Wilson v. Wilson

642 S.W.2d 132, 1982 Mo. App. LEXIS 3276
CourtMissouri Court of Appeals
DecidedNovember 9, 1982
DocketNo. WD 33060
StatusPublished
Cited by6 cases

This text of 642 S.W.2d 132 (Wilson v. Wilson) 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
Wilson v. Wilson, 642 S.W.2d 132, 1982 Mo. App. LEXIS 3276 (Mo. Ct. App. 1982).

Opinion

NUGENT, Presiding Judge.

Hildegard Wilson appeals from the order of the trial court which dissolved her marriage to Paul Wilson, divided the marital property and awarded child support and custody of the parties’ minor daughter to Mrs. Wilson. She challenges both the trial court’s finding that the couple’s property at 1306 Bradshaw was marital property and not a gift to her, and the award of $125 per month for child support. We reverse as to the Bradshaw property and affirm the order of child support.

The parties were married June 5, 1965, and lived in a house on Bluffdale Drive in Columbia, Missouri, owned by Mrs. Wilson. A child, Ginger, was born in January, 1967. In 1968, the couple traded the house for the property at 1306 Bradshaw and took ownership as tenants by the entirety. Mrs. Wilson’s equity in the Bluffdale property was $9,000 at the time of the trade. In May, 1977 the Bradshaw house was entirely paid off with funds held in a joint savings account to which both parties contributed. [134]*134Both parties were employed during the entire marriage with the exception of a five-month period after Ginger was born, in which Mrs. Wilson remained at home.

In 1977, Mr. Wilson suggested conveying his interest in the house to Mrs. Wilson in a quit-claim deed. He stated at trial that he did so

because I knew it meant a lot to Hilde. She liked to say “this is mine”. She liked to have her name on it. I thought the marriage was a permanent thing, I was willing to do anything to make her happy. At the same time, I also wanted her to take a more positive interest in Ginger, and I thought I could work an agreement with her, so that’s it.

Mr. Wilson further testified that he did not intend to make a gift when he executed the deed. He intended to make an agreement with Mrs. Wilson that if she would pay more attention to Ginger, he would sign the property over to her. Mrs. Wilson denied the existence of such an agreement.

One year after Mr. Wilson first suggested the conveyance, Mrs. Wilson agreed and obtained the necessary deed. Mr. Wilson testified that he signed it, had it notarized, returned home with it and delivered it to Mrs. Wilson who accepted it. The deed shows it was executed July 20, 1978, and recorded July 26, 1978.

The Wilsons did not separate until 1980. After a trial upon Mrs. Wilson’s petition and Mr. Wilson’s cross-bill for dissolution the trial court found on July 13, 1981, that the marriage was irretrievably broken and ordered the marriage dissolved. Mrs. Wilson was awarded custody of Ginger and $125 per month child support. The court found that the July 20, 1978, quit-claim deed “was procured by duress and coercion to-wit: A promise by petitioner that she would spend more time with minor child and was not a gift by respondent.” The court ordered, inter alia, that the house be sold by the sheriff at public auction and the proceeds and expenses divided equally.

In reviewing a decree of dissolution, we must affirm the trial court unless it is against the weight of the evidence, it is unsupported by the evidence, or it erroneously declares or applies the law. Rasmussen v. Rasmussen, 627 S.W.2d 117 (Mo.App.1982).

In her first point on appeal, Mrs. Wilson charges that no evidence supported the trial court’s conclusion that Mr. Wilson was subjected to duress and coercion, and that, therefore, the conveyance was a gift and the Bradshaw property is not marital property.

Section 452.330.31 provides that “all property acquired by either spouse subsequent to the marriage ... is presumed to be marital property regardless of whether title is held individually or ... in some form of coownership .... ” This presumption can be overcome, however, by a showing that the property was acquired by any method listed in § 452.330.2, including by “gift, bequest, devise, or descent”.2

The burden was on Mrs. Wilson, then, to establish the essential elements of a gift: donative intent, delivery of the property to the donee by the donor, and acceptance by the donee whose ownership takes effect immediately and absolutely. Gross v. Gross, 625 S.W.2d 655, 662-63 (Mo.App.1981). Delivery by deed to Mrs. Wilson and acceptance by her are uncontested and were, in fact, specifically conceded by Mr. Wilson in his trial testimony. The sole issue is donative intent.

Although Mr. . Wilson now denies that he intended to make a gift of his interest in [135]*135the house to his wife, his conduct speaks differently. Conduct is an enlightening ingredient in discerning intent. In re Estate of Hoffman, 490 S.W.2d 98, 103 (Mo.1973).3

Mr. Wilson testified that he conveyed the property because he was willing to do anything to make Mrs. Wilson happy and he knew ownership in her name would mean a lot to her. Although at trial he carefully avoided referring to the transaction as a gift, he made no claim that he did not intend for her to have the property, or that it was intended to be temporary, or that the deed carried any meaning other than that Mrs. Wilson was to own the property.

The only reasonable interpretation of Mr. Wilson’s conduct is that on July 20,1978, he intended to transfer the property to Mrs. Wilson. The trial court made no specific finding as to donative intent but apparently found that if any such intent did exist, it was negated by the “duress and coercion” accompanying the transfer. Our review, then, is limited to whether the evidence supports such a conclusion.

The cancellation of a deed is an extraordinary remedy which cannot be authorized unless it is warranted by clear, strong, and convincing evidence. Nichols v. Wirts, 270 S.W.2d 801, 805 (Mo.1954); Dreckshage v. Dreckshage, 352 Mo. 78, 176 S.W.2d 7, 14 (1943).

Duress, of course, may provide the basis for cancellation of a deed, but in determining whether the duress is sufficient to warrant this remedy, “the question is: was the person acted upon by threats by the person claiming the benefit of the contract ... as to be bereft of the quality of mind essential to the making of the contract ... [and] bereft of the free exercise of his will power ... ”? Coleman v. Crescent Insulated Wire and Cable Co., 350 Mo. 781, 168 S.W.2d 1060 (1943) (emphasis added).

Threats by another, then, may constitute duress, as may “constraint or compulsion which is sufficient to overcome the will of a person of ordinary firmness and to induce him to comply with a demand to which he would not have yielded if he had been permitted to act of his own volition. ” Schoen v. Lange, 256 S.W.2d 277, 282 (Mo.App.1953) (emphasis added). Whether the definition is phrased in terms of a “threat” or a “demand”, then, the duress clearly must be caused by the conduct or words of another.

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Bluebook (online)
642 S.W.2d 132, 1982 Mo. App. LEXIS 3276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-wilson-moctapp-1982.