Podrecca v. Podrecca

794 S.W.2d 329, 1990 Mo. App. LEXIS 1279, 1990 WL 120168
CourtMissouri Court of Appeals
DecidedAugust 20, 1990
DocketNos. 16384, 16392
StatusPublished
Cited by7 cases

This text of 794 S.W.2d 329 (Podrecca v. Podrecca) 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
Podrecca v. Podrecca, 794 S.W.2d 329, 1990 Mo. App. LEXIS 1279, 1990 WL 120168 (Mo. Ct. App. 1990).

Opinion

FLANIGAN, Chief Judge.

This action for dissolution of marriage was instituted by Judy Podrecca against her husband Guido Podrecca. The parties, who will be referred to by their first names, were married on March 18, 1987. Judy was then almost 39 and Guido was 64. Each had been married before. Judy Had three children by a prior marriage and Guido had one child. This marriage was childless. The parties separated on February 6, 1988, and this action was filed on February 9, 1988.

On January 10, 1986, a Missouri corporation known as Podrecca Enterprises, Inc. (hereinafter referred to as “the corporation”) was formed, and 500 shares of its stock were issued to Guido. No other shares were issued. Judy was president and chairman of the board of the corporation.

The parties made extended trips together in early 1986, and in May 1986 Judy “moved in” with Guido. On March 17, 1987, the day before the marriage, they entered into an antenuptial agreement which contained provisions dealing with “separate property ... as defined herein” in the event either filed an action for dissolution of the marriage.

On April 18, 1989, the trial court, after several evidentiary hearings, entered a judgment which, among other things, found that both parties “had acknowledged in their briefs the validity of the antenup-tial agreement” and that the trial court concurred in that conclusion. Neither side challenges those findings.

In addition to dissolving the marriage, the trial court’s judgment awarded Judy certain items as her separate property, other items as her unencumbered marital property, and other items as her encumbered marital property, with Judy to pay the encumbrances. None of those items was income-producing. The judgment also awarded Judy $3,000 as maintenance in gross and monthly maintenance in the amount of $700 for 18 months commencing February 1, 1989. Judy was also awarded attorney fees in the amount of $5,500.

The judgment, awarded Guido the 500 shares of stock in the corporation and 23 assets, consisting of both realty and personalty, the combined value of which exceeded $400,000. Judy and Guido filed separate appeals, which were consolidated in this court.

In general, Guido contends that the trial court erred in not distributing to him $24,-284.53 which was approximately half of [331]*331$48,284.53 which Guido “derived from family inheritance in Italy.” The other half of that inheritance was paid to Guido by Judy prior to the filing of the action. Guido also challenges the awards of maintenance and attorney fees which the court granted Judy.

In general, Judy contends that the trial court erred in construing paragraph 10A of the antenuptial agreement, in rejecting Judy’s offer of a prior and unexecuted draft of the antenuptial agreement, and in finding that the corporation owed Guido $97,693 on the date the dissolution action was filed.

Guido’s first point reads: “The trial court erred and abused its discretion in determining that [Guido’s] separate non-marital assets were changed into marital funds and in failing to distribute one-half of [Guido’s] separate non-marital funds.” By motion, Judy challenges the sufficiency of Guido’s first point and asserts that the point does not comply with Rule 84.04(d).1

Judy’s position is sound, and the point is defective. “The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citations of authorities thereunder.” Rule 84.04(d). One defect in the so-called point is that it fails to state “wherein and why” the alleged determination and failure are claimed to be erroneous. This court has made a gratuitous examination of Guido’s argument under the point for possible plain error. See Rule 84.13(c). For the reasons which follow, this court finds no plain error and Guido’s first point, even if properly stated, has no merit.

The point concerns $48,284.53 which Guido inherited from a relative in Italy. Several months after their marriage, Guido and Judy made an extended trip to Europe. The funds representing Guido’s inheritance were in a bank at Rome. Guido and Judy went to the bank, where Guido conversed with a banker concerning the transfer of the funds to the United States. The conversation was in Italian, which Judy does not speak. During the conversation Guido asked Judy for the account number of their joint account in Springfield, Missouri. Although Guido had separate accounts in his own name, Judy did not have a card indicating the number of any of those accounts. Judy took from her purse a card bearing an account number which she thought was their joint account. Actually the account number was that of an account held jointly by Judy and her teenage son. The funds were transferred from the bank in Rome to Springfield, and were placed in the account of Judy and her son. The “wire transfer,” received into evidence as Guido’s Exhibit D, showed that the funds were to be transferred to the joint account of Guido and Judy, although the wrong account number was given.

Under the antenuptial agreement, in the event either Judy or Guido filed an action for dissolution, each was entitled to receive “one-half of all money in joint accounts and/or one-half of all jointly titled investments as the value exists on the date of such filing.” Immediately prior to filing the divorce action, Judy paid Guido one-half of the inheritance. It is the other half, retained by Judy, to which Guido addresses his defective first point.

Guido argues that the trial court should have determined that he was entitled to all of the inherited sum. This argument ignores the provision of the antenuptial agreement requiring that joint accounts be divided equally. The wire transfer order evidenced the intent of Guido that the funds be deposited in such an account. Only Guido spoke with the banker who handled the transfer. By innocent mistake the funds were deposited in the wrong account, but Judy did not seek to profit from that mistake and gave Guido the one-half to which he was entitled under the ante-nuptial agreement.

[332]*332Guido’s argument is based, to some extent, upon his own version of the transaction in the bank at Rome. Judy’s version conflicted with Guido’s. The judgment of the trial court includes this statement: “The court believes the testimony of [Judy] presented at the trial.” This court defers to that finding. See Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Throughout this proceeding, Guido has taken the position that the antenuptial agreement is valid. The distribution of Guido’s inheritance was in accordance with the agreement. Guido’s first point, even if it had been properly preserved, has no merit.

Guido’s second point is that the trial court erred in awarding Judy $3,000 as maintenance in gross, and maintenance in the amount of $700 for 18 successive months “for the reason that [Judy] failed to present evidence that she was unable to locate employment to become self supporting.” Guido makes no claim that the ante-nuptial agreement was a bar to the maintenance award.

“Section 452.335 grants to the trial courts wide latitude in decreeing spousal maintenance.” Doerflinger v. Doerflinger, 646 S.W.2d 798, 800[2] (Mo. banc 1983).

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Bluebook (online)
794 S.W.2d 329, 1990 Mo. App. LEXIS 1279, 1990 WL 120168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/podrecca-v-podrecca-moctapp-1990.