Preston v. Preston

• Decision Date: 28 April 2006
• Docket Number: No. WD 65093.,WD 65093.
• Citation: 189 S.W.3d 685
• Parties: Mary PRESTON, Respondent, v. Dallas PRESTON, Appellant.
• Court: Missouri Court of Appeals

189 S.W.3d 685

Mary PRESTON, Respondent, v. Dallas PRESTON, Appellant.

No. WD 65093.

Missouri Court of Appeals, Western District.

April 28, 2006.

James T. Holcomb, Trenton, MO, for appellant.

Allan B. Turner, Chillicothe, MO, for respondent.

Before ULRICH, P.J., BRECKENRIDGE and SMART, JJ.

PATRICIA BRECKENRIDGE, Judge.

Dallas Preston (Husband) appeals the Amended Judgment and Decree of Dissolution entered in the dissolution proceedings between him and his wife, Mary Preston (Wife). Husband raises three claims of error on appeal. First, Husband asserts the trial court erred in equally dividing $10,000 in insurance proceeds between him and Wife. Second, Husband claims the trial court erred in determining that a motor home was marital property. Finally, Husband contends the trial court erred in failing to declare as marital property two bank accounts set over to the parties' minor son, Dalton. This court finds no error in the portion of the trial court's judgment equally dividing the insurance proceeds or the provisions of the trial court's judgment finding Husband's motor home to be marital property. This court finds, however, that the record is insufficient to determine the proper nature of the bank accounts set over to Dalton. Consequently, those provisions are reversed, and the case is remanded to the trial court to hear additional evidence concerning the accounts and to make a proper disposition of the accounts. The trial court's judgment is affirmed in all other respects.

Factual and Procedural Background

Husband and Wife were married on May 27, 1989. There was one child of the marriage, Dalton James Preston, born May 10, 1993. On approximately October 25, 2002, the parties separated and Wife filed a petition for dissolution. When Wife left the marital home, she took items of personal property with her.

On approximately May 11, 2003, while Husband was still living in the marital home, a fire destroyed the home and most of its contents. An insurance policy on the home provided $80,000 to cover the loss. Of the $80,000 in insurance proceeds, $70,000 was paid for the loss of the residence and $10,000 was paid for the loss of the contents of the house.¹ About a month after the fire, Husband purchased a motor home for $54,900, which he used as a temporary residence. Husband paid cash for the motor home. Of the cash paid, $20,000 was a loan from his parents and the remainder, $34,900, was withdrawn from a bank account at Citizen's Bank of Princeton.

On June 16, 2003, the trial court heard evidence on Wife's prayer for dissolution of the parties' marriage. At the conclusion of the hearing, the court entered an interlocutory order dissolving the marriage of the parties. Thereafter, Ms. Preston married Steven Tracy.² The other issues raised by the dissolution petition were tried on May 24, 2004. At that trial, among other issues, the parties disagreed as to the nature of the insurance proceeds for the personal property loss and the motor home. Husband claimed that all but $300 of the insurance proceeds for the loss of personal property was his separate property. He also claimed the motor home as his separate, nonmarital property. Wife claimed that these items of property were marital. In addition to these items of property, the parties did not agree as to the disposition of two bank accounts at the Citizen's Bank & Trust Company of Chillicothe, one valued at $5059 and the other at $11,423, which were in the names of Wife and the parties' son, Dalton. Husband requested that the trial court award the $5059 account to Wife and the $11,423 account to him. Wife did not include these accounts in her exhibit with her proposed division of property.

The trial court initially entered its Judgment and Decree of Dissolution on November 8, 2004. Both parties filed a motion for a new trial or, in the alternative, to amend or correct the judgment. After hearing these motions, the trial court entered an Amended Judgment and Decree of Dissolution on February 7, 2005. In that judgment, the trial court found that the insurance proceeds for the loss of personal property were marital property and awarded each party $5,000, one-half of the proceeds. The court also found that the entirety of the motor home was marital property and awarded it to Husband. The court further ordered that the two accounts in the names of Wife and Dalton be set off to Dalton as his property. Husband appeals from that judgment.

Standard of Review

As a court-tried case, the applicable standard of review, here, is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Hilligardt-Bacich v. Bacich, 174 S.W.3d 11, 14 (Mo.App. E.D. 2005). Accordingly, this court will affirm the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32. This court will "view the evidence and the inferences therefrom in the light most favorable to the judgment and disregard all contrary evidence." Bacich, 174 S.W.3d at 14. "The trial court is permitted great flexibility in its division of marital property" and "is free to believe or disbelieve all, part, or none of the testimony given by any of the witnesses." Thill v. Thill, 26 S.W.3d 199, 203 (Mo.App. W.D.2000). Neither Husband, nor Wife, requested findings of fact or conclusions of law. Consequently, in accordance with Rule 73.01(c), "[a]ll fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached."

No Error in Dividing Insurance Proceeds

In his first point on appeal, Husband claims the trial court erred in equally dividing the $10,000 in insurance proceeds for the parties' personal property that was destroyed in the fire. Husband claims the trial court did not properly apply section 452.330, RSMo 2000,³ and should have awarded him all but $300 of the insurance proceeds because the value of Wife's marital property destroyed by the fire was less than $300. Husband asserts that the fire occurred nine months after Wife had moved out of the house and, at the time of the fire, she had already removed "a substantial amount of her non-marital assets as well as marital assets" from the house.

Section 452.330.3 provides that "[a]ll property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation or dissolution of marriage is presumed to be marital property. . . [, unless t]he presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection 2 of this section."⁴ The insurance proceeds for the loss of personal property were acquired by the parties during the marriage. Therefore, the proceeds are presumed to be marital property, and Husband has the burden of rebutting that presumption. Hoberock v. Hoberock, 164 S.W.3d 26, 30 (Mo.App. E.D.2005).

Husband presented no evidence that the insurance proceeds were not marital property because they were acquired by a method listed in subsection 2 of section 452.330.2. In particular, Husband did not present evidence that the insurance proceeds were received "in exchange" for property he acquired prior to the marriage or property he acquired subsequent to the marriage by gift, bequest, devise, or descent. Section 452.330.2(2). He instead argues, on appeal, that Wife failed to present sufficient evidence to show that the personal property destroyed was her nonmarital property or marital personal property that she claimed she wanted in the dissolution. Husband's assertion appears to be based upon a mistaken belief that when the parties physically divided the personal property at the time they separated, the property Wife took with her became her property and the property Husband had in his possession became his property, or possibly that their oral agreement as to who would have the personal property was binding on the parties and the court. Under either theory, when the parties physically divided the personal property at the time of separation, it did not become nonmarital property. Without a "valid written agreement" of the parties to make the items of personal property nonmarital, as required by section 452.330.2(4), it retained its character as marital property. It was merely marital property in the possession of one spouse or the other. Therefore, the personal property destroyed in the fire remained marital property, as did the insurance proceeds payable upon its loss.

Husband has not overcome the presumption that the insurance proceeds were marital property. Hoberock, 164 S.W.3d at 30. The trial court has broad discretion in dividing marital property, Travis v. Travis, 163 S.W.3d 43, 46 (Mo.App. W.D.2005), and it did not abuse its discretion in dividing the insurance proceeds on the personal property so that each party received one-half or $5,000. Husband's first point is denied.

No Error in Finding Motor Home Marital Property

In his second point on appeal, Husband claims the trial court erred in "declaring the entire value of the motor home as marital property." In its judgment, the trial court found that the motor home was marital property valued at $54,900, awarded the motor home to Husband, and ordered him to pay the indebtedness on it of $20,000 to his parents. As a result, equity of $34,900 in the motor home was included in the value of the marital property awarded to Husband, which was used to calculate the cash judgment awarded to Wife to equalize the division of marital property. Husband claims that the trial court's determination that the motor home was marital property is a misapplication of section 452.330, because the cash used to purchase the motor home came from a $20,000 loan from his parents and $34,900 from funds that were gifts from his parents.

Again, under section 452.330.3, "[a]ll property acquired by either spouse subsequent to the marriage and...