Moritz v. Moritz, s. WD

• Decision Date: 22 December 1992
• Docket Number: Nos. WD,s. WD
• Citation: 844 S.W.2d 109
• Parties: Sandra Sue MORITZ, Appellant-Respondent, v. Lawrence Jeffrey MORITZ, Respondent-Appellant. 45508, WD 45525.
• Court: Missouri Court of Appeals

Page 109

844 S.W.2d 109

Sandra Sue MORITZ, Appellant-Respondent, v. Lawrence Jeffrey MORITZ, Respondent-Appellant.

Nos. WD 45508, WD 45525.

Missouri Court of Appeals,

Western District.

Dec. 22, 1992.

Regina Keelan Bass, Thayer, Bernstein, Bass & Monaco, P.C., Kansas City, for appellant-respondent.

David R. Rootes, Law Offices of John P. Ryan, Jr., Grandview, for respondent-appellant.

Before ULRICH, P.J., and SHANGLER and FENNER, JJ.

ULRICH, Presiding Judge.

Sandra Sue Moritz appeals, and her former husband, Lawrence Jeffrey Moritz, cross-appeals from portions of the decree dissolving their unique twenty-two year marital relationship. The points on appeal concern the division of marital property, maintenance, and award of attorney fees. The judgment is affirmed in part as amended, reversed in part and remanded with directions to permit additional evidence and to make certain determinations regarding Mr. Moritz's federal pension and maintenance to Ms. Moritz consistent with this opinion.

Mr. Moritz raises a single point on appeal. He contends the trial court erred (IA) in determining the residence titled in Ms. Moritz's name was her non-marital property. ¹ Ms. Moritz raises three points on appeal. Ms. Moritz contends that the trial court erred (IB) in finding that Mr. Moritz's naval pension was a non-marital asset and/or that it could not be divided as property and in awarding the entire pension to Mr. Moritz, (II) in not awarding her any maintenance, and (III) in failing to award her any attorney fees.

Mr. and Ms. Moritz were married on March 7, 1969, and separated October 9, 1985. Ms. Moritz filed her petition for dissolution on April 6, 1989. In her petition, Ms. Moritz requested maintenance, attorney fees, and an equitable distribution of the marital property. In his answer and cross-petition, Mr. Moritz denied that petitioner lacked sufficient property and earning capacity to provide for her maintenance or attorney fees and asked for an equitable distribution of the marital property. A hearing was held in the matter on August 14, 1991.

The evidence adduced at trial showed that Mr. Moritz was in the Navy during the majority of the marriage (for twenty-eight years from 1960-1988) and that the Moritzes had very limited contact with each other throughout the course of the marriage. Ms. Moritz resided in Missouri during the entire tenure of the marriage, and Mr. Moritz returned to Missouri from his naval duties only sporadically. Although two children were born during the marriage, Ms. Moritz admitted that Mr. Moritz was not their biological father and did not request child support for them.

From the time the Moritzes married until 1979, Ms. Moritz and her children lived with Ms. Moritz's grandparents. Ms. Moritz stated at trial that in August of 1979, her grandparents furnished $25,000 for the down payment for a house. Ms. Moritz used the money to purchase the house in which she and one of her children lived at the time of the trial. The house was titled in her name only. Mortgage payments were made on the house until April 1984, when Ms. Moritz paid the balance on the mortgage with $24,000 to $25,000 she received as a gift from the father of her children.

At the time of the trial, Mr. Moritz, who was fifty years old, testified he was retired from the Navy and received a gross monthly naval pension payment of $2,090, $1,388 per month of which was disposable pay. Mr. Moritz stated that he had worked occasionally as a bartender since his retirement, but he claimed he received no payment for this work.

Ms. Moritz did not work at any time during the marriage. At the time of trial, Ms. Moritz was totally disabled by multiple sclerosis and suffered numerous health problems. Her only income at that time was from Aid to Families with Dependent Children and food stamps.

The trial court entered the decree of dissolution on August 16, 1991. The trial court found that neither party was entitled to maintenance, that the house was Ms. Moritz's separate property, and that Mr. Moritz's naval pension was marital property. The trial court decreed that neither party be awarded maintenance, that Ms. Moritz receive the house in its entirety, that Mr. Moritz receive his naval pension in its entirety, and that Mr. and Ms. Moritz be responsible for their own attorney fees.

I. Division of Marital Property

A. House

Mr. Moritz alleges in his cross-appeal that the trial court erred in determining that the parties' marital residence was the nonmarital property of Ms. Moritz. Mr. Moritz contends that the trial court mistakenly applied the "inception of title" theory, which has been judicially overruled, instead of the proper "source of funds" rule.

The scope of review of the trial court's actions regarding this point and the other points presented on appeal in this court-tried civil case is defined in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The decree of the trial court will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Id.

Section 452.330, RSMo Supp.1991, governs the disposition of property upon dissolution of marriage. Section 452.330.1 directs the court to set apart to each spouse his or her nonmarital property and to divide the marital property "in such proportions as the court deems just" after considering five factors. All property acquired by either spouse after the marriage and before a decree of legal separation or dissolution of marriage is presumed under the statute to be marital property and thus subject to a just division, regardless of whether title to the property is held individually or by the spouses jointly. § 452.330.3. This presumption can be overcome by a showing that the property was acquired by a method listed in subsection 2 of the statute, which defines marital property as all property acquired by either spouse subsequent to the marriage except:

(1) Property acquired by gift, bequest, devise, or descent;

(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;

(3) Property acquired by a spouse after a decree of legal separation;

(4) Property excluded by valid written agreement of the parties; and

(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.

§ 452.330.2.

Prior to 1984, Missouri courts applied the "inception of title" doctrine to determine when property is "acquired" for purposes of classifying it as marital or nonmarital. Hill v. Hill, 747 S.W.2d 718, 719 (Mo.App.1988). Under the "inception of title" approach, property is classified as entirely separate or entirely marital at the moment title is taken. Id. In Hoffmann v. Hoffmann, 676 S.W.2d 817, 825 (Mo. banc 1984), the Missouri Supreme Court discarded the "inception of title" doctrine and adopted the "source of funds" rule. Under the "source of funds" rule, property is considered to be acquired not when title passes, but as it is paid for, Id. at 824; Hill, 747 S.W.2d at 719, and "[i]ncremental property values are allocated proportionately to either marital or separate estates according to the source of funds used to purchase the property." Hill, 747 S.W.2d at 719. In order to determine the marital interest in debt-free property that has been acquired by the investment of both marital and nonmarital funds, the proper formula to use is:

marital contribution x value

total contribution

Neal v. Neal, 776 S.W.2d 861, 867 (Mo.App.1989). Marital contribution is the marital contribution toward the purchase or improvement of the property in question; total contribution is the sum of both marital and nonmarital contributions; and value is the total value of the property at the time of its distribution. Id.

Ms. Moritz testified at trial that her grandfather gave her $25,000 to use as a down payment for a house and that she in fact used the money to purchase the house in question in August of 1979. She stated that the house was titled in her name only and that she did not inform Mr. Moritz until several months later that she had purchased a house because "I was buying the house with my grandfather's help. It wasn't anything to do with [Mr. Moritz]." She testified that house payments of $304 per month were made on the house until April of 1984, when she used $24,000 to $25,000 given to her by the biological father of the two children born during the marriage. When asked the source of the money used to pay the mortgage payments from August 1979 to April 1984, Ms. Moritz claimed that she did not make the payments with any money Mr. Moritz sent her, but admitted that other than contributions of clothing and other things for the children made by the children's biological father, her only source of income was allotment checks sent by the Navy because of Mr. Moritz's employment in the Navy. When the trial court confronted her directly, Ms. Moritz conceded, "[W]ell, he [Mr. Moritz] didn't pay all of it."

Mr. Moritz claimed at trial that his name was not on the title because he was on a naval cruise and his "credit wasn't any good" at the time Ms. Moritz purchased the house. He asserted that Ms. Moritz never told him she received money from either her grandfather or the biological father of her children.

When asked at the close of the trial in this case whether the trial court was going to divide the house, the trial court responded "well, the record of title is now in her name," but noted

his money was used under the evidence here and you might get this record, if a subsequent lawsuit is filed, and you've got a real nicety there because it looks like that he has paid into that thing $17,000--let's see, I had it...