Tracy v. Tracy

791 S.W.2d 924, 1990 Mo. App. LEXIS 954, 1990 WL 84463
CourtMissouri Court of Appeals
DecidedJune 21, 1990
Docket16263
StatusPublished
Cited by13 cases

This text of 791 S.W.2d 924 (Tracy v. Tracy) 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
Tracy v. Tracy, 791 S.W.2d 924, 1990 Mo. App. LEXIS 954, 1990 WL 84463 (Mo. Ct. App. 1990).

Opinion

HOGAN, Judge.

In this action for dissolution of marriage, petitioner Virginia Rose Tracy, to whom we shall refer as the plaintiff, appeals from that part of the amended decree which set apart to each spouse his separate property and divided the marital property as required by § 452.330.1, RSMo 1986. 1

The parties were married in 1978. They were finally separated July 24, 1988. At trial time the plaintiff was 65 years of age. She was afflicted with rheumatoid arthritis, *926 which affects her “whole body.” The respondent, to whom we shall refer as the defendant, was nearly 70 years old when the case was tried. His health was also poor; he had degenerative arthritis and a stomach ulcer. The defendant has apparently been a very successful businessman. He testified that he had accumulated assets worth “around $330,000” when he married the plaintiff. Plaintiff, by contrast, received a Social Security payment in the amount of $243 per month and had “about $1,900 or $2,000” which she had inherited at the time the parties were married. There is evidence that both plaintiff and defendant had previously been married at least once.

The parties’ marriage was not a happy marriage. During the course of the trial, each party accused the other of misconduct, including marital infidelity. The trial court heard evidence on October 28, 1988, and thereafter prepared and filed an extensive decree setting out the parties’ property rights and dividing their separate and marital property. Plaintiff filed an alternative motion for new trial or to amend the judgment and opinion as permitted by Rule 73.01(a)(3) and the trial court heard evidence and argument on this motion on February 16, 1989. On March 9, 1989, the trial court amended its decree.

The plaintiff has briefed and argued three assignments of error in this court. The substance of those assignments is that the trial court erroneously determined that the family residence was not entirely marital property and erroneously determined that the proceeds of a $50,000 loan obtained upon the security of the marital residence were the defendant’s separate property. These erroneous determinations, plaintiff argues, have resulted in a manifestly unfair and inequitable division of the parties’ marital assets. We realize that we are obliged to affirm the decree unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Hoffmann v. Hoffmann, 676 S.W.2d 817, 822[1] (Mo.banc 1984); Murphy v. Carron, 536 S.W.2d 30, 32[1—3] (Mo.banc 1976). Although we have considerable respect for the trial court’s judgment, our review of the record has generated a firm belief that the decree is in part against the weight of the evidence and that the law has been erroneously applied. Believing the record is fully developed, we give such judgment as the trial court should have given, as authorized by Rule 84.14.

I

We have first to consider whether the parties’ residence should have been classified as marital property. The plaintiff’s trial theory was that the residence was marital property because title to the property was taken by the parties as tenants by the entirety when it was purchased. The defendant’s trial theory was that the residence was his separate property because it was purchased and improved with his separate funds. The trial court found that the residence was in part a nonmarital asset and in part a marital asset. We have concluded that the residence should have been classified as marital property.

(a)

The principles to be applied in classifying the residence as marital or nonmari-tal property are familiar. Our courts have consistently held that when real estate is purchased by the husband and deeded to both the husband and wife as tenants by the entirety, a presumption arises that the husband intended to make a gift to or a provision for the benefit of his wife. Dallmeyer v. Dallmeyer, 274 S.W.2d 250, 254 (Mo.1955); Gaede v. Smith, 354 Mo. 738, 741, 190 S.W.2d 931, 932 (Mo.1945); Hiatt v. Hiatt, 168 S.W.2d 1087, 1090[7-9] (Mo.1943). In such cases and in cases where the husband pays the purchase price and causes title to the property to be transferred to his wife, the husband has the burden to show by clear and convincing evidence that he did not intend to make a gift to or provision for his wife. Hampton v. Niehaus, 329 S.W.2d 794, 799 (Mo.1959); Hebron v. Hebron, 566 S.W.2d 829, 832 (Mo.App.1978). Of course, Missouri adopted a *927 version of the Uniform Marriage and Divorce Act in 1973. Laws of Mo. 1973, H.B. 315. Section 452.330.2(2) provides that property acquired in exchange for property acquired prior to the marriage is considered to be nonmarital property. Section 452.330.3, in material part, provides that all property acquired by either spouse subsequent to the marriage is presumed to be marital property whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. Section 452.330.3 further provides that the presumption that all property owned by either spouse is marital property is overcome by a showing that the property was acquired by a method listed in subsection 2 of § 452.330.

In Conrad v. Bowers, 533 S.W.2d 614 (Mo.App.1975), the court considered the impact of the quoted part of subsection 3 of § 452.330 upon the common law rule that when title to real estate is taken in the name of husband and wife, even though the husband furnishes the consideration, it is presumed that the husband intended the conveyance as a provision for or a settlement upon his wife and no trust results in favor of the husband. The court held that the General Assembly did not intend to overrule the common law presumption of settlement or gift which is created by joint titling. Rather, the court concluded:

“... We believe, rather, that the general assembly intended that all property acquired subsequent to the marriage taken in joint names of husband and wife is marital property subject to division upon dissolution, unless (1) it is shown that the property acquired subsequent to the marriage was acquired in exchange for property acquired prior to the marriage and (2) it is shown by clear and convincing evidence that the transfer was not intended as a provision for a settlement upon or as a gift to the other spouse.” (Emphasis in original.)

Conrad v. Bowers, 533 S.W.2d at 622. We consider the holding of the Conrad case to be sound law today and believe it is applicable to the case at hand. We do not overlook Hoffmann v. Hoffmann,

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Bluebook (online)
791 S.W.2d 924, 1990 Mo. App. LEXIS 954, 1990 WL 84463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tracy-v-tracy-moctapp-1990.