In Re Marriage of Schulz

583 S.W.2d 735, 1979 Mo. App. LEXIS 2366
CourtMissouri Court of Appeals
DecidedMay 29, 1979
Docket39408
StatusPublished
Cited by26 cases

This text of 583 S.W.2d 735 (In Re Marriage of Schulz) 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
In Re Marriage of Schulz, 583 S.W.2d 735, 1979 Mo. App. LEXIS 2366 (Mo. Ct. App. 1979).

Opinion

KELLY, Judge.

Calvin W. Schulz, appellant, appeals from a judgment of the Circuit Court of Jefferson County dissolving his marriage to Harriet Schulz, the respondent, ordering him to pay her $50.00 per week as maintenance and dividing marital property between the parties. On appeal he raises six grounds for reversal of the judgment; however, only one of them preserves anything for review. 1 Neither party contests that part of the judgment which declares the marriage to be irretrievably broken. We affirm the judgment insofar as it grants the order of dissolution; however, for reasons hereinafter stated, we remand the cause to the trial court for further proceedings.

The major problem with this case is the attempt of the trial court to set apart the property, referred to in the transcript as the “family home” located at 2134 Lonedell Road in Arnold, Missouri, pursuant to the mandate of § 452.330 RSMo. Supp.1973. On the one hand, the respondent 2 has contended throughout these proceedings that this property was conveyed by means of a quit claim deed dated May 28, 1975, to Ella Kober and Clara Rullkoetter (hereinafter “the sisters”) and was not marital property when this cause was instituted. Appellant, on the other hand, has contended throughout this proceeding that he did not join in the quit claim deed of May 28, 1975, and that what purports to be his signature on the deed is, in fact, a forgery. The trial court did not decide this issue; rather, it set aside to respondent, as her sole and exclusive property: “Any and all right, title and interest remaining in the parties” in this property.

As we understand this judgment, whether respondent has any interest in the property on Lonedell Road and receives anything of value by reason of this decree and judgment remains to be determined in some other proceeding. The trial court has not exhausted its jurisdiction and determined whether the Lonedell Road property is marital property, Anspach v. Anspach, 557 S.W.2d 3, 6[3] (Mo.App.1977).

Respondent instituted this dissolution of marriage proceeding on February 16, 1976. The cause was tried on her first amended petition and appellant’s amended answer and counterclaim. 3 Neither respondent’s original petition nor first amended *738 petition contained any request for a division of marital property. Appellant's answer and first amended answer and counterclaim did, however, allege the ownership of a “family home” and prayed that their property be divided between them “according to the contributions of each party to the marriage.”

The evidence at trial was that the parties were married on October 19, 1951, and that they lived together until August 18, 1975, when they separated. No children were born of this union. Although respondent had been employed as a “head checker” for Globe Drug and Sands Drug, she has not been employed since 1973 because of her age and arthritis. There is no evidence in the record concerning respondent’s earnings during that period of time in the marriage when she did work. At trial time, March 9, 1977, she was under the care of a physician because her arms, fingers and hips ached all the time.

Respondent testified that she had income of $225.00 per month. She paid rent of $100.00 per month. Her total expenses, including the rent were $888.00 monthly. Appellant had not given her any money since August, 1975. She continued living in the Lonedell property after she and appellant separated. Prior to their separation appellant gave her cash weekly, sometimes $170.00 and sometimes less.

There was testimony concerning three parcels of real estate. One parcel, Lot 1 of Werner’s Sunset Lake Subdivision in Ste. Genevieve County, Missouri, was purchased in December of 1965, for $750.00 and title was taken in respondent’s name alone. According to the respondent’s testimony, her uncle, Al Rosebeck, since deceased, gave her the money to purchase this parcel. Another parcel was a lot identified as the Table Rock property, which she conceded was marital property. Concerning the “family home” on Lonedell Road, respondent testified she sold it to the sisters who had been neighbors of the parties for more than 20 years, as previously noted hereinabove.

Respondent also testified that she owned one automobile, a 1969 Chevrolet Belair, and the appellant owned a 1975 Chevrolet pick-up truck. The house on Lonedell Road contained household furnishings and furniture which she asked the trial court to set aside for her. Her attorney also had in his possession an income tax refund of approximately $1400.00 on their 1975 federal income taxes.

Respondent owed her uncle’s estate $6,000.00, which she testified he lent her to pay off the old house and build the new one on Lonedell Road. In calculating her monthly expenses she included in that amount $250.00 a month to repay this loan. She owed back rent in the amount of $1600.00 to the sisters.

She testified that during the marriage she handled all of the finances; her husband would give her the money and she would pay the bills.

With respect to the quit claim deed to the Lonedell Road property, the respondent testified that sometime in December of 1974 and January of 1975 she and her husband discussed the conveyance of the property to their neighbor ladies. This discussion took place because he wasn’t working and the bank was calling her about the house payments. “We was going to lose the house.” They were three months behind in their payments. They did not discuss putting the house up for sale. She did not know its fair market value at the time although she did believe it was worth more than they received for it. In January, 1975, respondent, in her husband’s presence, discussed the conveyance of the property to the two sisters. Appellant “okayed” the conveyance and signed the quit claim deed in her presence. Sometime in February, 1975, Ms. Ko-ber paid off the $10,185.00 mortgage on the house; 4 the respondent was with her when this was done at the Concord Bank. Ms. Kober was given the cancelled notes. Nevertheless, the quit claim deed conveying the property was not executed until May, 1975, when she and Ms. Kober went to an attorney in Hillsboro on May 9, 1975, and *739 had him prepare the deed to convey the property. She paid the attorney to prepare the deed. The deed wps signed by the appellant in the kitchen of their home at a time when only he and respondent were there. She did not sign the deed at that time but signed it in the presence of the attorney who prepared it. She knew nothing about the notarization of the deed. In October, 1975, she entered into the rental agreement with the sisters and up to the time of trial she had paid them $600.00. Ms. Rullkoeter corroborated this and further testified that if the $1600.00 due on the rent was not paid soon she and her sister would have to evict respondent. Respondent testified that she did not consider the Lonedell Road property marital property because “it does not belong to either one of us.”

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Bluebook (online)
583 S.W.2d 735, 1979 Mo. App. LEXIS 2366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-schulz-moctapp-1979.