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July 12, 1983


From the Circuit Court of St. Louis County; Civil Appeal; Judge Herbert Lasky; Reversed and Remanded

Before Simon, P.j., Stephan, Karohl, JJ.

The opinion of the court was delivered by: Karohl

In this dissolution of marriage action, appellant-husband challenges the trial court's designation and distribution of property and award of attorney's fees to respondent-wife. We reverse and remand.

The parties were married in 1957 and had no children. At the time of the dissolution, in 1982, the parties were both self supporting. No maintenance was granted. Appellant filed the original petition in 1977, but did not obtain service upon respondent until 1979. The parties apparently attempted several unsuccessful reconciliations between the time of filing and the time of service although they disputed the date of final separation. Both respondent and appellant acknowledged having an extramarital relationship, respondent's beginning in 1976, and appellant's beginning in 1979.

According to the trial court's findings of fact and the decree, respondent received $73,000 in separate property and $109,155 in marital property, while appellant received $231,000 in marital property.

Appellant contends that the trial court erred by: (1) designating certain marital property as respondent's separate property; (2) finding that appellant had an interest in real estate titled in his brother's name but labeled marital property; (3) finding that real estate appellant purchased in a partnership was marital property and awarding the total value of the assets to appellant; (4) awarding appellant marital assets at gross value rather than at net value; (5) not distributing the balance of a savings account held by respondent; and (6) ordering appellant to pay respondent's attorney's fees and costs.

Although the trial court is vested with broad discretion in dividing the marital property, Klinge v. Klinge, 554 S.W.2d 474, 477 (Mo.App. 1977), we reverse in that the property division was not supported by substantial evidence and the trial court misapplied the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).

The trial court found that a home located at 2151 Erick in St. Louis was respondent's separate property, and that the family home at 2118 69th Street was half respondent's separate property and half marital property, awarding it to respondent. Section 452.330.1 *fn1 mandates a determination and award of separate property to its owner. Separate property includes property owned before marriage and maintained in separate names during the marriage, property acquired during marriage solely from an exchange of premarriage property and separately retained, any increase in the value of separate property, a gift or inheritance received and separately held, and property described in §§ 452.330.2(3) and (4).

Under the statute in effect when appellant filed the petition, § 452.330.3 RSMo 1978, all property acquired by either spouse subsequent to the marriage except separate property as defined in § 452.330.2 was presumptively marital property. The propohent of separate property has the burden of proving premarriage ownership, gift or inheritance. C.B.H. v. R.N.H., 571 S.W.2d 449, 456 (Mo. App. 1978).

The parties purchased the family home at 2118 69th Street in 1958 for $10,250. It was valued at $15,500 at the time of trial and was owned by the parties by the entireties. Respondent's mother financed the down payment by a $3,000 gift to both parties. They borrowed $7,000 from respondent's grandfather to pay the balance and had repaid $5,200 from marital funds at the time of respondent's grandfather's death, leaving a balance of $1,800. Respondent and her mother each inherited half of the grandfather's estate. By agreement with respondent's mother, the parties cancelled the remaining $1,800 due on the loan. The loan was satisfied by $900 that respondent inherited and by a $900 gift from respondent's mother.

On these facts the court erred in finding that one-half of the real estate was respondent's separate property. Although the down payment was a gift, it was made to both parties. A gift to both spouses is presumed to be marital property. Forsythe v. Forsythe, 558 S.W.2d 675, 678 (Mo.App. 1977). The proof to overcome this presumption must be so clear that no reasonable doubt can be entertained of its truth, and the evidence must be so cogent and compelling as to exclude reasonable doubt from the trial court's mind. Conrad v. Bowers, 533 S.W.2d 614, 620 (Mo.App. 1975). There was no such proof here.

Further, the property was acquired during the marriage, in joint names, and paid for in part by a jointly received gift and in part by the parties' income. Property acquired after the marriage and placed in joint names is presumed to be marital property. Hebron v. Hebron, 566 S.W.2d 829, 832 (Mo.App. 1978). The $1,800 respondent received by inheritance and gift became part of the jointly owned real estate by her act and was therefore marital. A spouse may by agreement, either express or implied, or by gift, transmute an item of separate property into marital property. Daniels v. Daniels, 557 S.W.2d 702, 704 (Mo.App. 1977). See Conrad v. Bowers, 533 S.W.2d 614, 622 (Mo.App. 1975).

Respondent also inherited one-half interest in her grandfather's home at 2151 Erick. The home was worth $5,000 at the time of estate distribution. Respondent credited her mother, the other beneficiary, with $2,500 from the estate in order to take the entire house. Respondent's mother and stepfather then executed a quitclaim deed transferring their interest in the house to respondent and appellant. The property was therefore one-half respondent's separate property by inheritance and one-half marital property received by deed in joint names. See Forsythe v. Forsythe, 558 S.W.2d 675, 678 (Mo.App. 1975). See also In re Marriage of Kinnick, 621 S.W.2d 104 (Mo.App. 1981) (where husband got half of 80 acre tract of land by gift and purchased remaining half from siblings, trial court properly found that half of the tract was marital and the other half was the husband's non-marital property).

During the extended period of separation, appellant participated in the purchase of real estate at 2353 Rockdale that was acquired in his brother, third party respondent Carl D. Weast's, name. The trial court found that appellant and respondent had an equitable marital interest in the property. Appellant negotiated the purchase, supplied the down payment from marital funds, occupied the premises, and made all of the payments on the two deeds of trust. When appellant's brother testified, he was unable to ...

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