Mitchell v. Mitchell

711 S.W.2d 572, 1986 Mo. App. LEXIS 4208
CourtMissouri Court of Appeals
DecidedJune 3, 1986
DocketNos. 49169, 49134
StatusPublished
Cited by6 cases

This text of 711 S.W.2d 572 (Mitchell v. Mitchell) 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
Mitchell v. Mitchell, 711 S.W.2d 572, 1986 Mo. App. LEXIS 4208 (Mo. Ct. App. 1986).

Opinion

SIMON, Judge.

This is a consolidation of appeals from a decree of dissolution entered July 24, 1984 in the Circuit Court of St. Charles County, Missouri in a court tried case. Appellant, Louise A. Mitchell (wife), alleges that the trial court erred in: (1) failing to consider and include certain assets when dividing the marital property; (2) adopting the master’s report where no record nor transcript was made or submitted to the court pursuant to Rule 68.01(g); (3) adopting the master’s report where the evidence clearly showed it to be an incomplete disposition of the assets; (4) refusing to independently consider evidence introduced at the master’s hearing and the hearing on wife’s objections to the master’s report where Rule 73.01(a)(2) and § 510.310 RSMo 1978 require a judgment to be made on all the evidence; (5) refusing to include findings and conclusions in the opinion and decree as requested by wife pursuant to Rule 73.-01(a)(2); (6) failing to award wife full amount of attorney’s fees.

Appellant William Ernest Mitchell (husband), in his appeal claims the trial court erred in: (1) declaring real estate in St. Charles to be marital property where such was against the weight of the evidence and an erroneous application of law; (2) valuing the “Nettie” property at $65,000 where such was unsupported by the evidence, and (3) awarding wife partial attorney’s fees and costs where the financial resources of the parties were relatively equal, wife had adequate resources to pay her own fees, and there was no demonstration that husband had the ability to pay the fees awarded to wife. Both parties request that the case be remanded for a new trial.

A brief rendition of background facts and procedural history of the case shall be set forth. Additional facts will be provided as necessary to dispose of the individual points on appeal. Husband and wife were married in St. Charles County, Missouri on January 23, 1960. The couple had two children born during their marriage. Throughout most of the marriage, husband was self employed as a car dealer and as a landlord of rental properties. Wife assisted in those businesses for some time prior to 1975 at which time she assumed her present position as a full time employee at St. Charles County library. On August 6, 1982, wife filed a petition for dissolution of [574]*574marriage in the Circuit Court of St. Charles County, Missouri following periods of living separate and apart. A special judge was appointed for the case and the hearing was held on May 26 and 27, 1983. Counsel filed suggested findings of fact and conclusions of law on June 3, 1983. An interlocutory decree with findings of fact as to the parties’ separate and marital property and an order of reference appointing a master were entered July 18, 1983. The special master was appointed to determine the existence of certain alleged marital assets not identified in the court’s findings, and the amount and disposition of all rental income from the marital real estate identified by the court. On May 4, 1984 the master’s report was filed with the trial court which indicated that he found no evidence of the existence of marital assets not already identified by the court in its findings and that there was insufficient information to determine the amounts and disposition of all rental income. The trial court adopted the master’s report and entered a decree of dissolution, which it subsequently set aside upon wife’s request to file objections to the master’s report. These were filed May 18, 1984, and the trial court, after a careful review, found the objections similar, if not identical to those presented to the court at the time of the dissolution hearing, and that no new material of consequence was presented to the master. The objections were denied and a final decree was entered June 11, 1984. On June 13, 1984 wife sought a writ of mandamus to force a hearing on objections to the master’s report. The trial court set aside the June 11 decree, making the writ moot, and a hearing was held on July 11, 1984. The final decree was re-entered July 24, 1984. Both parties filed post trial motions for a new trial which were denied. It is from these proceedings that the appeals are taken. We first consider husband’s contentions on appeal.

In his appeal, husband alleges the trial court erred in declaring the real estate at # 122 Lindenwood, St. Charles, Missouri (“Lindenwood”) to be marital property as such decision was against the weight of the evidence, and erroneously declared and applied the law where husband acquired the property prior to the marriage and did not cause wife’s name to be placed on the title. In addition, husband contends that there was no evidence that wife made any financial contribution to the property and that except for $9500.00 to pay off indebtedness during the course of the marriage, no marital funds were used to purchase the property. In response, wife contends the property was marital where husband contributed it to the estate and that since husband does not challenge the division of marital property nor the disposition of the Lindenwood property any alleged error in the designation of the property is harmless error.

Our review is limited to whether the trial court’s decision is supported by substantial evidence, is against the weight of the evidence, erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In review, we note that the source of funds doctrine as stated in Hoffman v. Hoffman, 676 S.W.2d 817, 824-825 (Mo. banc 1984) is applied retroactively and thus governs this case. Sumners v. Sumners, 701 S.W.2d 720 (Mo. banc 1985). Under the source of funds rule 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. Hoffman, 676 S.W.2d at 824.

Husband testified that he purchased the Lindenwood property several months prior to his marriage to wife for approximately $11,000. He stated that he took a note on the property for approximately $9500. He also stated the house was paid off during the marriage and admitted that approximately $9500 in marital funds was used to pay off the indebtedness. Applying the source of funds rule, husband and the marital estate are each entitled to a share in the property proportionate to their respective investments. Id. at 825, citing Hall v. Hall, 462 A.2d 1179, 1182 (Me.1983). According to the marital estate’s [575]*575and husband’s respective investments, the Lindenwood property is approximately 86.36% marital property and approximately 13.64% separate property of the husband. The record reveals only that the trial court designated the property to be marital property. In support of wife’s contribution theory, there is evidence that the property was used as the family home for 17 years and thereafter as income producing property of which the rentals became marital property. We cannot say that the trial court did not consider these as factors in designating the property to be marital where the reasons for the court’s determination are not set forth. In any event, we fail to find any prejudice. The trial court awarded the Lin-denwood property to husband. Neither party alleges, nor do we find, any inequity in the distribution. Point one is without merit.

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Bluebook (online)
711 S.W.2d 572, 1986 Mo. App. LEXIS 4208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-mitchell-moctapp-1986.