Marriage of Lewis, In re

• Decision Date: 02 April 1991
• Docket Number: Nos. 16579,16602,s. 16579
• Citation: 808 S.W.2d 919
• Parties: In re the MARRIAGE OF Betty Ann LEWIS and Noel Rex Lewis. Betty Ann Lewis, Petitioner-Respondent-Appellant, and Noel Rex Lewis, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 919

808 S.W.2d 919

In re the MARRIAGE OF Betty Ann LEWIS and Noel Rex Lewis Betty Ann Lewis, Petitioner-Respondent-Appellant and Noel Rex Lewis, Respondent-Appellant.

Nos. 16579, 16602.

Missouri Court of Appeals,

Southern District,

Division Two.

April 2, 1991.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 23, 1991.

Application to Transfer Denied June 11, 1991.

Loren R. Honecker, Devon F. Sherwood, Sherwood, Honecker & Bender, Springfield, for petitioner-respondent-appellant.

Jerry L. Redfern, Richard L. Schnake, Neale, Newman, Bradshaw & Freeman, Springfield, for respondent-appellant.

PREWITT, Judge.

Both parties appeal from an amended decree of dissolution of their marriage entered August 22, 1989. The appeals have been consolidated.

I. FACTS

Betty Ann Lewis (wife) and Noel Rex Lewis (husband) were married on December 29, 1969. It was the second marriage for both. They each had children by their previous marriage. No children were born of this marriage. Five days before their marriage the parties signed an antenuptial agreement. Wife testified that she was not informed of husband's assets and did not know what they were. Husband said she was aware because of their relationship in the months before their marriage.

Husband is a medical physician specializing in pathology. He and another medical physician each own 50% of the corporate stock of Regional Pathology Services, Inc. The corporation supervises and apparently operates Springfield Medical Laboratory and receives all of its net income. The most recent income of husband in evidence from this source is from 1981 through 1985. Annual income varied from a high of $147,575 to a low of $117,000.

At the time of their marriage, wife was the chief medical technologist at Cox Medical Center, a Springfield hospital. Her employment at Cox Medical Center terminated a few days before their marriage. Previously she reported to pathologists in the Pathology Department of the hospital, "particularly to Dr. Lewis." After her employment ceased, she became a "full-time housewife." For approximately seven or eight years she worked only as a housewife and for the last ten years previous to trial worked on a part-time basis. At the time of trial she worked for four entities on "a part-time, fill-in basis." Her net monthly income was $844.35.

The trial court found that wife did not engage in misconduct during the marriage, but the husband did, which not only led to the breakup of the marriage, but affected the parties economically. There was evidence he bought an unrelated female expensive gifts and took her to the Virgin Islands and Hawaii. The trial court also found that husband was physically abusive to wife. Other facts are mentioned in discussing the points on appeal.

II. THE DECREE

The trial judge awarded marital property to wife valued at approximately $522,000. She also received nonmarital property valued at $26,985. Husband received marital property valued at $1,153,313.18. ¹ He was awarded nonmarital property valued at $160,836.26 plus many unvalued assets. Husband was also required to pay the wife, as a part of the property distribution, $252,200, and $23,270.20 to wife's attorneys as attorneys fees. Wife was to pay the amount of an encumbrance on real estate granted her of approximately $7,000. Husband was ordered to pay known debts of $168,346 and all state and federal income taxes and real property taxes for 1988 and prior years. No maintenance was awarded.

III. PARTIES' CONTENTIONS ON APPEAL

Husband has four points, the latter three "[a]lternatively to Point I". By his first point husband contends the trial court erred in refusing to enforce the parties' antenuptial agreement, because the finding is not supported by the evidence, is against the weight of the evidence, and erroneously declares and applies the law, "in that the evidence demonstrates that Betty was fully informed about the nature and extent of Rex's property at the time the agreement was executed and that the agreement is not unconscionable".

Husband's remaining points state the trial court erred (2) in determining the annuity was marital property, or "alternatively, any increase in the 'value' of the annuity policy is an increase in the value of property that Rex acquired prior to the parties' marriage" because a portion of the annuity "represents a rollover of separate property owned by Rex prior to the marriage"; (3) "in classifying Rex's interest in Springfield Medical Laboratory as marital property, because such a classification is unsupported by the evidence and is against the weight of the evidence, in that Rex acquired that interest in exchange for property that he acquired prior to the marriage"; and (4) "in refusing to take into account the income tax consequences of its property division, because its order that Rex pay Betty and her attorneys cash totaling $275,470.20 will cause Rex to incur an insupportable income tax liability, in that he will be required to liquidate his tax deferred retirement annuities in order to satisfy that judgment."

Wife contends the trial court erred in (1) denying her maintenance because there was substantial evidence in support of her claim and the denial was against the weight of the evidence "in that both petitioner's need for maintenance and respondent's ability to pay same were clearly established"; and (2) "in valuing respondent's [husband's] interests in Springfield Medical Laboratory and Regional Pathology Services, Inc. at $145,600 because such valuation is not supported by substantial evidence and is against the weight of the evidence". ²

IV. GENERAL REVIEW STANDARDS

Review is under Rule 73.01(c). As that rule is interpreted, this court is to affirm the judgment, unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. In re Marriage of Lafferty, 788 S.W.2d 359, 361 (Mo.App.1990). A judgment is to be set aside because it is against the weight of the evidence only with caution and with a firm belief that the decree or judgment is wrong. Plunkett v. Parkin, 788 S.W.2d 356, 357 (Mo.App.1990).

"Weight of the evidence" means its weight in probative value, not its quantity. Looney v. Estate of Eshleman, 783 S.W.2d 164, 165 (Mo.App.1990). "The weight of evidence is not determined by mathematics, but on its effect in inducing belief." Id.

Due regard is given to the trial court's determination on the credibility of witnesses. Rule 73.01(c)(2); Looney, 783 S.W.2d at 165. The trial judge is in a better position than this court to determine the credibility of the parties, their sincerity, character and other trial intangibles which may not be shown by the record. In re Marriage of Chilton, 576 S.W.2d 584, 585 (Mo.App.1979). The trial judge, as the trier of fact, can disbelieve testimony even when uncontradicted. Robinson v. Estate of Robinson, 768 S.W.2d 676, 677 (Mo.App.1989).

V. HUSBAND'S APPEAL

A. PRENUPTIAL AGREEMENT

Husband's first point, as earlier stated, is that the trial court erred in not enforcing the parties' antenuptial agreement. The trial court determined it was nonenforceable because there "was no meaningful disclosure of Respondent's [husband's] assets to Petitioner [wife]" and "was so one-sided that it is unconscionable." Husband argues these findings are not supported by the evidence and against the weight of the evidence. In Ferry v. Ferry, 586 S.W.2d 782 (Mo.App.1979), the Western District of this court determined antenuptial agreements contemplating dissolution of the parties' marriage are not against public policy and can be valid. The case determined they are invalid if "unconscionable" under § 452.325.2, RSMo 1986. ³

Ferry also said, based on cases considering the validity of agreements restricting or eliminating a spouse's property rights upon death, antenuptial agreements are invalid in a dissolution matter "unless entered into freely, fairly, knowingly, understandingly, and in good faith with full disclosure." 586 S.W.2d at 786. See also Nedblake v. Nedblake, 682 S.W.2d 852, 854 (Mo.App.1984); Whitenton v. Whitenton, 659 S.W.2d 542, 547 (Mo.App.1983); Williams v. Williams, 166 Ariz. 260, 801 P.2d 495, 498 (App.1990) (majority of jurisdictions find antenuptial agreements regarding maintenance valid if fair and with full disclosure).

As both parties cite and discuss, but neither challenges Ferry, review will be based upon it. It is not necessary to discuss unconscionability, as the evidence was sufficient for the trial court to find no meaningful disclosure of husband's assets.

The "full disclosure" required includes both the spouse's legal rights and the nature and extent of the property of the other spouse in order to make meaningful the decision to waive all or a part of those rights. See In re Estate of White, 718 S.W.2d 185, 186-187 (Mo.App.1986). In order to make an informed decision, a spouse should be substantially advised of the other spouse's property or have knowledge of those facts. Id. at 186. "No satisfactory rule as to the sufficiency of disclosure or equivalent knowledge can be formulated in concrete terms for this is ordinarily dependent upon the circumstances of the case." Estate of Tegeler, 688 S.W.2d 794, 797 (Mo.App.1985).

The agreement was entered into on December 24, 1969, five days before the parties' marriage. The wife testified she was not informed of husband's assets before signing the agreement. Husband contends the evidence showed wife was aware of all his assets.

Even if it is conceded wife knew husband owned certain types of property, including real estate, there is no indication she knew the extent of such holdings, whether the real estate was encumbered, and if so, the equity in it, or other specific information regarding it. The evidence was sufficient for the trial court to find there was not meaningful disclosure to...