McMillin v. McMillin

929 S.W.2d 947, 1996 Mo. App. LEXIS 1583
CourtMissouri Court of Appeals
DecidedSeptember 20, 1996
DocketNo. 20669
StatusPublished
Cited by1 cases

This text of 929 S.W.2d 947 (McMillin v. McMillin) 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
McMillin v. McMillin, 929 S.W.2d 947, 1996 Mo. App. LEXIS 1583 (Mo. Ct. App. 1996).

Opinion

CROW, Judge.

Robert E. McMillin (“Husband”) appeals from a decree dissolving his marriage to Sheila D. McMillin (“Wife”). Husband maintains the trial court erred in setting apart to Wife, as nonmarital property, a professional corporation and a “one-half interest” in a commercial building.

This is Husband’s second appeal to this court. His first appeal was dismissed because the decree was not final. In re Marriage of McMillin, 908 S.W.2d 860 (Mo.App. S.D.1995). Later in this opinion we refer to that decision as “McMillin I.”

Wife, a certified public accountant, has been practicing that profession since 1978. She married Husband in September, 1990. At that time, she was practicing accounting with Marshall Decker, another certified public accountant.

The building in issue was built in 1984 by Wife and her partner, Decker. At that time, Wife was married to Jerry Harley. Wife testified, without objection or contradiction: “[Jerry Harley’s] name was never on the title to that building. It was the intent that my interest in that be individual and separate from any marital interest.”

The building is situated on Battlefield Road in Springfield. For convenience, we henceforth refer to it as “the Battlefield building.”

In 1992 (two years after Wife married Husband), Wife’s partner, Decker, decided to “leave public practice and ... sell his practice to a younger practitioner.” Wife thereupon purchased Decker’s interest in the Battlefield building. According to Wife, Decker and his spouse “signed quitclaim deeds over ... so the only remaining name on the title was mine.”

To pay for Decker’s interest, Wife “obtained financing through Boatmen’s Bank.” Husband signed the note and a deed of trust on the Battlefield building securing the note. Husband’s testimony about the transaction included this:

“Q. ... You didn’t contribute any funds to buy out Marshall Decker?
A. No, ma’am. No, ma’am.
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Q. [A]ll the money to buy out Mr. Decker as far as the building, his interest in the building, was managed through a loan at Boatmen’s Bank?
A. Plus two other notes paid off at Metropolitan Bank, which was loans for equipment they had bought in the business.
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[949]*949Q. And Sheila owned ... her interest in that building long before you got married?
A. Her half interest? Yes, Ma’am.
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Q. Do you know what she paid Marshall Decker for his interest in the building?
A. I think it was something like $75,000 total, and that was with the substraction [sic] of her half of the loan that was at Metropolitan. There was a calculation made there, and it was something around 75 grand.
Q. But that was for his interest in equipment and his interest in the building, everything?
A. Yes, Ma’am.”

Wife testified the Battlefield building is worth $150,000 and is encumbered by liens totaling $121,350.

Upon buying out Decker, Wife formed McMillin and Company, a professional corporation. For convenience, we henceforth refer to it as “McMPC.” As we understand the evidence, Wife thereafter practiced accounting at the Battlefield building as a sole practitioner through McMPC.

Wife and Husband separated in February, 1994.

The evidence was heard by a family court commissioner. As recounted in McMillin I, the commissioner signed a “Decree Of Dissolution Of Marriage.” 908 S.W.2d at 861. As explained infra in this opinion, a family court judge, following remand in McMillin I, adopted the commissioner’s findings, added an amendment to the commissioner’s “Decree,” and entered the decree from which Husband brings the instant appeal.

The decree awards Wife marital property with an aggregate net value, according to the decree, of $67,421. The decree awards Husband marital property with an aggregate net value, according to the decree, of $70,740.85. Neither side challenges the values assigned by the decree to the marital property.

The decree sets apart to Wife, as her nonmarital property, the Battlefield building and McMPC.

Husband’s first point relied on reads:

“The [trial] court erred in determining that [McMPC] and one-half interest in [the Battlefield] building where [McMPC] carried out its business was Wife’s non-marital property for the following reasons: the corporation was formed during the marriage; Husband worked in the business; Husband was secretary-treasurer and registered agent of the corporation; Husband was authorized on the business checking account and Husband was allocated one-half the profit or loss on the couple’s tax returns prepared by Wife. One-half the building was purchased during the marriage and husband was obligated on the bank loan used to make the purchase.”

The point is slightly misleading in asserting the trial court determined that a half interest in the Battlefield building was Wife’s nonmarital property. As reported above, the trial court held the Battlefield building was entirely Wife’s nonmarital property. We infer Husband’s theory is that the interest Wife acquired in the Battlefield building when she and Decker built it is Wife’s nonmarital property and the interest Wife acquired when she bought Decker out is marital property. For convenience, we henceforth refer to those interests, respectively, as Wife’s “premarital half interest” and “postnuptial half interest.”

The law pertinent to Husband’s first point is § 452.330, RSMo 1994, which reads:

“1.
2. For purposes of sections 452.300 to 452.415 only, ‘marital property’ means all property acquired by either spouse subsequent to the marriage except:
(1) Property acquired by gift, bequest, devise, or descent;
(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
(3) Property acquired by a spouse after a decree of legal separation;
[950]*950(4) Property excluded by valid written agreement of the parties; and
(5) The increase in value of property acquired prior to the marriage or pursuant to subdivisions (1) to (4) of this subsection, unless marital assets including labor, have contributed to such increases and then only to the extent of such contributions.
3. All property acquired by either spouse subsequent to the marriage and prior to a decree of ... dissolution of marriage is presumed to be marital property regardless of whether title is held individually or by the spouses in some form of coownership _ The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection 2 of this section.
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Bluebook (online)
929 S.W.2d 947, 1996 Mo. App. LEXIS 1583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmillin-v-mcmillin-moctapp-1996.