Rapp v. Rapp, 56601
| Decision Date | 10 April 1990 |
| Docket Number | No. 56601,56601 |
| Citation | 789 S.W.2d 148 |
| Parties | Richard J. RAPP, Petitioner-Appellant, v. Yvonne E. RAPP, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Ray A. Gerritzen, St. Louis, for petitioner-appellant.
Michael A. Gross, Margaret W. Fox, St. Louis, for respondent-respondent.
Husband appeals from a dissolution decree. He attacks the trial court's determinations of marital and separate property, the distribution of marital property, the trial court's failure to sustain his motion to modify a PDL order, and its failure to apportion some percentage of wife's professional college degree to husband. He further asserts that the trial judge was biased against him and should be admonished. We affirm.
This is a court-tried action. We, therefore, 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We defer to the trial court's assessment of the credibility of witnesses. Davis v. Davis, 693 S.W.2d 879, 881-882 (Mo.App.1985).
Husband and wife married June 15, 1981. No children were born of the marriage, although both parties have children from previous marriages. Wife completed her college education after the parties' marriage and immediately began working as a teacher for learning disabled children. Husband was self-employed throughout the marriage.
The trial court determined that husband had separate property totalling $90,106.31. The marital property was distributed as follows:
Husband
$21,332.35 (proceeds from House on Cross Timbers)
18,000.00 (IRAs)
25,000.00 (horse named Freds Dellfene)
9,000.00 (1987 Oldsmobile Regency)
4,291.93 (checking account)
----------
$77,624.28
Wife
$70,000.00 (proceeds from House on Cross Timbers)
483.33 (checking account)
638.98 (Safeco--unused homeowners' insurance)
3,785.10 (Teachers Association Account)
7,000.00 (insurance proceeds on jeep)
----------
$81,907.41
(500.00) (1988 Plymouth Horizon having a value of $6,300.00 and subject to a
note in the amount of $6,800.00)
----------
$81,407.41
Husband raises six points on appeal. They are: 1) that the trial court erred, under the source of funds rule, in determining the house at 14303 Cross Timbers and the IRA accounts were marital property; 2) that the trial court erred in failing to sustain husband's motion to modify the PDL order of August 20, 1987; 3) that the trial court erred in its distribution of what it determined was marital property; 4) that the trial court erred in failing to apportion wife's professional college degree; 5) that the trial judge allowed the case to become personal when another circuit court judge, Judge O'Brien, testified on wife's behalf; and 6) the trial judge failed to allow proper cross-examination of Judge O'Brien.
In his first point, husband complains that the trial court erred in failing to consider the source of funds rule when it determined what property was marital. Specifically, husband argues that the condominium, known as Cross Timbers, was his separate property because it was purchased by R.J. Rapp Investment Co. Husband also argues that the IRA accounts were funded solely by money from a $50,000 bequest from husband's deceased father.
A trial court possesses broad discretion in identifying marital property. In re Marriage of Wild, 774 S.W.2d 543, 545 (Mo.App.1989). All property acquired by either spouse subsequent to the marriage is presumed to be marital property regardless of how title is held. Harry v. Harry, 745 S.W.2d 824, 825-826 (Mo.App.1988). A party claiming that property, presumed marital, is in fact separate must assume the burden of rebutting the presumption by clear and convincing evidence. Id. at 826. A spouse may by agreement, either express or implied, or by gift, convert an item of separate property into marital property. Kramer v. Kramer, 709 S.W.2d 157, 159 (Mo.App.1986).
Husband testified that one of his businesses, R.J. Rapp Investment Co., purchased the condominium at 14303 Cross Timbers Court. The evidence shows that husband and R.J. Rapp Investment Co. signed the contract for sale. At the closing, however, the deed was signed by and issued to "Richard J. Rapp and Yvonne E. Rapp, his wife." Wife also signed, and became liable on, the promissory note and deed of trust.
Husband argues that he never intended for his wife's name to be placed on the title to the property and that the source of funds to purchase the condominium came entirely from his separate property. There was testimony that the bank ordered the title and placed wife's name on it because they required her name on the loan documentation.
This is not enough to overcome the presumption that Cross Timbers was marital property. Husband signed all the documents even though they did not reflect his intention. He never expressed, by formal agreement or otherwise, that the documents did not reflect his wishes until he testified at trial. Wife testified that the purchase was a mutual decision and that they decorated the home together. As stated, supra, the trial court is accorded much deference in determining the credibility of witnesses. Davis, 693 S.W.2d at 881-882.
Based on the evidence and testimony at trial, husband has failed to prove the condominium was his separate property. If it ever was separate, it was impliedly transmuted into marital property. Nothing in the source of funds rule prevents the transmutation of an item of separate property into marital property. Kramer, 709 S.W.2d at 159.
Husband also complains that the trial court erred in determining that the IRA accounts worth $18,000.00 were marital property. Evidence regarding the IRA accounts was, at best, confusing. Husband testified that the IRAs were purchased, for the most part, with funds from R.J. Rapp Investment Co. Wife testified that the IRAs were purchased with the proceeds from joint income tax refunds.
The only documentary evidence we are referred to is Exhibit 25, a checkbook from Colonial Bank, and a chart prepared by husband's accountant. Husband argues that he deposited a $50,000.00 bequest from his father in the Colonial Bank account. Check No. 1352, written April 1, 1983, should be the next transaction and was the 1983 IRA contribution. He concludes that since the money for the contribution came from his father's bequest to him, it is his separate property. Exhibit 25, however, begins with check no. 1572 written on December 24, 1984. It is not the function of the appellate court to sift through material furnished by the parties on appeal to find that which is relevant. Hill v. Air Shields, Inc., 721 S.W.2d 112, 116 (Mo.App.1986). Nevertheless, we did review the exhibits filed but were unable to find any evidence regarding this transaction.
The chart prepared by husband's accountant indicates the IRA contributions came out of the Colonial Bank account. It does not indicate every source of funds that went into that account. The money might have been husband's separate property, it also might have come from joint tax return refunds.
The only clear evidence before the trial court was the testimony of the parties and we accord the trial court deference in this area. Davis, 693 S.W.2d at 881-882. We deny Point I in its entirety.
Husband's second point states that the trial court erred in failing to make a retroactive modification of the PDL order for maintenance. He argues that the $250.00 per month awarded to wife should have been eliminated as of March 21, 1988 and his payments refunded to him because he has been unemployed...
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