Ker v. Ker

776 S.W.2d 873, 1989 Mo. App. LEXIS 1274, 1989 WL 102163
CourtMissouri Court of Appeals
DecidedSeptember 6, 1989
Docket15855
StatusPublished
Cited by10 cases

This text of 776 S.W.2d 873 (Ker v. Ker) 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
Ker v. Ker, 776 S.W.2d 873, 1989 Mo. App. LEXIS 1274, 1989 WL 102163 (Mo. Ct. App. 1989).

Opinion

HOLSTEIN, Chief Judge.

Appellant Houston Ker and respondent Beverly Ker were married October 1, 1977. Both had children by prior marriages, but none were bom of this marriage. Following separation on March 6, 1987, Beverly filed a petition for dissolution of marriage. Judgment was entered granting the dissolution of marriage and other relief. Houston appeals.

The points raised on appeal relate to the division of property and the award of maintenance. Trial was held in two segments, one in October of 1987 and the second in May of 1988. The points require a discussion of the facts developed during both segments of the trial.

Houston graduated from dental school in 1966. Except for a period during the marriage when his license was suspended, he practiced in his profession until the present. By 1986 his income approached $100,000 annually.

Beverly, age 43 at the time of the trial, worked at various clerical jobs prior to the marriage. Her only employment during the marriage was in her husband’s dental office. She ultimately became office manager. After the separation all employment with the dental practice terminated. Although offered two jobs, Beverly did not seek or accept employment immediately after the separation. She hoped the case would be resolved quickly and she could go into business with friends. As that was not the case, she accepted part-time work at $4.00 per hour, twenty to twenty-eight hours a week, at an employment service. She was promised that the part-time work would become full-time. When employed full-time, her pay would be $600 a month plus fifty percent commissions.

The evidence of Beverly’s expenses was limited to “Petitioner’s Pretrial Exhibit 6” which indicated monthly expenses of *876 $2,435. Whether that exhibit is part of the record will be discussed below.

Beverly considered herself in good health, although she had a laminectomy in 1972. That condition was complicated by torn ligaments in her back. By the time of trial, the problem persisted but could be managed if she was careful.

Beverly called an expert witness who testified that the assets of the dental practice were worth approximately $163,000. Of that amount $90,000 was allocated as good will. An exhibit detailing the elements of her expert’s evaluation was rejected by the trial court on the basis that the judge had “heard the testimony.” Houston called an expert who testified that the dental equipment was worth $23,000, and supplies on hand were worth $8,700. Houston’s expert gave no testimony regarding good will, accounts receivable, or office decorations. Those items were considered in the evaluation made by Beverly’s expert.

The dental practice was established in its present location in 1978, less than one year following the marriage. According to Beverly, the original dental equipment was purchased prior to the marriage. It had been added to so that about fifty percent of the present equipment was purchased prior to the marriage. According to Houston, the assets of his practice were purchased using $23,000 received from a sale of his interest in a dental partnership owned by him prior to the marriage. Although Beverly worked in the practice, including keeping the office open while Houston’s license was under suspension, no evidence was produced showing that her services added to the value of the dental assets purchased in 1978.

The primary debt of the marriage was an income tax obligation for 1986 and prior years totalling almost $90,000. Among other complaints against her, Houston accused Beverly of being responsible for not paying the taxes. Prior to the final segment of the trial, Houston hired a firm in the business of repossessing property to pick up two vehicles in Beverly’s possession. According to Houston, he intended to turn those over to the Internal Revenue Service to apply to the tax debt.

At the close of the evidence, the trial court orally indicated the value of certain items of property and identified items as marital or nonmarital. He made no specific finding as to the value of the dental practice or its assets, but stated the “practice that has been built up ... is a result of efforts of both parties.”

The trial court’s written decree granted a dissolution of marriage, set aside nonmari-tal property to each of the parties, divided marital property, and awarded maintenance. Beverly was awarded $30,000 maintenance in gross “to render the division of property herein fair and just,” as well as $300 per month periodic maintenance. Although Houston listed the assets of the dental practice on his schedule of nonmarital properly, such assets were conspicuously absent from the schedule of nonmarital property set aside to Houston in the court’s decree. The decree did not specifically evaluate or even mention the dental practice. However the decree provided, “All marital personal property, with the exception of those itemized in the schedules herein, is awarded to the party in possession of the same, such that Respondent is awarded all personal property in his possession_” From this record it appears the trial court treated all assets of the dental practice as marital property.

The third point requires reversal, and it will be addressed first. In that point Houston claims the trial court erred in treating the assets of the dental practice as a marital asset. Property acquired by a spouse after the marriage is presumed to be marital property unless it falls into one of the exceptions provided in § 452.330.2. 1 Houston has the burden of establishing that assets of the practice acquired after the marriage were not marital property. Corbett v. Corbett, 728 S.W.2d 550, 553 (Mo.App.1987). However, property acquired in exchange for property acquired prior to the marriage is not marital proper *877 ty. § 452.330.2(2). Nonmarital property may lose its character as such if there is evidence of an intention to contribute the property to the community. True v. True, 762 S.W.2d 489, 492 (Mo.App.1988). An asset which was originally nonmarital property may become a marital asset in part under the source of funds rule. That rule provides that the character of the property is determined by the source of funds financing the purchase, and is considered to be acquired as it is paid for so that a portion of the property’s ultimate value will be marital property. Hoffmann v. Hoffmann, 676 S.W.2d 817, 824 (Mo.banc 1984). Enhancement of value resulting from appreciation, inflation, changing economic conditions, or circumstances beyond the control of the parties is not marital property unless the nonowning spouse can prove that his or her contributions were a causal factor. In re Marriage of Herr, 705 S.W.2d 619, 622 (Mo.App.1986).

Applying the legal principles noted above to the evidence presented by both Beverly and Houston, it becomes clear that the original assets of the dental practice were not marital property. Beverly admits they were purchased prior to the marriage.

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Bluebook (online)
776 S.W.2d 873, 1989 Mo. App. LEXIS 1274, 1989 WL 102163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ker-v-ker-moctapp-1989.