Mika v. Mika

• Decision Date: 24 February 1987
• Docket Number: No. 49897,49897
• Citation: 728 S.W.2d 280
• Parties: Steven Paul MIKA, Appellant, v. Deborah Ann MIKA, Respondent.
• Court: Missouri Court of Appeals

Page 280

728 S.W.2d 280

Steven Paul MIKA, Appellant, v. Deborah Ann MIKA, Respondent.

No. 49897.

Missouri Court of Appeals,

Eastern District,

Division Four.

Feb. 24, 1987.

Motion for Rehearing and/or Transfer Denied March 25, 1987.

Application to Transfer Denied May 19, 1987.

Hal B. Coleman and Leigh H. Greenhaw, Clayton, for appellant.

Michael J. Coleman, St. Louis, for respondent.

SATZ, Judge.

Husband appeals from a dissolution decree. He attacks the division of property, the award of maintenance and the attorney's fees. We affirm.

In this court tried case, we defer to the trial court's determinations of credibility, e.g., Davis v. Davis, 693 S.W.2d 879, 881- 882 (Mo.App.1985), and we 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. at 881.

The husband and wife married in March, 1978 and separated in April, 1983. Two children were born of the marriage: Steven, born on October 16, 1979 and Christopher, born on July 8, 1981. The wife worked as a nurse prior to the marriage but has not worked outside the home since the birth of Steven. The husband is a produce broker.

The trial court found 600 shares of stock in BLR Properties, Inc. to be marital property. The husband contends the record shows these shares are his separate property. On the present record, the trial court is correct.

At the time of trial, the husband had 900 shares of stock in BLR Properties, Inc. listed in his name. He admitted that 300 of the shares were acquired after the marriage and were marital property. The ownership of the remaining 600 shares is at issue.

As claimant to the 600 shares of stock, the husband has the burden of proving the shares were his. See generally, Horn v. Owens, 171 S.W.2d 585, 591 (Mo.1943) (burden of proof is upon the party asserting the affirmative of an issue). The procedural steps essential to this proof are generally defined by statute, § 452.330 RSMo. (Supp.1984) ¹ and are fleshed out by case law. Generally, property acquired before marriage and titled in the purchaser's own name is separate property. § 452.330.1; Boyce v. Boyce, 694 S.W.2d 288, 290 (Mo.App.1985). However, the dissolution statutes also create a legal presumption that property "acquired" subsequent to the marriage is marital property. § 452.330.3. The statutes also expressly list statutory exceptions to this presumption § 452.330.2(1)-(5); for example, "property acquired in exchange for property acquired prior to the marriage" is separate property. § 452.330.2(2). Naturally, the spouse seeking to rebut the statutory presumption of marital property carries the burden of proof. § 452.330.3; McDowell v. McDowell, 670 S.W.2d 518, 523 (Mo.App.1984); Fields v. Fields, 643 S.W.2d 611, 614 (Mo.App.1982). Additionally, if property is acquired prior to the marriage by loan, the property becomes marital property to the extent marital funds are used to pay off the loan. See Hoffman v. Hoffman, 676 S.W.2d 817, 824 (Mo.banc 1984).

In the present case, the husband attempted to carry his burden of proving the 600 shares were his separate property by relying on his testimony alone. However, at best, his testimony was evasive, equivocal and contradictory. At trial, the husband said he received the 600 shares in exchange for his interest in a farm which he purchased prior to the marriage. Apparently, this was an attempt to show the stock was received in exchange for his "separate property," i.e., his interest in the farm. If true, the exchange would have changed only the form of the property but not its character as "separate property". § 452.330.2(2). However, he could not recall when the exchange occurred. He first said the exchange occurred prior to the marriage. Later, he said he could not remember whether the exchange took place prior to or after the marriage. This equivocation fails to show the exchange occurred prior to the marriage.

Then, at trial, he said he could not remember whether he used borrowed money or his own money to pay for his interest in the farm. In his deposition taken before the trial, he was just as equivocal. He said he "either paid cash or borrowed" the money to pay for this interest. In addition, he could not remember when he purchased his interest in the farm, nor could he remember what he paid for it. He "hazard[ed] a guess" the purchase occurred about 1976, and the price for his interest was "$8,000, $10,000 possibly." He also said he was "paying off a note [on the borrowed money] so much a month." "The note", he said, "was approximately a hundred dollars [?], but BLR Properties bought the note out so I didn't pay anything". However, he could not remember the date BLR "bought the note out" nor could he remember which bank, if any, was payee or holder of the note.

This testimony proves nothing more than the husband was an evasive, contradictory and equivocal witness. It certainly falls short of showing his interest in the farm was "acquired" as his separate property prior to his marriage. The farm may have been paid for with borrowed money or without borrowed money. If he paid for his interest with borrowed money, he did not show the debt was paid off prior to his marriage, and, if he paid off the debt during the marriage, there is no showing the debt was paid off with non-marital funds. Quite simply, the husband failed to show his interest in the farm was his separate property, and, thus, in turn, failed to show the shares of stock were his separate property. See Boyce v. Boyce, 694 S.W.2d at 291; McDowell v. McDowell, 670 S.W.2d at 523. We, therefore, find no reason to set aside the trial court's finding that the 600 shares of stock were marital property. ²

The husband next contends the disproportionate division of property in favor of the wife is not supported by the record. We disagree.

The trial court divided the property as follows:

Husband was awarded:

                900 Shares BLR Properties                  32,000.00
                Metropolitan Life Insurance Policy          2,285.32
                American United Life Insurance Policy       1.035.20
                Pension Profit Sharing Plan                12,500.00
                Rock Hill Partnership Interest             52,900.00
                Furnishings in his apartment                5,179.48
                IRA account                                 4,500.00
                Gustine Partnership Interest               32,500.00
                                                          ------------------
                                                          142,900.00
                Debt
                ----------------------------------------
                Second deed of trust on marital Property   30,000.00
                Gustine Partnership                        30,000.00
                Cash Award to Wife                         50,000.00
                                                          ------------------
                                                          110,000.00
                                                          = 33,220.00
                Wife was awarded
                Furnishings in Marital Home 3          25,500.00
                Marital Residence                          210,000.00
                Interest in Condominium                    20,000.00
                1979 Jeep                                   1,500.00
                Cash award                                 50,000.00
                                                          ------------------
                                                          307,000.00
                Debt
                ----------------------------------------
                Marital Residence Encumbered by
                First Deed of Trust                       133,000.00
                                                          = 174,000.00 4
                

The wife received 84% of the property and husband received 16%, obviously, unequal portions. Equal division of property, however, is not required by statute, E.g., Fields v. Fields, 643 S.W.2d 611, 617 (Mo.App.1982), and disproportionate divisions are routinely affirmed. Schwarz v. Schwarz, 631 S.W.2d 694, 695 (Mo.App.1982) 87%-13%; Scott v. Scott, 645 S.W.2d 193, 195 (Mo.App.1982) 79%-21%; Stamme v. Stamme, 589 S.W.2d 50, 53 (Mo.App.1979) 84%-16%; In Re Marriage of Burris, 557 S.W.2d 917, 918 (Mo.App.1977) 88%-12%. But see In Re Marriage of East, 708 S.W.2d 777, 782 (Mo.App.1986) 86%-14%.

Here, the property division is supported by statutorily approved factors. The economic circumstances of the parties support the division of the property. § 452.330.1(3). Economic circumstances include each party's individual capacity to work and earn. In re Marriage of Harrison 57 S.W.2d 366, 370 (Mo.App.1983). At the time of trial, the husband was earning a yearly gross salary and commissions of $119,998, and the two years preceding the trial he averaged gross salary and commissions of $121,217.50 per year. The wife stopped working at the husband's request shortly after the marriage. She was awarded custody of the parties' two minor children. She is currently unemployed. She would be required to take courses to be able to work again as a nurse.

Another factor to be considered is the balance between income and non-income producing property. § 452.330.1(2); Calia v. Calia, 624 S.W.2d 870, 872-873 (Mo.App.1981); Arp v. Arp, 572 S.W.2d 232, 235 (Mo.App.1978). The husband was awarded all the income producing property. The 900 shares of stock awarded to the husband were part of that income producing property. The wife received no income producing property. The balance struck here was well within the trial court's discretion. Calia v. Calia supra; Arp v. Arp, supra. Moreover, to remedy the disparity between income and non-income producing property, the trial court may include a cash award to the party receiving the non-income producing property. Calia v. Calia, supra at 873, and, the cash award need not be linked to any particular asset. Norman v. Norman, 604 S.W.2d 680, 685 (Mo.App.1980). Thus, the $50,000.00 cash award to the wife in the present case is justifiable.

It is also proper for the court to examine the need or desirability of awarding the family home to the spouse having custody of the children. § 452.330.1(3). The wife, having custody of the children, was...