Marriage of Herr, In re
Decision Date | 13 February 1986 |
Docket Number | No. 13640,13640 |
Citation | 705 S.W.2d 619 |
Parties | In re the MARRIAGE OF Donna M. HERR and Donald Dean Herr. Donna M. HERR, Petitioner-Appellant, v. Donald Dean HERR, Respondent-Respondent. |
Court | Missouri Court of Appeals |
Anita I. Rodarte, Sheldon Bernstein, Thayer, Bernstein & Bass, Kansas City, for petitioner-appellant.
Jerry E. Wells, Joseph W. Schoeberl, Joplin, for respondent-respondent.
In this dissolution proceeding, the judgment of the trial court included the following. The marriage was dissolved and two children were placed in joint custody, subject to several detailed provisions. An interest in a 200-acre farm and five cows were determined to be separate property of the husband. A residence was declared to be the separate property of the wife. The marital property was distributed and debts assigned. The wife asserts the trial court erred in determining the interest in the farm was separate property and in apportioning the marital property.
The following is an outline of the facts pertinent to the disposition of this appeal. Husband is a farmer. At the time of marriage in 1972, he was employed by his parents in the operation of their 200-acre dairy farm for $150 per week. After their marriage, the parties lived in a mobile home placed on that farm. The husband continued his employment until 1975.
In 1975, the husband's father was suffering from a terminal illness. On January 6, 1975, the farm was placed in the name of the father, the mother and the husband, "as joint tenants with right of survivorship and not as tenants in common and not as tenants by the entirety." The father and mother gave the son the dairy herd of 53 cattle and all the farm machinery and equipment. The husband assumed the operation of the farm as a sole proprietor. He employed his mother to aid in milking for $150 per week. The father died in July, 1978. The mother's employment terminated in 1979 when she remarried.
At that time she moved from the farm home. From that time until their separation, the parties lived in that home. The husband lived there at the time of trial. After the marriage the wife aided on the farm. She started working at a quick shop store in approximately 1975. In 1977 she was employed by the owner of several such stores. At the time of trial she was yet so employed. In her employment she kept running inventories on all the stores. Upon the basis of evidence which need not be here recited, the trial court found the wife had become infatuated with that owner. The parties separated in 1982. Upon separation, the wife spent two months with her parents in Arizona. She then returned, bought a residence in Joplin which was declared to be her separate property, and resumed her employment.
At the time of marriage, the husband owned a 40-acre farm and some machinery. Until the separation, the parties had a joint bank account. This account was used as the personal account of the parties. After 1975, it was used in the operation of the farm. The husband sold his 40-acre farm and its proceeds were deposited in this account. At the time the parents' farm was placed in the joint tenancy, it was subject to a deed of trust. There was a conflict in the evidence concerning the principal balance at that time. The trial court determined it to be $13,000 and that determination is supported by the evidence. After the transfer, the payments on the indebtedness were made by milk checks or from the joint account. In 1980, the indebtedness was refinanced. At the time of trial, the principal balance of the indebtedness was $12,855.
The trial court declared a one-half interest in the farm, five cows and certain farm machinery to be separate property of the husband. The residence in Joplin was determined to be separate property of the wife. The remainder of the property owned by the parties was found to be marital property. Upon considering the value of the marital property after deducting the marital debts, the trial court determined an equal division of the marital property was just. A vehicle and certain items of household goods were set apart in kind to each party. The balance of the marital property, principally consisting of cattle, farm machinery and equipment and supplies and crops, was awarded to the husband. The husband was charged with the payment of all the marital debts. The value of the property awarded to the wife was $7,690.00. The net value of the property awarded to the husband was $42,857.25. The difference was $35,167.25. To accomplish an equal division of the marital property, the wife was awarded a judgment against the husband in the amount of $17,583.62, to be paid in installments and upon terms specified in that judgment.
In the trial court the wife contended the husband's interest in the farm was marital property but if not, that she was entitled to a charge against the husband's interest to the extent the same had been enhanced by marital funds and effort. She preserved this point in her initial brief. She stated the evidence established the "appellant is entitled to a monetary award or the imposition of a charge on the farm to the extent marital funds reduced the debt." She cited cases such as Bishop v. Bishop, 658 S.W.2d 512 (Mo.App.1983).
Before the wife's reply brief was filed, Hoffmann v. Hoffmann, 676 S.W.2d 817 (Mo. banc 1984) was decided. By her reply brief, the wife contends "[t]he trial court erred in refusing to award appellant her marital share of the 200 acre farm because substantial evidence at trial established that the source of funds used to acquire the farm were entirely marital." By that brief, the wife did not suggest remand. Instead, she argued the evidence established her interest and cited cases such as Hoffmann v. Hoffmann, supra, and Harper v. Harper, 294 Md. 54, 448 A.2d 916 (1982). However, upon oral argument the wife recommended remand of the case for the purpose of tracing the marital funds. During that argument she again relied upon Hoffmann and Harper and similar cases decided by the courts of Maine.
There is no question that the source of the funds rule as enunciated in Hoffmann is applicable to the disposition of this appeal. Sumners v. Sumners, 701 S.W.2d 720 (Mo.1985). However, the application of that rule does not necessarily require a remand.
The duty of this court is declared by Supreme Court Rule 84.14. "Unless justice otherwise requires, the court shall dispose finally of the case." Rule 84.14. Where there is a "dearth of evidence relative to the source of the funds rule," justice requires remand. Sumners v. Sumners, supra. That was also true in Heilman v. Heilman, 700 S.W.2d 843 (Mo. banc 1985). However, justice does not require a remand to permit a party to relitigate a factual issue that was before and decided by the trial court.
In this case, it is decisive that two issues, heretofore noted, were litigated in the trial court. The first was whether or not placing the farm in joint tenancy was the gift of an interest to the husband, or if he acquired that interest as marital property. The second was whether or not the wife was entitled to a charge against the interest of the husband and, if so, the amount of that charge. The establishment of the lien the wife sought required the same tracing of marital funds as is required to establish a marital interest under the source of the funds rule. There has been no suggestion of any evidence made relevant by the application of the source of funds rule that was not relevant to the two issues that were litigated. Nor does the record indicate the presence of such evidence as was true in Heilman. The application of the legal principles of the source of the funds rule, which the wife argued in her reply brief, does not require the excessive expense of retrial. See Hoffmann v. Hoffmann, supra. The record is such that this court can apply the source of the funds rule and dispose of the case as directed by Rule 84.14.
As noted, the wife first contends that the entire interest of the husband in the farm is marital property. She argues the farm was transferred to the husband "in consideration of the agreement by Appellant and Respondent to assume the indebtedness on the farm." She then states that all payments upon the indebtedness made after the transfer were made from marital funds. Therefore, she concludes "the source of the funds used to acquire the property were entirely marital" and the husband's one-half interest was marital property.
The premise for that argument is not sound. "A gift is a voluntary transfer of property without consideration or compensation as an incentive or motive for the transaction." Hull v. Hull, 591 S.W.2d 376, 380 (Mo.App.1979). The conveyance was made when the father was terminally ill. The value of the farm was greatly in excess of the indebtedness secured by it. The recitation of the assumption of the existing indebtedness by the grantor parents and the husband provides no motive for the conveyance. Even had the wife assumed the indebtedness, the character of the transaction would not thereby be altered. The assumption of indebtedness does not constitute acquisition by the use of marital funds. Mothershed v. Mothershed, 701 P.2d 405 (Okl.1985). Cf. Stark v. Stark, 539 S.W.2d 779 (Mo.App.1976). The trial court found the creation of the joint tenancy was in the nature of a testamentary gift and the husband's interest so created was his separate property. That finding does not erroneously apply the law, it is supported by the evidence and will not be disturbed. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).
The wife next contends even if the husband's interest in the farm is separate property, under the source of the funds rule she is entitled to a "share of the appreciation in the value of the farm attributable to the period of time when the marital unit assumed the debt on the farm." This argument is seemingly also based upon the...
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