Williams v. Williams

• Decision Date: 24 March 1998
• Docket Number: No. WD,WD
• Citation: Williams v. Williams, 965 S.W.2d 451 (Mo. App. 1998)
• Parties: Antonio M. WILLIAMS, Appellant, v. Sherry L. WILLIAMS, Respondent, Guardian ad Litem, Respondent. 53397.
• Court: Missouri Court of Appeals

Page 451

965 S.W.2d 451

Antonio M. WILLIAMS, Appellant, v. Sherry L. WILLIAMS, Respondent Guardian ad Litem, Respondent.

No. WD 53397.

Missouri Court of Appeals Western District.

March 24, 1998.

Jeffrey S. Bay, Van Osdol, Magruder, Erickson, Redmond, Kansas City, for appellant.

Lorie N. Savin, Kansas City, for respondent.

Jill M. Katz, Stinson, Mag & Fizzell, Kansas City, Guardian ad Litem.

Before HOWARD, P.J., and BRECKENRIDGE and HANNA, JJ.

BRECKENRIDGE, Judge.

Antonio Williams (Husband) appeals from the trial court's order dissolving his marriage to Sherry Williams (Wife). Husband raises three points of error on appeal. First, he contends that the trial court erred by finding that the parties' residence was marital property because Husband's premarital and separate assets were used to provide the down payment and pay off the mortgage on this property. As his second point, Husband claims that even if the trial court correctly classified the home as marital property, the trial court erred in awarding it to Wife because this resulted in an inequitable distribution of the marital property since the home constituted approximately 90% of the marital assets. Finally, Husband contends that the trial court erred by denying him visitation rights with the parties' minor children because there was no evidence that Husband ever abused these children.

The judgment of the trial court is affirmed.

Factual and Procedural Background

In the light most favorable to the trial court's judgment, the facts are that Husband and Wife were married on April 22, 1988. The parties lived together in Kansas City, Missouri. Wife had two children from a previous marriage: Terry Anthony and Brandy Anthony, both of whom lived with the parties. Two children were born to Husband and Wife prior to their marriage: Maurice A. Williams, born June 16, 1983, and Martinus D. Williams, born September 19, 1986. During the marriage, Husband rehabilitated homes for a living. Since a car accident in December 1988, Husband has been disabled and has received SSI benefits. Although Wife worked full-time during the first years of the marriage, during the latter part of the marriage she worked sporadically or on a part-time basis.

During the parties' marriage, Husband and Wife resided in a home located at 10829 Fremont in Kansas City, Missouri. Both Husband and Wife valued the Fremont residence at $67,000. When the parties acquired the house in 1988, they used the proceeds from the sale of Husband's car and the sale of Wife's jewelry in order to make the down payment. The Fremont residence was titled in both parties' names. Husband and Wife paid off a small portion of the mortgage on the house through Wife's earnings. However, the bulk of the mortgage was satisfied with the proceeds from the sale of a rehabilitated house.

The parties separated on February 1, 1994. On January 4, 1995, Husband filed his Petition for Dissolution of Marriage in the Circuit Court of Jackson County. In his petition, Husband requested joint legal custody of the two children and a fair and equitable distribution of the marital property. Wife admitted in her answer that the marriage was irretrievably broken and filed a Cross-Petition for Dissolution of Marriage. In her cross-petition, Wife also requested the trial court to equitably divide the marital property. In addition, Wife requested the trial court to grant her sole custody of the parties' children and deny Husband visitation rights with the parties' children.

At the hearing on the matter, Husband and Wife both presented evidence. Wife testified that Husband physically abused her on numerous occasions, causing her to leave the home several times. There was also evidence that Husband punched Wife's son, Terry Anthony, in the face for tracking mud in the house. The blows broke Terry Anthony's jaw and it had to be wired shut for six weeks. As a result, Husband was charged with and pleaded guilty to assault in the first degree. As a condition of the probation ensuing from his guilty plea, Husband was prohibited from seeing Wife, his own two children and Wife's two children during the four-year term of probation.

After taking the matter under advisement, the trial court entered an order dissolving the parties' marriage. In its order, the trial court determined that the Fremont residence was marital property and awarded it in its entirety to Wife. The court also set off each party's separate property to its owner and assigned certain debts to each party. In addition, the trial court awarded each party an automobile and one bank account and divided furniture, appliances and miscellaneous household items between the parties. Because of Husband's abusive behavior, the court determined that it could not fashion a visitation plan which would guarantee the safety of the children and Wife. Therefore, the trial court awarded Wife full custody of Maurice and Martinus and denied Husband any "visitation or contact with the minor children until further order of the Court." Finally, the trial court held that since Husband was unable to contribute to the children's support, he owed no child support to Wife. Husband filed a timely appeal in this court.

Standard of Review

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." Stratman v. Stratman, 948 S.W.2d 230, 233 (Mo.App.1997) (quoting 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. Stratman, 948 S.W.2d at 233. 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.

Points on Appeal

Point I--Classification of Fremont Residence as Marital Property

As his first point on appeal, Husband contends that the trial court erred in classifying the Fremont residence as marital property. Husband premises his argument on the "source of funds" rule. Husband argues that because the funds used to provide the down payment and pay off the mortgage on the Fremont residence were his separate property, the trial court should have awarded him the real estate based on the source of funds rule. Husband asserts that the $10,000 down payment as well as "all but a very few monthly mortgage payments" came from his separate property, so he was entitled to have that property designated as his separate property and awarded to him.

Under the source of funds rule, whether property is marital or separate depends on the source of the funds that financed the purchase of the property. Hoffmann v. Hoffmann, 676 S.W.2d 817, 825 (Mo. banc 1984). Property is considered to be acquired as it is paid for, so proportionate shares in the value of an asset should be designated marital or separate according to the source of the payments made to acquire the asset. Id. Hoffmann did not, however, abolish our courts' theory of transmutation which allows a spouse to transmute a piece of separate property to marital property by express or implied agreement. Woolridge v. Woolridge, 915 S.W.2d 372, 376 (Mo.App.1996); Stephens v. Stephens, 842 S.W.2d 909, 913 (Mo.App.1992). There is no conflict between the source of funds rule and transmutation; they are merely relevant in different factual situations. Woolridge, 915 S.W.2d at 376. A spouse transmutes separate property into marital property by titling it in both parties' names. Id.

Here, the title to the Fremont residence was placed in both Husband's and Wife's names at the time of the property's purchase. Despite Husband's claim that he paid the entire down payment from his separate funds, there was evidence that the money for the down payment came not only from the sale of Husband's car, which was his separate property, but also from the sale of some of Wife's jewelry, which was her separate property. Under the source of funds rule, since each spouse contributed nonmarital property, each spouse would be "entitled to an interest in the property in the ratio of the [spouse's] nonmarital investment to the total nonmarital and marital investment in the property." Brooks v. Brooks, 911 S.W.2d 631, 633 (Mo.App.1995).

However, the fact that the deed to the property was jointly titled obviates the need for this court to undergo the analysis under the source of funds rule with regard to the down payment. When a spouse pays for a purchase with separate property, but causes the property to be titled as tenants by the entirety, there is a presumption that a gift was intended to the other spouse. Tracy v. Tracy, 791 S.W.2d 924, 926 (Mo.App.1990). Because the Fremont residence was titled in the joint names of Husband and Wife, there is the presumption that Husband and Wife were making gifts to each other of the separate funds used for the down payment. Id. In order to rebut this presumption, Husband must introduce clear and convincing evidence that he did not intend a gift to Wife of the portion of the down payment paid with his separate funds. Id. Therefore, this court must determine whether Husband met his burden. Id.

In his brief before this court, Husband fails to address the fact that the property is jointly titled and, consequently, neglects to direct our attention to clear and convincing evidence that the joint titling of the property does not demonstrate his intent that the down payment on the Fremont residence become marital property. The only evidence in the record concerning Husband's intent with respect to the Fremont property is his testimony that he "wanted to save the house for the kids." Husband's testimony that he wanted the Fremont property to be used for the children, a marital purpose, actually bodes in...