Marriage of Johnson, In re
| Decision Date | 08 July 1993 |
| Docket Number | No. 18247,18247 |
| Citation | 856 S.W.2d 921 |
| Parties | In re the MARRIAGE OF JOHNSON. Johnny W. JOHNSON, Petitioner-Appellant, v. Peggy Louise JOHNSON, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
C. Ronald Baird, Mark J. Millsap, Dorr, Baird and Lightner, Springfield, for petitioner-appellant.
Warren S. Stafford, Taylor, Stafford, Woody, Cowherd & Clithero, Springfield, for respondent-respondent.
This is a dissolution of marriage case. Johnny W. Johnson appeals from those portions of a dissolution decree that awarded maintenance to Peggy Louise Johnson and classified 142 shares of corporation stock as marital property.
We affirm in part and reverse and remand in part.
Johnny and Peggy, 1 ages 48 and 47 respectively at the time of trial, were married February 16, 1966. Their marriage was dissolved June 4, 1992, following a separation that began in March 1990. No children were born of the marriage.
Since 1962 Johnny has worked for Springfield Brake Company, a privately owned corporation of which he is now part owner. He is president and general manager of that firm, serves on its board of directors, and runs its daily operations. The business specializes in brakes, particularly for the trucking industry, and has a service shop and a parts department.
As characterized by the trial judge, one of the larger disputes is centered around Johnny's ownership interest in Springfield Brake. The two owners of that company at the time of trial were Frank Ellis, the majority stockholder, and Johnny. It was uncontroverted that Johnny owned 147 shares in the company. The dispute arose, however, as to how many of the 147 shares were given to Johnny as gifts from other shareholders and, for that reason, should have been classified as nonmarital property.
When Springfield Brake was organized in early 1940, the company was owned by Herb Johnson, Johnny's father, and another family member. By the mid-1950's the stock of Springfield Brake was owned by Frank Ellis, his brother John Ellis, and Herb Johnson. In March 1969 the corporation and its shareholders entered into a buy-sell agreement which provided that upon the death of a shareholder the corporation had an obligation to buy the deceased shareholder's stock from his estate. The stock price was to be determined by a formula described in the agreement.
In 1984 Herb Johnson died. A second shareholder, John Ellis, died in 1990. Pursuant to the contract, Springfield Brake bought the stock of each deceased shareholder. At the time of trial the corporation still owed the Herb Johnson and John Ellis estates part of the stock purchase price, approximately $250,000 and $500,000, respectively.
Frank Ellis testified during the dissolution proceeding that he and his deceased brother, John Ellis, for a number of years gave shares of stock in Springfield Brake to Johnny because they liked him. According to Frank, "He was like more family than anything." Additional reasons ascribed by Frank for the gifts were that "[Johnny was] a good employee and [we] wanted to involve him in the company." Keeping Johnny involved in the company afforded the Ellis family "a way to get money out of the company." However, Frank was unable to recall exactly how many shares he and his brother had given Johnny.
Scott Roberts, who had been an accountant for Springfield Brake since 1978 and who also had prepared individual tax returns for Frank and John Ellis, testified concerning the gifts of corporate stock given to Johnny by the Ellises. The Ellis brothers told Roberts they wanted to give Johnny shares of stock, but they limited the amount of such gifts to stay within the annual Internal Revenue Code gift tax exclusion. Stock transfers to Johnny began in 1985 and continued through 1991.
The number of shares transferred by the Ellis brothers each year was obtained by completing an annual evaluation of the Springfield Brake stock, using a formula in the shareholder's buy-sell agreement. The per share value derived from the formula was then divided into the annual gift tax exclusion. The resulting number of shares was transferred to Johnny.
By examining the annual personal income tax returns of Frank and John Ellis and by examining the corporate records of stock transfers, Roberts determined that By its decree the trial court classified 142 of Johnny's 147 shares of stock in Springfield Brake as marital property and awarded those to Johnny. The remaining five shares were classified as nonmarital property and set apart to Johnny. The 142 shares were valued at $642,221.98. Other marital property awarded to Johnny was valued at $126,297.32.
between July 1, 1985, and June 30, 1991, the Ellis brothers had given Johnny 31.6 shares of stock. In addition to the stock given to Johnny by the Ellis brothers, Johnny purchased some stock from them with money he received in the form of annual bonuses from the corporation. According to Johnny, an additional 5 shares were acquired by gift from his father.
The court awarded Peggy marital property valued at $279,472.42. Her property included the family residence valued at $65,000 and a duplex valued at $125,000, both of which were unencumbered, as well as a $49,334.46 certificate of deposit against which there was a loan of $4,072.76. Other marital property awarded to Peggy was a checking account, a motor vehicle, insurance policies, and household furniture.
To equalize the distribution of marital property, the trial court ordered Johnny to pay Peggy the sum of $238,000, either in cash or by paying $23,800 in cash within 30 days of the decree and the balance in yearly installments of $23,800, plus interest at "the legal rate ... provided by law." In addition, spousal maintenance of $600 per month was ordered to be paid by Johnny to Peggy.
Appellate review of a court-tried case is governed by the principles enunciated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). See Mistler v. Mistler, 816 S.W.2d 241, 245 (Mo.App.1991). Thus we must affirm the judgment of the trial court 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. Murphy, 536 S.W.2d at 32.
Johnny raises two points on appeal. Because our decision on his second point controls the resolution of his first claim of error, we address his points in reverse order.
In his second point Johnny complains that the trial court erred in classifying 142 of his shares in Springfield Brake as marital property. He argues that the uncontroverted evidence shows: (1) at least 31.6 of the 142 shares of stock were gifts made to him alone, (2) the gifted shares have always been titled solely in his name, and (3) being gifts, the 31.6 shares are nonmarital property pursuant to § 452.330.2, RSMo Supp.1988, and should be set over to him.
The general rule in Missouri when dividing property by dissolution proceeding is that property acquired by either spouse during the marriage is classified as marital. § 452.330.2, RSMo Supp.1988. 2 This statutory presumption may be overcome by showing that the property was acquired by one of the methods excepted by the statute. § 452.330.3, RSMo Supp.1988. 3
The party attacking this presumption has the burden of showing the property claimed to be separate and nonmarital falls within one of the enumerated exceptions. In re Marriage of Reed, 762 S.W.2d 78, 81 (Mo.App.1988). Although § 452.330 does not indicate the degree of proof required to overcome the "presumption," the statutory presumption must be rebutted by clear and convincing evidence. Id. at 81.
After a two day hearing, the trial court in the case at bar said the following in its decree about the 31.6 shares which Johnny claims are nonmarital:
[T]he corporation's accountant, Scott Roberts, testified that he had checked the records and that the other stockholders, Frank Ellis and John Ellis, now deceased, had gifted to petitioner 31.6 shares of stock but Frank Ellis also testified that the stock had been given to Mr. Ellis [presumably Johnny] to compensate petitioner [hereafter "Johnny"] and keep him there to run the company and that by so doing instead of giving [Johnny] a bonus, this left more capital in the company for operating capital. The court also finds that the only evidence of these gifts were conclusional statements of [Johnny], Mr. Ellis and Scott Roberts, and that petitioner failed to rebut the presumption of marital property with clear and convincing evidence. Therefore the court finds that 142 of the 147 shares of common stock which [Johnny] holds in Springfield Brake are marital property. The other five (5) shares were a gift from petitioner's father and are non-marital property. (Emphasis ours.)
Obviously the trial court relied heavily upon the testimony of Frank Ellis, the majority shareholder in Springfield Brake, in refusing to classify the allegedly "gifted" 31.6 shares of stock as nonmarital property. His testimony, in pertinent part, was as follows:
Q. (to Frank Ellis) Do you know how [Johnny] acquired his stock in Springfield Brake?
A. He bought some, and my brother and I gave him some.
Q. And what was the reason that you gave [Johnny] stock?
A. Well, we liked him. He was like more family than anything.
Q. When you gave Mr. Johnson stock, did you give that stock to Mr. Johnson individually?
A. Yes.
Q. Did you ever intend that stock be given to [Johnny] and his wife jointly.
A. No.
Q. How does [Johnny] currently hold the stock? In what name does he hold the shares of stock that he has in Springfield Brake?
A. Johnny Johnson.
Q. You said that Mr. Johnson had acquired stock by both gift and purchase?
A. Yes.
Q. And you said that he--you and your brother have given him shares of stock?
A. Yes.
Q. Do you remember how much or how many shares of stock you've given Johnny Johnson?
A. No, I...
To continue reading
Request your trial
-
Marriage of Hunt, In re, s. 20382
...is that property acquired by either spouse during the marriage is classified as marital. § 452.330, RSMo 1994; In re Marriage of Johnson, 856 S.W.2d 921, 924 (Mo.App.1993). Appellants argue the radio station was never actually acquired by Husband or Wife because it was held in a resulting t......
-
Linton v. Linton, 25176.
... ... Missouri Court of Appeals, Southern District, Division One ... October 17, 2003 ... [117 S.W.3d 201] ... W. Henry Johnson, Sims, Johnson, Wood & Farber, Neosho, for Appellant ... Greg R. Bridges, Evenson & Carlin, L.L.C., Pineville, for Respondent ... Willa Dean Linton ("Wife") appeals from the judgment of the Circuit Court of McDonald County dissolving her thirty-seven year marriage with James Calvin Linton ("Husband"). In her sole point relied on, Wife maintains the trial court's award of $200.00 a month maintenance from Husband ... ...
-
Engeman v. Engeman
... ... Engeman (Wife) were married on November 10, 1984. On June 20, 1999, Wife filed her petition for dissolution of marriage. While the case was pending, Husband's father, Vincent A. Engeman, was joined in the action as a third-party respondent. Father was Husband's partner ... Only one of the cases cited by Husband and Father, In re Marriage of Johnson, 856 S.W.2d 921, 926 (Mo.App.1993), involved the reversal of a trial court's determination that certain property was not a gift and was marital ... ...
-
Michel v. Michel
... ... KENNETH W. SHRUM, Judge ... Chester R. Michel ("Husband") appeals from a judgment dissolving his marriage to Rhonda Michel ("Wife"). Husband challenges the portions of the judgment awarding Wife maintenance and attorney fees and the division of marital ... §§ 452.335.1(1), 452.335.2(1),(5),(8). See In re Marriage of Johnson, 856 S.W.2d 921, 927 (Mo.App.1993).7 ... Appeal dismissed ... PREWITT, P.J., PARRISH, J., MONTGOMERY, P.J., ... ...