Winter v. Winter

• Decision Date: 13 July 2005
• Docket Number: No. 26267.,26267.
• Parties: Gail Ellen WINTER, Petitioner-Appellant, v. George Wayne WINTER, Respondent-Respondent.
• Court: Missouri Supreme Court

167 S.W.3d 239

Gail Ellen WINTER, Petitioner-Appellant, v. George Wayne WINTER, Respondent-Respondent.

No. 26267.

Missouri Court of Appeals, Southern District, Division One.

July 13, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John J. Podleski, Crandall & Podleski, Carthage, for appellant.

Jerry L. Reynolds, Reynolds & Conway, P.C., Springfield, for respondent.

PHILLIP R. GARRISON, Presiding Judge.

Gail Ellen Winter ("Wife") appeals from a Judgment and Decree of Dissolution of Marriage entered by the circuit court of Jasper County. She contends that the trial court erred in characterizing certain property as non-marital, in dividing marital property, and in requiring her to provide health insurance benefits for George Wayne Winter ("Husband"). We affirm in part and reverse and remand in part.

Wife and Husband were married on October 14, 1972, and separated on July 27, 2001. Both children born of the marriage were emancipated at the time of the dissolution. During the marriage, Husband farmed land with his father until his father's death in 1993, after which time he farmed on his own. Wife worked as a high school teacher.

The standard of review in court-tried cases is well established. We will affirm the judgment of the trial court unless "there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).¹

The first three points on appeal revolve around the trial court's characterization and division of four tracts² of real property and certain items of personal property. The fourth point deals with a health insurance policy which the trial court ordered Wife to maintain on Husband.

In Wife's first point, she claims that the trial court erred by determining that four parcels of real estate, aside from some marital contributions, were the non-marital property of Husband. Wife argues that tracts 1 and 2 were conveyed to her and Husband jointly during the marriage and are therefore presumptively marital. She also claims that tracts 3 and 4, previously titled in Husband's name alone, became marital because Husband conveyed them to him and Wife jointly, thereby transmuting them from non-marital to marital. She argues that these conveyances created a presumption, which Husband did not rebut, that the property became marital.

The identification of property as marital or separate is in the broad discretion of the trial court. Selby v. Selby, 149 S.W.3d 472, 482 (Mo.App. W.D.2004). "When the characterization of property depends on an assessment of witness credibility, we will defer to the trial court's credibility determinations." Id. Section 452.330.2³ creates a presumption that all property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation or dissolution is marital, regardless of whether title is held individually or jointly. Section 452.330.3; Selby, 149 S.W.3d at 483. This presumption can be overcome, however, by showing that the property was acquired by one of the exceptions listed in Section 452.330.2. Section 452.330.3; Selby, 149 S.W.3d at 483. The exceptions applicable to this case are "(1) Property acquired by gift, bequest, devise, or descent; [and] (2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent." Section 452.330.2. These exceptions must be proven by clear and convincing evidence. Stidham v. Stidham, 136 S.W.3d 74, 79 (Mo.App. W.D.2004).

We first address tracts 3 and 4, 120 acres in Barton County and 157 acres in Jasper County, respectively. Husband inherited these tracts in his name only when his father died. Approximately four years later, in 1997, Husband suffered a stroke and a severe infection which required his hospitalization for several weeks. Wife testified that while he was hospitalized, Husband wanted deeds prepared to put the land in both his and Wife's name so that if anything happened to him, Wife could avoid probate. To this end, Wife contacted J.D. Pahlow ("Pahlow"), a friend of Husband's and owner of a title insurance company. Pahlow came to the hospital and brought with him two deed forms, both of which listed Husband and Wife as grantees, and were signed by them in Pahlow's presence. One of the daughters of Husband and Wife videotaped the signing. The tape clearly shows that at least one of the deeds did not contain a legal description when signed. In fact, Pahlow admitted at trial that the deed intended for tract 4 contained no legal description when it was signed, and that it was added by him at a later time. While there was evidence that the deed for tract 3 was complete when signed, Wife was impeached with her deposition testimony that the legal description in it was also missing when signed. She also testified that, after signing blank forms Husband never delivered to her "another deed that was, in fact, signed, filled out, notarized, completed[.]"

Pahlow apparently maintained possession of the deeds for a period of time. He did not remember who picked up the deeds from him, though Wife testified that he called her and asked her to pick them up. She testified that she took the deeds home and asked Husband what he wanted to do with them and he told her to record the deeds. Wife recorded the deeds in October and November of 2000. Husband testified at trial that he had no memory of signing any documents at the hospital, that he did not tell Wife to record the deeds, and that he did not receive the deeds from Pahlow. He learned later, during the course of the litigation, that the deeds had been recorded and he then recorded documents purporting to revoke the deeds.

There is uncontradicted evidence that Husband received ownership of tracts 3 and 4 through inheritance from his father. Property acquired by devise or descent is not marital property, even if acquired during the marriage. Section 452.330.2(1). Accordingly, these two tracts could only become marital property if Husband transmuted the property through the deeds while he was in the hospital.

When separate property is placed in the joint names of both spouses, a presumption is created that the property becomes marital and clear and convincing evidence is required to show that a gift was not intended. Montgomery v. Montgomery, 18 S.W.3d 121, 124 (Mo.App. S.D.2000). Clear and convincing evidence "`refers to evidence which instantly tilts the scales in the affirmative when weighed against the evidence in opposition, and the fact finder's mind is left with an abiding conviction that the evidence is true.'" Id. (quoting In re Marriage of Jennings, 910 S.W.2d 760, 763 (Mo.App. S.D.1995)). "The trial court may be clearly convinced of the affirmative of a proposition even though it has contrary evidence before it, and evidence in the record that might have supported a different conclusion does not necessarily demonstrate that the trial court's determination is against the weight of the evidence." In re Marriage of Gilmore, 943 S.W.2d 866, 870-71 (Mo.App. S.D.1997). Self-serving testimony that a spouse did not intend a gift is entitled to little weight when that spouse caused separate property to be transferred to the spouses jointly. Montgomery, 18 S.W.3d at 124.

The trial court found that these tracts were the non-marital property of Husband because he inherited the land from his father. In its findings of fact regarding these parcels, the trial court found that Pahlow had been summoned to the hospital by Wife to prepare the deeds to these tracts in order to transfer title from Husband to Husband and Wife, and that the documents prepared by Pahlow consisted of one blank deed form and one deed form either partially or completely filled out; "[s]uch documents were taken by [Pahlow] and completed and notarized at a later time"⁴; and, "[t]here was no testimony that [Husband] delivered completely executed documents to anyone." See Rhodes v. Hunt, 913 S.W.2d 894, 900 (Mo.App. S.D.1995) (a deed must be delivered to be valid); West v. Witschner, 428 S.W.2d 538, 544 (Mo.1968) (a deed, delivered without a legal description and with no authority to fill out that description, is inoperative). The trial court obviously concluded that the deeds were not effective to convey these properties to Husband and Wife's joint names, and thus did not transmute these parcels from separate to marital property.

Appellate review is limited to those issues raised in the point relied on. Lasker v. Johnson, 123 S.W.3d 283, 289 (Mo.App. W.D.2003). In her point relied on, as it regards these tracts, Wife states,

The Trial Court erred in deciding that [tracts 1, 2, 3, and 4], which were jointly titled in the names of the parties as Husband and Wife at the time of trial were mostly the separate non-marital property of Husband because the law assumes a gift to the marital estate when a party transfers separate property into joint names. This was an abuse of discretion and against the weight of the evidence.... Deeds on [tracts 3 and 4] transferring title from Husband alone to Wife and Husband were recorded in 2000. Husband failed to show an exception to the presumed gift because he could not "trace" his alleged non-marital contribution to these jointly held properties.

In the argument section of her brief, Wife gives a recitation of the events occurring in the hospital and afterward. Her contention under this point starts with the assumption that the deeds were valid, and her only argument is that Husband did not rebut the presumption resulting when separate property is placed in the joint names of spouses. Her point relied on and the argument supporting it are devoid of any contention, or of citation to any authority, attacking the trial court's obvious conclusion that the deeds relied upon by Wife were ineffective to...