaining the account only in his and his daughter's names. Husband and Wife had a joint checking account.

During the marriage, most of Husband's pre-marriage notes and contracts for deed were paid off, and Husband used the proceeds to buy real and personal property and make investments. Most of the property acquired during the marriage was titled in Husband's name alone, although on at least one occasion he titled real estate in his son's name. One parcel of realty, 1515 North Hampton in Springfield, purchased with money given Husband by his former employer as a Christmas gift, was originally titled in Husband's and Wife's names. Two years later, Wife conveyed her interest to Husband. Husband testified, "We were keeping our accounts separate and everything and she acknowledged that this was my house and because her name had appeared on it she gave me a release...."

Wife testified that when they married, Husband told her he had sold all his assets and given the proceeds to his children. She said that when they married she "[didn't] know what [property] he had. I never seen none of it. All I've ever heard is talk. If you can't see nothing, talk is just clear air." Wife said Husband never gave her any cash during the marriage, he was "very controlling," and she generally "kept [her] mouth shut" because that made Husband "easier to live with." Wife did not have the combination to the safe Husband kept at the family residence and she never was permitted to see inside it.

Regarding Husband's numerous transactions during the marriage, she testified, "Merle never give me the papers to sign that were filled out. They were always blank when I signed them.... That's the way he did business." She said Husband told her "several times" that "the reason he didn't put my name on the mortgages and ... deeds was because, if he did, I would get three-fourths and the state would already give me half."

Wife's primary effort at trial was to identify property--realty, notes secured by realty, and tangible personalty--acquired during marriage and to demonstrate her contribution to their acquisition while much of Husband's evidence focused on tracing proceeds from his pre-marriage property into those properties in order to show they were nonmarital.

Of the contested properties, the trial court characterized two parcels of lake realty and The trial court classified most of the contested properties as Husband's nonmarital property. In each of six points on appeal, Wife contends the trial court's classification was erroneous and an unjust distribution resulted. She argues Husband did not present clear and convincing evidence to rebut the statutory presumption that the contested properties, all acquired during the marriage, were marital.

associated personalty (valued at $24,636) as marital, awarded them to Husband, and ordered Husband to pay Wife $12,318 as a set-off. The trial court also ordered Husband to pay Wife $6,646.38, an amount it characterized as the "net proceeds" from the sale of Wife's pre-marriage house, monthly maintenance of $500, and attorney fees.

APPLICABLE LAW

At issue is the trial court's application of Section 452.330, ² which governs the division of property in a dissolution action. Relevant portions of the statute provide as follows:

"1. In a proceeding for dissolution of the marriage ... the court shall set apart to each spouse his nonmarital property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors including:

"(1) The economic circumstances of each spouse at the time the division of property is to become effective ...;

"(2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;

"(3) The value of the nonmarital property set apart to each spouse;

....

"2. For purposes of sections 452.300 to 452.415 only, "marital property" means all property acquired by either spouse subsequent to the marriage except:

"(1) Property acquired by gift ...;

"(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift ...;

....

"(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.

"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 co-ownership.... 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.

"4. Property which would otherwise be nonmarital property shall not become marital property solely because it may have become commingled with marital property."

The showing required under Section 452.330.3 to rebut the marital property presumption must be made by clear and convincing evidence. In Re the Marriage of Johnson, 856 S.W.2d 921, 925 (Mo.App.1993). " 'For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder's mind is left with an abiding conviction that the evidence is true.' " In Re Estate of Dawes, 891 S.W.2d 510, 522 (Mo.App.1994) (quoting In the Interest of M.J.A., 826 S.W.2d 890, 896 (Mo.App.1992)). There need not be one single event that "instantly tilts the scales." Estate of Dawes, 891 S.W.2d at 522. The trial court may be clearly convinced of the affirmative of a proposition even though it has contrary evidence before it, and evidence

in the record that might have...