Roche v. Roche
| Decision Date | 12 May 2009 |
| Docket Number | No. ED 91294.,ED 91294. |
| Citation | 289 S.W.3d 747 |
| Parties | Richard J. ROCHE, Appellant, v. Donna J. ROCHE, Respondent. |
| Court | Missouri Court of Appeals |
Alan E. Freed, Paule, Camazine & Blumenthal, P.C., St. Louis, MO, for Appellant.
Nathan S. Cohen, Law Office of Nathan S. Cohen, St. Louis, MO, for Respondent.
Richard Roche (Husband) appeals from the trial court's Judgment of Dissolution of Marriage (Judgment) dissolving his marriage with Donna Roche (Wife), dividing the marital and non-marital property, awarding Wife maintenance, and awarding Wife attorney fees. We affirm in part and reverse and remand in part with instructions.
Husband and Wife were married on August 16, 2003, in St. Louis County. No children were born of the marriage. They separated on August 8, 2007.
Nearly four years after the marriage, on July 18, 2007, Husband filed his Petition for Dissolution of Marriage seeking a dissolution of the marriage and an equitable division of the marital property and debts. Wife then filed an Answer to Petitioner's Petition for Dissolution of Marriage and a Counter Petition for Legal Separation.
Prior to trial, Wife filed a Motion for Appointment of a Guardian ad Litem on November 29, 2007.1 Wife sought appointment of a guardian ad litem for Husband because he allegedly was not competent or able to manage his own affairs, nor capable of making decisions in his best interest. Wife also alleged in her motion that Husband was incompetent to make decisions concerning the distribution of marital assets and/or division of marital property. Attached to her motion were four exhibits containing medical records and letters from physicians attesting to Husband's lack of competency. The trial court denied Wife's motion on December 3, 2007.
The trial court then heard the dissolution proceeding on December 17, 2007. At trial, Husband testified and also presented testimony from his daughter, Colleen Roche, and William Connors, Husband's friend and financial advisor. Wife testified on her own behalf. The parties both presented a variety of exhibits, most of which were not included in the Legal File for our review. However, the Legal File does contain a portion of the evidence presented at trial regarding a trust created by Husband and the marital residence.
Husband presented evidence that in October 1997, he purchased property located at 2540 Wallford Walk (the Residence). Shortly thereafter, in November 1997, Husband transferred the Residence via quit claim deed to the Revocable Living Trust of Richard J. Roche (Trust). Husband also presented evidence of a quit claim deed, filed in January 2005, listing both "Richard J. Roche and Donna J. Lee, now known as Donna J. Roche" as "Grantors" and "Richard J. Roche and Donna J. Roche as tenants by the entirety," as the "Grantees." Wife later presented evidence of a quit claim deed regarding the Residence that had been filed in June of 2002, prior to her marriage to Husband. The quit claim deed identified "Richard J. Roche" as "Grantor" and "Richard J. Roche and Donna J. Lee as joint tenants with rights of survivorship" as the "Grantees."
During trial, the trial court also admitted into evidence as an exhibit several Trust documents. The first part of the exhibit was a document creating the Trust in December 1998 and naming Husband as both Grantor and Trustee. The Trust transferred from the Grantor to the Trustee (both Husband), a variety of property including the Residence. The Trust also listed Wife as a beneficiary of $30,000, provided the two were still living together at the time of Husband's death. An amendment to the Trust was filed in July 2002, naming Wife as Successor Trustee. A second amendment was filed in March 2003, granting fifty percent of the proceeds of Husband's estate to Wife and again naming Wife as Successor Trustee. A third amendment in January 2005 granted the remainder of Husband's estate to Wife, and retained her as Successor Trustee. A fourth amendment, filed in October 2007, removed Wife as a Trust beneficiary and trustee.
The Trust document granted the parties to the Trust a number of rights, obligations, and responsibilities. In particular, the Trust granted the Trustee the right to "sell ..., convert, reconvert, convey, assign, transfer, exchange or otherwise dispose of any property held by the Trustee in Trust hereunder." The Trust also retained a right to revoke for the Grantor, stating in part:
The Grantor may at any time or from time to time by written request, delivered to the Trustee, withdraw all or such part of the principal of the Trust Estate as the Grantor may designate and upon receipt of such request, the Trustee shall transfer and deliver to the Grantor or to the Grantor's order, free of Trust, such portion or portions of the principal of the Trust Estate as Grantor may request.
At trial Wife renewed her motion to appoint a guardian ad litem for Husband, stating during Husband's testimony:
Husband's Counsel: Judge, I think [Husband's] testimony was that he approved of it. He does—he does [have] memory deficits, there's no question about that, but I—I don't see the need for a guardian ad litem to look after his interest. He seems to know what his own interests are. He—he does have specific memory deficits.
The trial court then denied Wife's renewed motion.
After considering the record, the testimony, the evidence, and the proposed distribution of marital property filed by each party, the trial court entered its Judgment on February 4, 2008. The trial court found that in March 2002, while the parties were dating, Husband suffered a debilitating stroke. The stroke caused Wife to leave her employment as a cosmetologist to help Husband with his recovery, and also necessitated Husband's retirement from the St. Louis County Sheriff's Department. The trial court found that Husband resided in a Senior Retirement Community, while Wife continued to reside in the Residence. Further, Husband's gross income in 2006 was approximately $60,000, while Wife had no income that year. In its Judgment, the trial court made the following findings regarding the parties' property.
The trial court found that Husband purchased the Residence in 1997, though he subsequently deeded the Residence to the Trust. The trial court also found that in 1998 Husband amended the Trust to make Wife the beneficiary of the Residence at his death.2 Husband recorded deeds on the Residence in 2002 and 2005. The 2002 deed added Wife's name as a joint tenant prior to her marriage to Husband. The 2005 deed identified both parties as owners of the Residence after the marriage as tenants by the entirety. The trial court found the Residence was a gift to the marriage and thus was deemed marital property.3 The trial court awarded the Residence to Wife, and also adjudged Wife responsible for the outstanding debt on the Residence as of February 15, 2008.
The trial court ordered Husband to pay Wife $1000 per month for periodic maintenance beginning February 15, 2008, subject to modification. The trial court found that while Wife was trained as a cosmetologist, she was unemployed as of the trial and testified that she suffered from arthritis and depression. No medical evidence was presented at trial that either condition prevented Wife from obtaining employment. The trial court further found that although Wife was capable of working and becoming self sufficient, she was not working at that time, and maintenance was required to meet some of her reasonable needs.
In addition to Husband's Trust, the trial court also found Husband had several pre-marital investment accounts in his name. The trial court concluded that it was unclear which accounts had increased during the marriage as a result of dividend reinvestment or the result of market forces, but found the value of the increase in the accounts to be $95,428. The trial court awarded both the Trust and the investment accounts, including the increase in value since the date of the marriage, to Husband.
The trial court awarded the parties' 2005 Buick LaCrosse to Wife and ordered her to pay Husband $7000 for his share of the vehicle.
After the trial court entered its Judgment, Wife filed a Motion for a New Trial or in the Alternative to Amend Judgment and Reopen the Record for Additional Evidence. Husband filed a Motion to Amend Judgment along with a Motion to Vacate Judgment, Motion for New Trial, and Motion to Appoint Guardian ad Litem or Next Friend for the Petitioner, and Motion to Introduce Additional Evidence at Trial. A hearing was held on the parties' motions on April 17, 2008, after which the trial court denied all of the motions filed by both Husband and Wife
Husband filed his timely Notice of Appeal on April 25, 2008. This appeal follows.
Husband presents five points on appeal. In his first point, Husband alleges the trial...
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