Endebrock v. Endebrock

916 S.W.2d 456, 1996 Mo. App. LEXIS 326, 1996 WL 80991
CourtMissouri Court of Appeals
DecidedFebruary 27, 1996
Docket67007
StatusPublished
Cited by13 cases

This text of 916 S.W.2d 456 (Endebrock v. Endebrock) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Endebrock v. Endebrock, 916 S.W.2d 456, 1996 Mo. App. LEXIS 326, 1996 WL 80991 (Mo. Ct. App. 1996).

Opinion

AHRENS, Presiding Judge.

In this dissolution ease, wife appeals and husband cross-appeals from the trial court’s judgment. Wife’s brief sets out three “Points Relied On” and husband’s brief sets out eight “Points Relied On”. There are, however, basically only five issues raised; the trial court erred in: (1) characterizing certain assets as marital property; (2) failing to distribute certain assets in the marital property division; (3) valuing the marital assets; (4) distributing the marital assets; and (5) determining the amount of maintenance awarded to wife. We affirm as modified.

Husband and Wife were married on October 15,1958, when both parties were twenty-three years old. Four children were born of the marriage, all of whom were emancipated by 1984. Some dispute exists as to the date of separation as evidenced by wife moving out of the couple’s primary home in Crest-wood and into the couple’s secondary home in High Ridge. Husband contends wife changed residences in April, 1989. Wife counters that she resided at both locations •from April, 1989 until June, 1992 at which time she moved to the High Ridge home. Wife filed a petition for dissolution of marriage on August 8,1992. A hearing was held on February 16, 1994, and the decree of dissolution was entered on June 6, 1994. In the decree, the trial court determined that no separate property existed, divided the marital assets, ordered husband to make an equalization payment of $57,241.44, and ordered husband to pay $5,000 of wife’s attorney fees.

Review of this case is governed by Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm the trial court’s decree of dissolution unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. Further, we view the evidence and the concomitant inferences in a manner favorable to the decree while disregarding all contradictory evidence. Cohn v. Cohn, 841 S.W.2d 782, 785 (Mo.App.1992).

In two of the points on appeal, one by wife and one by husband, the parties assert that the trial court erred in failing to set aside certain property as separate property. Section 452.330.3 states, “[a]ll property acquired *458 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....” That presumption may be rebutted by clear and convincing evidence of one of the circumstances enumerated in § 452.330.2. Kettler v. Kettler, 884 S.W.2d 729, 731 (Mo.App.1994). After carefully reviewing the record, we find that the trial court acted within its discretion in characterizing these assets as marital property.

Wife contends she received cemetery plots as a gift from her mother. Proof, by clear and convincing evidence, the asset was a gift is one method of rebutting the statutory presumption. § 452.330.2(1); Kettler, 884 S.W.2d at 731. While some evidence was presented that the plots were a gift solely to wife, other evidence indicated the plots were meant as a gift to both spouses. Where conflicting evidence exists, deference is given to the trial court which can assess the credibility of the witnesses. Id., at 732. We cannot say the trial court erred in determining the cemetery plots were marital property-

Husband asserts that his Bi-State 401 (k) did not fall within the statutory presumption favoring the characterization of assets as marital property because he commenced employment with Bi-State Development Agency after the parties separated in April, 1989. Since wife did not contribute to the marriage after that date, he argues, she is not entitled to any assets he earned during that time. Husband misunderstands the law. The Bi-State 401(k) was earned prior to the decree of dissolution and there was no decree of legal separation. Husband did not introduce any evidence of a statutorily authorized method for rebutting the presumption of marital property. See § 452.330.2. The trial court did not err in determining the Bi-State 401 (k) was marital property. See Ewing v. Ewing, 901 S.W.2d 330, 334 (Mo.App.1995). Points denied.

In four of the points on appeal, three by husband and one by wife, the parties argue that the trial court erroneously failed to include seven marital assets when dividing the marital property. Husband asserts, therefore, the equalization payment was improperly calculated. We disagree.

In his three points on appeal, husband implies that the trial court ignored three marital assets appropriated by wife. Wife admits she appropriated three marital assets: (1) one-half of the proceeds from two Roosevelt Bank Certificates of Deposit worth a combined $45,000; (2) a dividend check worth approximately $7,800 from the Nuveen Tax Exempt Unit; and (3) four withdrawals totalling approximately $25,000 from a joint checking account. Wife testified that she deposited all of these funds into her two accounts, a Boatmen’s bank account and a Roosevelt bank account. While we find that the trial court did not expressly include the three appropriated assets in the division of marital property, the court indirectly included them by awarding both bank accounts to wife.

Documentary evidence showed that much of the appropriated funds deposited into the Boatmen’s account had been depleted by the time of trial. Wife testified that the funds were spent on living expenses during the parties’ separation. Husband argues that these depleted funds should be included in the marital property division and the equalization payment adjusted accordingly. Husband’s argument implies a request that the court assign a value to the Boatmen’s account on the date the assets were appropriated. We refuse to grant this request. The proper date for valuing marital property is the date of trial. Barnes v. Barnes, 903 S.W.2d 211, 214 (Mo.App.1995). Therefore, we hold the trial court correctly assigned a value to the Boatmen’s account 1 . Furthermore, husband presented no evidence which would indicate that wife secreted or squandered this marital property in anticipation of divorce. Thus, reimbursement to husband would be inappropriate. Hoffmann v. Hoffmann, 676 S.W.2d 817, 828 (Mo. banc 1984).

*459 In part of her point on appeal, wife contends that both an HBE 401(k) plan and an HBE Savings Plan were not included in the division of marital property. She argues that because these plans were acquired during the marriage, the court should have considered them part of the marital estate. The record shows these two plans are actually the same plan, an HBE 401(k) Savings Plan, and the plan was expressly awarded to husband as marital property. The trial court committed no error with regard to this plan.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hilligardt-Bacich v. Bacich
174 S.W.3d 11 (Missouri Court of Appeals, 2005)
Travis v. Travis
163 S.W.3d 43 (Missouri Court of Appeals, 2005)
Sullivan v. Sullivan
159 S.W.3d 529 (Missouri Court of Appeals, 2005)
Krost v. Krost
133 S.W.3d 117 (Missouri Court of Appeals, 2004)
Bonenberger v. Bonenberger
108 S.W.3d 729 (Missouri Court of Appeals, 2003)
Booth v. Greene
75 S.W.3d 864 (Missouri Court of Appeals, 2002)
McGowan v. McGowan
43 S.W.3d 857 (Missouri Court of Appeals, 2001)
Shelton v. Shelton
29 S.W.3d 400 (Missouri Court of Appeals, 2000)
Finnical v. Finnical
992 S.W.2d 337 (Missouri Court of Appeals, 1999)
Shannon v. Shannon
969 S.W.2d 347 (Missouri Court of Appeals, 1998)
Bullard v. Bullard
969 S.W.2d 880 (Missouri Court of Appeals, 1998)
Stratman v. Stratman
948 S.W.2d 230 (Missouri Court of Appeals, 1997)
Lawrence v. Lawrence
938 S.W.2d 333 (Missouri Court of Appeals, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
916 S.W.2d 456, 1996 Mo. App. LEXIS 326, 1996 WL 80991, Counsel Stack Legal Research, https://law.counselstack.com/opinion/endebrock-v-endebrock-moctapp-1996.