Marriage of Probstein v. Probstein

767 S.W.2d 71, 1989 Mo. App. LEXIS 201, 1989 WL 11641
CourtMissouri Court of Appeals
DecidedFebruary 14, 1989
DocketNo. 53944
StatusPublished
Cited by8 cases

This text of 767 S.W.2d 71 (Marriage of Probstein v. Probstein) 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
Marriage of Probstein v. Probstein, 767 S.W.2d 71, 1989 Mo. App. LEXIS 201, 1989 WL 11641 (Mo. Ct. App. 1989).

Opinion

KAROHL, Judge.

Virginia Marie Probstein and Norman Koplar Probstein were married on July 4, 1960. They separated on October 8, 1982. During the marriage they adopted and raised two children, twins born May 19, 1965. The children were college students at the time of the dissolution. The court found them to be emancipated. After a contested hearing on cross petitions for dissolution filed by the parties, the court entered a degree of dissolution on September 3,1987. The court amended the decree on October 22, 1987. Both parties appeal from some of the provisions of the decree.

Husband appeals claiming the court erred in: (1) finding 241,510 shares of Ma-desco Investment Company to be marital property and in awarding one half of the shares to wife; (2) awarding wife maintenance in the amount of $3,000 per month; and, (3) awarding attorney’s fees for wife’s attorney. Wife appeals claiming the court erred in: (1) not disposing of a marital asset, a promissory note of husband’s sister in the amount of $99,034; and, (2) finding one half of the shares of Hamat Motel Corporation, a Missouri corporation, were the separate property of husband and awarding them on that basis to husband when those shares were marital property.

At the time of the trial husband was sixty-seven and wife fifty-six years old. The evidence was presented to the court during a four day hearing. Some matters were presented by agreement in the form of stipulations. For example, the parties stipulated that property found to be marital property should be divided one half to each party and distributed in kind where possible, except that if husband’s interest in Hamat Motel Corporation was found to be marital property, husband would not agree to such a division. The court found Hamat Motel Corporation to be husband’s separate property. The court found conduct of the parties during the marriage was not alleged or proven by either party to be a factor to be considered.

Husband’s Appeal

Husband claims the court erred in finding 241,510 shares of Madesco Investment Corporation (hereinafter Madesco) were marital property and in awarding wife one half thereof. He claims his unrefuted evidence was that this stock was his separate property because these shares were issued to husband in exchange for cash previously advanced from Boulevard Investment Company (hereinafter Boulevard) to Madesco. Thereafter, Boulevard stock was exchanged for other shares in Madesco in 1965. The parties stipulated that husband owned his shares in Boulevard before marriage. Boulevard was formed in 1956, pri- or to the marriage in 1960. Husband claimed 487,710 shares of Madesco. The parties stipulated that 246,200 shares in Madesco were husband’s separate property because they were received in exchange for husband’s stock in Boulevard, which was acquired before marriage. Husband testified that before the Boulevard stock was exchanged for Madesco stock and before the merger of Boulevard into Madesco— Boulevard advanced money to Madesco. The disputed shares, husband claimed, were to compensate husband for those advances. Husband testified he never invested any personal funds into Madesco after the marriage of the parties. He also explained that the original assets of Madesco, incorporated after the marriage, came from assets of Boulevard.

[73]*73The disputed shares, 241,510 shares, were issued by Madesco to husband at various times and in various amounts. On July 26, 1961, he received 176 shares. On August 1, 1961, he received 223 shares. On April 20, 1962, he received 38,610 shares. On June 8, 1962, he received 31,200 shares. On June 8, 1962, four certificates, totaling 70,200 shares, were exchanged for a single certificate. On March 9, 1964, husband received 131,310 shares. Finally, on April 24, 1964, husband was issued 40,000 shares.

Wife answers that these shares, acquired subsequent to the marriage, are presumed to be marital. Section 452.330.3 RSMo 1986. She responds to husband’s claim of error that the presumption has not been rebutted. Husband relies on the provisions of § 452.330.2 RSMo 1986, which defines marital property and excepts therefrom property acquired in exchange for property acquired prior to the marriage. He supports this claim by the unrefuted testimony that he never paid any money for the 241,-510 shares.

We find no error in the finding of fact that 241,510 shares, acquired after the marriage and presumed to be marital, are marital property. Property acquired after marriage may be acquired without a payment of money and be marital property. The shares issued on various certificates after the marriage were issued by actions of the shareholders and directors of Mades-co. The evidence does not compel a finding that the shares were issued in exchange for premarital separate property. They may have been compensation for services. Proof that they may be separate property does not overcome the presumption.

Husband’s reliance on Hoffmann v. Hoffmann, 676 S.W.2d 817 (Mo. banc 1984) is misplaced because that case involved the division of admittedly marital property. The issue before the trial court in the present case was whether the property was marital or separate. Husband’s testimony, even if fully believed and accepted by the trial court, did not conclusively establish that the disputed shares of Madesco were acquired in exchange for premarital property. The undisputed shares of Madesco, 246,200 shares, were issued to husband in exchange for his premarital shares of Boulevard. The shares issued at various times after the marriage were not necessarily in exchange for husband’s interest in Boulevard.

Even if no marital funds were invested into Madesco it may be that the shares were issued for services rendered after the marriage. The record does not rebut that possibility. Accordingly, the presumption of marital property has not been overcome by the testimony of husband or the records of the corporations which were exhibits. In 1960, Boulevard merged into Madesco and husband received 246,200 Madesco shares, stipulated to be his separate property and awarded to him as separate property. The subsequent stock issues totaling 241,510 shares were not shown, by undisputed evidence, to be traceable to Boulevard. We also note evidence that Madesco stock may be of little or no value. Point denied.

Husband contends wife was not entitled to periodic maintenance because the property award provisions of the decree vested her with sufficient property to provide for her needs and because she is able to support herself through appropriate employment. The court awarded wife statutory periodic maintenance of $3,000 per month which maintenance “shall terminate upon the death of either party or the remarriage of the [wife].” We find no error in the award of statutory periodic maintenance. The award was not an abuse of discretion in view of the evidence. In re Marriage of K.B., 648 S.W.2d 201, 206 (Mo.App.1983).

During the period of the marriage, twenty-seven years, wife had some periodic employment but never earned a sufficient sum to support herself. The bulk of her earnings during the period of the marriage came from a corporation she incorporated. It purchased personal property at wholesale and sold to corporations in which husband had a substantial ownership interest. The company had earnings ranging from eight to twenty-four thousand dollars per [74]*74year. At the time of the hearing the company was inactive.

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Bluebook (online)
767 S.W.2d 71, 1989 Mo. App. LEXIS 201, 1989 WL 11641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-probstein-v-probstein-moctapp-1989.