Stratman v. Stratman, WD

• Citation: 948 S.W.2d 230
• Decision Date: 30 June 1997
• Docket Number: No. WD,WD
• Parties: Judy M. STRATMAN, Respondent, v. Harold B. STRATMAN, Appellant. 51709.
• Court: Missouri Court of Appeals

Page 230

948 S.W.2d 230

Judy M. STRATMAN, Respondent, v. Harold B. STRATMAN, Appellant.

No. WD 51709.

Missouri Court of Appeals Western District.

June 30, 1997.

Reginald H. Turnbull, Riner & Turnbull, Jefferson City, for appellant.

Michael P. Riley, Carson & Coil, Jefferson City, for respondent.

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

BRECKENRIDGE, Judge.

Harold B. Stratman (Husband) appeals from the trial court's judgment dissolving his marriage to Judy M. Stratman (Wife). Husband contends that the trial court erred by: (1) including as marital property certain real estate acquired by Husband after the effective date of the parties' dissolution; (2) using debts incurred by Wife after the effective date of the parties' dissolution as an offset against Wife's assets before equalizing the property division; (3) offsetting Wife's attorney fees incurred in the parties' original dissolution hearing; (4) awarding the value of certain personal property to Husband because that property was not wanted by Husband, two guns were nonmarital property, and one gun was a gift; (5) failing to include in the marital property division a certificate of deposit; and (6) not recognizing Husband's nonmarital contribution of $26,762 to the value of the marital residence.

The judgment dividing the marital property is affirmed in part and reversed in part. Under Rule 84.14, this court enters the judgment which the trial court should have entered.

Husband and Wife were married on February 14, 1977. The parties lived together in Freeburg, Missouri. Wife had three children from a previous marriage: Joseph Luebbert, James Luebbert, and Jennifer Luebbert. One child was born of the marriage on December 17, 1977, Harold B. Stratman, Jr. During the marriage, Husband owned and operated his own business as an electrician, while Wife cleaned houses, babysat, and assisted Husband with the bookkeeping aspects of his business.

On April 21, 1994, Wife filed her Petition for Dissolution of Marriage in the Circuit Court of Osage County. Husband admitted in his answer that the marriage was irretrievably broken and filed a Counter-Petition for Dissolution of Marriage. On August 3, 1994, the trial court heard the cause and entered its Decree of Dissolution purporting to dispose of the entire case. The court's order dissolved the parties' marriage and made further orders regarding child custody, support, and visitation, and the division of property and debts. The court did not award maintenance or attorney fees to either party.

Thereafter, Wife filed a motion for a new trial, alleging that the "division of marital and non-marital property [was] against the weight of the evidence and not supported by the evidence." The division of property was the only portion of the decree challenged by Wife in her motion. Wife requested the trial court to set aside the division of property and reallocate the parties' separate and marital property. The trial court sustained Wife's motion for a new trial with the division of property as the sole issue to be relitigated. The trial judge who presided over the initial hearing recused himself, a new judge was assigned, and venue was subsequently changed to Cole County.

On August 11, 1995, nearly a year after the date of the initial decree of dissolution, the issue of the division of property was reheard in the Circuit Court of Cole County. The parties stipulated on the record at the beginning of the hearing that "the original dissolution has gone through with the exception of property division." Husband and Wife offered evidence of marital and separate property, and each submitted a proposed division of the property.

On September 7, 1995, the trial court entered its Final Judgment Entry and Order. In this order, the trial court recognized that the parties' marriage was dissolved as of August 3, 1994. It then entered orders dividing the parties' property "based on its finding that each party should share as equally as possible in the marital property." The judgment incorporated Wife's Exhibit 1 by reference, which set forth her proposed division of property. The court modified the proposed property division in Wife's Exhibit 1 to conform to the parties' testimony and attached the modified exhibit to the judgment. The court found that this exhibit, as "supplemented and modified by other evidence, recapitulates [the parties'] assets and obligations with reasonable accuracy."

The decree set off to Wife, as her separate nonmarital property, the parties' residence which had been acquired by her prior to the marriage. Husband was awarded certain real property in Freeburg, Missouri, which he purchased in September, 1994, about a month after the initial decree of dissolution. Various items of personal property were divided between the parties according to Wife's Exhibit 1, including several certificates of deposit jointly held by the parties and their children, life insurance policies, securities and other investments. The court included as marital property Husband's "pre 8/3/94 unreported receivables" from his electrician business and the marital funds expended to clear title to Wife's separate property. Husband filed a timely appeal to this court.

On appeal, this court affirms the trial court's decree of dissolution if it is "supported by substantial evidence, is not against the weight of the evidence, and neither erroneously declares nor applies the law." Hutcherson v. Hutcherson, 909 S.W.2d 403, 404 (Mo.App.1995). This court accepts the evidence and inferences therefrom most favorable to the trial court's decree and disregards all contrary evidence. Id. The trial court has substantial discretion in dividing marital property and this court will not interfere unless the division is so heavily weighted in favor of one party as to amount to an abuse of discretion. Id. at 406.

In his first point, Husband claims that the trial court erred in including as marital property Husband's real estate in Freeburg, Missouri, which was purchased after the date the court dissolved the marriage of the parties. Husband argues that property acquired after the decree of dissolution was entered is not marital property subject to division under § 452.330, RSMo 1994. ¹ Husband claims that this erroneous inclusion of his separate property prejudiced him because the court ordered him to pay additional cash to Wife to equalize the property division.

In a proceeding for division of property, the trial court is required to make an equitable division of the parties' marital property after considering all relevant factors. Section 452.330.1; Hernandez v. Hernandez, 872 S.W.2d 161, 166 (Mo.App.1994). Subsection three of § 452.330 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...." Section 452.330.3 creates the presumption that property aquired during the marriage is marital property. Hanson v. Hanson, 738 S.W.2d 429, 433 (Mo. banc 1987). "Conversely, property acquired prior to the marriage or after the entry of decree of legal separation or dissolution is not marital property." Id.

Here, the trial court dissolved Husband and Wife's marriage on August 3, 1993. Thereafter, the trial court sustained Wife's motion for a new trial on the sole issue of the division of property. Section 452.360 defines a final order in the dissolution context:

1. A decree of dissolution of marriage or of legal separation is final when entered, subject to the right of appeal. An appeal from a decree of dissolution that does not challenge the finding that the marriage is irretrievably broken does not delay the finality of that provision of the decree which dissolves the marriage beyond the time for appealing from that provision, so that either of the parties may remarry pending appeal.

Since the order for a new trial did not include the issue of the dissolution of the parties' marriage and neither party appealed the order dissolving the marriage, the trial court's order dissolving the parties' marriage was final on September 12, 1994.

If the general rule, as stated in § 452.360.1, controls, any property acquired by either Husband or Wife after September 12, 1994 would be that party's separate, non-marital property. However, the term "acquired," within the context of § 452.330 for determining whether property is marital for distribution purposes, cannot be read alone. Hoffmann v. Hoffmann, 676 S.W.2d 817, 824-25 (Mo. banc 1984). It should be interpreted in accordance with the "source of funds" rule whereby "the character of the property is determined by the source of funds financing the purchase," and the property is considered to be acquired as it is paid for. Id. Thus, if marital property is the source of funds for the purchase of property after the date a decree of dissolution is entered, the property retains its character as marital property. A party cannot unilaterally convert marital property which has not been divided in a dissolution proceeding into separate property by simply changing its form. Finally, in dividing the marital property, the trial court must consider the property's value as of the date of the hearing for the division of property. Taylor v. Taylor, 736 S.W.2d 388, 391 (Mo. banc 1987); In re Marriage of Gustin, 861 S.W.2d 639, 643 (Mo.App.1993).

The source of the $7,500 Husband used to purchase the Freeburg real estate was the subject of testimony at trial. The real estate was purchased less than a month after the decree of dissolution was entered. Husband testified that he paid for the property by two checks written at different times. One check for $2,500 was written on September 5, 1994. According to Husband, the money used to pay for the real estate was business income from bills that had been sent out after August 3, 1994. When asked if he earned $7,500 per month in his business,...