Nedblake v. Nedblake
| Decision Date | 11 December 1984 |
| Docket Number | No. WD,WD |
| Citation | 682 S.W.2d 852 |
| Parties | Greydon Wesley NEDBLAKE, Petitioner/Respondent, v. Orchid Lee NEDBLAKE, Respondent/Appellant. 34517. |
| Court | Missouri Court of Appeals |
Robert C. Paden, Independence, for respondent-appellant.
Michael H. Maher, Kansas City, for petitioner-respondent.
Before KENNEDY, P.J., and NUGENT and BERREY, JJ.
Orchid Lee Nedblake (wife) and Greydon Wesley Nedblake (husband) were married on July 10, 1979, and the marriage was dissolved on December 10, 1982, following a final separation which began on September 1, 1981. Both parties concede the marriage was "rocky" and they separated numerous times during the two years. The wife appeals the trial court's distribution of property upon dissolution. Setting forth the complaints each had against the other would serve no purpose in this case. The judgment is affirmed as modified.
On their wedding day, the couple entered into an "Antenuptual Agreement" which set out the properties owned by each before the marriage. The wife owned four houses in Kansas City, Missouri, which she subsequently sold, and certain tangible personal property. The husband held a "substantial ownership interest" in Package Service Company, Inc., and an assortment of realties. The agreement provided that upon dissolution, the parties would "take her or his property and half of any property acquired by them subsequent to such marriage in lieu of" any alimony or maintenance claim. (Emphasis added.)
The wife challenges the dissolution decree by first contending that the trial judge misapplied the law regarding antenuptial agreements by awarding to the husband marital property valued at $715,553 and awarding to her marital property valued at $29,407. Second, and in the alternative, she contends that after considering the factors set forth in § 452.330.1, RSMo the court erroneously awarded her substantially less property than her husband.
The wife is not alleging that the agreement itself is invalid but she is alleging that the court did not abide by its terms and order an equal division of all marital property. Due to the parties conceding the validity of the agreement, a discussion of the second contention is unnecessary. Antenuptial agreements will be upheld and will dispose of the issues of division unless found to be unconscionable. Ferry v. Ferry, 586 S.W.2d 782 (Mo.App.1979).
The tenor of this case is best illustrated by setting forth both parties' impressions of the court's well drawn and exhaustive decree. The wife alleges that the following schedule is a correct representation of the court's distribution of the marital assets.
Husband Wife
-------- -------
a) Household furnishings
and personal belongings $ 6,896 $ 7,157
b) Ford Mustang automobiles 22,250 5,750
c) Real property 37,500 16,500
d) Stock in Package
Service Company 648,907 -0-
-----------------
Total $715,553 $29,407
Note that in the husband's schedule concerning marital assets, he does not include the interest in the Package Service Company. Nor does he recognize the award for automobiles. Also, there is a difference of opinion as to how the "Jeff Nedblake loan" affects the real property figures.
Husband Wife
-------- -------
a) Household furnishings
and personal belongings $ 7,126 $ 7,157
b) Automobiles -0- 750
c) Cash in lieu of accounting
for auto disposed of -0- 5,000
d) Marital home 10,500 10,500
e) 8233 N. Oak (4,000
marital equity) 2,000 2,000
f) Gladstone acreage
(no net marital interest) -0- -0-
g) Jeff Nedblake loan
(wife's interest) -0- 4,000
-------- -------
Total $ 19,626 $29,407
It is readily apparent that the most highly contested aspect of the court's decree is the setting aside to the husband the forty-one percent interest, worth, according to the trial court, $648,907 in Package Service Company, Inc., acquired during the marriage, as his sole and separate property. The events leading to the acquisition of the interest are set forth as follows.
Package Service Company, Inc., is a corporation which was formed in 1939 by the husband's father, mother, and another family, and has been solely operated by the husband's family since 1950. At the time of the marriage the husband held a twenty-nine percent interest in the corporation and had served as president for six to eight years.
On January 18, 1981, approximately eight months before the parties' final separation, he acquired an additional forty-one percent interest in the corporation from his mother and stepfather by agreeing to pay $100,000 to his mother and $66,000 to his stepfather. His son, Jeff Nedblake, acquired stock in the same manner. The transaction occurred strictly between the husband, his son, his mother and his stepfather. For the first five years he was to pay only the interest of $1,200 per month.
The wife contends the agreement clearly mandates an equal division of all property acquired during the marriage, regardless of which party acquired the property, and because the trial court designated the forty-one per cent interest in the corporation as marital, it had no option but to divide the interest equally. It is true that the court initially referred to the interest as marital by stating, "The Court finds that the Respondent made no contribution to the acquisition of this marital property ...." (Emphasis added.) However, it continued in stating, "The Court also notes that the Antenuptial Agreement ... indicates that the Petitioner had a 'substantial ownership interest' in Package Service Company, Inc., and the Court finds that any interest in the corporation acquired by the petitioner subsequent to the marriage is excluded by valid agreement of the parties." It is apparent the trial court did not look upon the agreement as being clear and unequivocal, nor does this court. Under § 452.330.2, RSMo Supp.1984, a finding that property is excluded by valid agreement renders the property separate by rebutting the presumption that property acquired by either party after the marriage is marital property.
Consequently the question for this court is not whether the trial court...
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