Moseley v. Moseley, s. 12150

• Citation: 642 S.W.2d 953
• Decision Date: 22 November 1982
• Docket Number: 12151,Nos. 12150,s. 12150
• Parties: James Paris MOSELEY, Petitioner-Appellant-Respondent, v. Betty MOSELEY, Respondent-Respondent-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 953

642 S.W.2d 953

James Paris MOSELEY, Petitioner-Appellant-Respondent, v. Betty MOSELEY, Respondent-Respondent-Appellant.

Nos. 12150, 12151.

Missouri Court of Appeals,

Southern District,

Division Two.

Nov. 22, 1982.

Motion for Rehearing and to Transfer to

Supreme Court Denied Dec. 14, 1982.

Application to Transfer Denied

Jan. 17, 1983.

Bradley J. Fisher, John E. Price, Woolsey, Fisher, Whiteaker, McDonald & Ansley, Springfield, for petitioner-appellant-respondent.

John Alpers, Jr., Cabool, for respondent-respondent-appellant.

MAUS, Presiding Judge.

This action which now centers upon the fiscal aspects of a dissolution of marriage has a long and tortuous history. The parties were married in 1943. They reared two daughters. Commencing in 1950 the wife has suffered from a series of health problems including disorders of the bladder and colon, a ruptured appendix, tuberculosis, histoplasmosis, the removal of a portion of one lung and the surgical repair of two ruptured spinal discs. In May, 1976, she was again hospitalized and treated for a psychiatric disorder. Her treatment included medication and electrical shock treatments. She was discharged on May 28, 1976. On June 1, 1976, the parties separated.

On June 2, 1976, the husband took the wife to the office of an attorney (not now of counsel) in their community. A property settlement and joint petition for the dissolution of their marriage was prepared and signed. Shortly thereafter the wife was taken to the home of a daughter in Tennessee. On July 1, 1976, the husband only appeared in circuit court with the attorney and testified in support of the property settlement and dissolution. The wife had no notice of these proceedings. On July 12, 1976, a decree was entered dissolving the marriage and approving the property settlement. Under that property settlement the wife was to receive a 1969 Chevrolet, certain household goods, maintenance of $200 per month and the payment of her medical insurance premiums for five years or so long as the husband was employed in his current position or similar employment. At that time he was employed as a superintendent for Sho-Me-Power Corporation at an annual salary of $21,500. While in Tennessee, the wife was hospitalized for further psychiatric treatment. She returned to her home community in June, 1977.

On December 1, 1977, the wife filed a petition to set aside the property settlement and the decree of dissolution. The petition, among other things, alleged the property settlement was obtained by fraud and that she was not mentally competent to enter into a property settlement or a joint petition for the dissolution of her marriage. Trial upon that petition was held on December 1, 1978. On December 11, 1978, a judgment was entered setting aside the decree of dissolution and the property settlement approved by that decree and the same were declared to be null and void.

Thereafter, the husband was treated as the petitioner upon the joint petition. The wife filed an answer and a cross-bill for dissolution. Trial was had upon the issues so drawn on May 28, 1980, and June 17 1980. On December 22, 1980, a decree was entered dissolving the marriage and dealing with the financial aspects of the dissolution. By that decree the wife was awarded the 1969 Chevrolet automobile and certain household goods. It was the further judgment of the court that the husband pay to the wife $100,000 and $12,417 representing medical expenses, part payment of attorney's fees and $3,000 for accrued temporary maintenance. It was further adjudged that the husband pay to the wife as maintenance the sum of $500 per month until the husband reached the age of 65, at which time the maintenance would be reduced to $250 per month. The trial court determined the value of the marital property of the parties to total $263,350.43. Except for the Chevrolet automobile and household goods mentioned, the marital property was awarded to the husband. Both parties have appealed.

The husband contends the trial court erred in setting aside that portion of the decree of July 12, 1976, dissolving the marriage as distinguished from that portion of that decree approving the property settlement. He makes this contention as a premise for arguing that the property acquired by the husband after July 12, 1976, was improperly considered by the trial court as marital property. He cites cases recognizing the severability of those portions of the decree such as In re Marriage of Jamison, 592 S.W.2d 181 (Mo.App.1979). He argues the insufficiency of the evidence to set aside the dissolution of the marriage.

The record of that trial indicates the judgment was entered by agreement. Further, the wife's petition prayed that the decree of July 12, 1976, be set aside for fraud and other bases cognizable in equity. A new docket sheet was prepared, a new case number assigned and a summons was issued and served upon the husband. It was a separate action and so treated by the trial court. J.R. Watkins Company v. Hubbard, 343 S.W.2d 189 (Mo.App.1961). The trial court unmistakably informed the parties that it was a separate action. The judgment of December 11, 1978, in clear terms set aside the decree of dissolution. The husband did not appeal. He may not now attack that judgment. State v. Gullett, 411 S.W.2d 227 (Mo.1967); Quincy v. Quincy, 430 S.W.2d 638 (Mo.App.1968).

Two of the husband's remaining points concern a 520-acre farm that had been owned by his parents for approximately 60 years. By a deed dated April 17, 1973, the parents conveyed this farm to the husband, reserving to themselves a life estate. The trial court determined the farm was marital property. The husband asserts this was error as the evidence, admitted and improperly excluded, conclusively established the farm was a gift and by reason of § 452.330.2(1) it is not marital property.

The husband's mother, in an offer of proof, testified that she intended the husband (her son) and no one else should acquire an interest in the farm. The father had a total memory loss and did not testify. The husband, by way of an offer of proof, testified the farm was a gift. His testimony that he paid no consideration for the deed was admitted.

The definition of the term "gift" has been considered in several recent dissolution cases. In re Marriage of Null, 608 S.W.2d 568 (Mo.App.1980); Norman v. Norman, 604 S.W.2d 680 (Mo.App.1980); Hull v. Hull, 591 S.W.2d 376 (Mo.App.1979); Boyers v. Boyers, 565 S.W.2d 658 (Mo.App.1978). The question asked and answer given by the husband used "the word 'gift' as one uses it in common everyday parlance, giving the word its ordinary, accepted meaning." Matter of Estate of Mitchell, 610 S.W.2d 681, 690 (Mo.App.1980). The husband's testimony should have been admitted, Matter of Estate of Mitchell, supra, and will be considered by this court. Rule 73.01(c)(3).

Nevertheless, the evidence does not establish the trial court erred in determining the farm was marital property. This is not a case in which the wife offered no evidence to refute or contradict the husband's testimony or the inferences to be drawn therefrom and did not attack his credibility as a witness. Compare Fields v. Fields, W.D. 33004, October 19, 1982. In evaluating the testimony of the husband, the trial court could conclude that his actions and testimony presented so many incongruous assertions and evasive explanations as to render his testimony incredible. For example, in 1979, he was ordered to list his property, including real property claimed as his separate property, and a description thereof and a statement of its value. In response, he listed tangible and intangible personal property valued at $8,291.09 and stated that he would receive his parent's real estate when they were deceased. During his testimony he alternately stated his parents from time to time gave or loaned him substantial amounts of money. In this connection the evidence established the husband handled much of his financial affairs with cash. For example, in 1978 the net amount of his paychecks totaled $16,509, but he deposited only $5,205 in the bank. During his testimony he was asked to identify checks drawn upon his parent's account, which he had signed. He was unable to say if checks for $7,000, $5,000 and $8,000 were gifts or loans. On the other hand, he asserted a deposit of $1,200 was a gift because it sounded like it. He later asserted the transfer of $38,864.08 to his parents in the form of a check for $28,864.08 and $10,000.00 cash was the repayment of loans. The husband could find but few checks, bank statements, deposit slips or other financial records of his parents. Yet he did find checks to establish that certain farming expense deductions he claimed on his income tax return had been paid by checks he drew upon his parents' account. The conclusion of the trial court that the transfer of $38,864.08 was an attempt to conceal marital property was clearly supported by the evidence. It is significant that other incongruities and lapses of memory abound in the record. Stead v. State, 543 S.W.2d 501 (Mo.App.1976).

Further, the husband's testimony concerning the farm was not only that it was a gift. He was adamant in his testimony that he had no farming activities and that he had done no farm work for his parents. In attempting to explain away his frequent trips from the town in which he lived to the farm he said, "[F]or years I never touched a straw of hay or done nothing, only went to visit them." His father was physically unable to do any farm work. The record indicates this stemmed from a time somewhat before the deed in question. His mother said he came to the farm quite often and helped on anything there was to do. She added that he did market the cattle. Records indicate that he had made as many as 208 trips a year to the farm. The wife testified that he was there after work and on the weekends and that he brushhogged, fed the cattle,...