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10/05/93 JUDY REYNOLDS v. DALE REYNOLDS

October 5, 1993

JUDY REYNOLDS, APPELLANT,
v.
DALE REYNOLDS, RESPONDENT.



Appeal from the Circuit Court of Jefferson County, Missouri. Hon. Gary P. Kramer, Judge.

Gary M. Gaertner, Chief Judge, Simon, J., Pudlowski, J., concur.

The opinion of the court was delivered by: Gaertner

Appellant, Judy Reynolds, appeals from a dissolution order of the Circuit Court of Jefferson County, Missouri. Appellant contends the trial court erred in failing to set aside her separate property as specified in a written pre-nuptial agreement.

We reverse and remand.

On January 11, 1985, appellant Judy Reynolds (hereinafter "wife"), and respondent Dale Reynolds (hereinafter "husband"), entered into a written pre-nuptial agreement. The agreement stipulated that both parties would retain their separate property in case of divorce. Concerning a house wife was part-owner of, the agreement provided:

Both parties acknowledge and represent: that has 60% ownership in the residence known as and numbered 4924 Ardeth, St. Louis County, Missouri, . . . that 's equity in said residence approximates $37,200 . . . In the event said residence is sold and 's equity, or any part thereof, is invested in another residence, that sum shall remain the exclusive, sole and separate property of . . . .

Wife and husband were married the next day. Wife sold the Ardeth house and contributed $25,999.77 of the proceeds to purchase the couple's new home at 1470 Royal Spring. The parties later sold this home, gaining net proceeds of $64,220.00, $58,596.31 of which was used to purchase the parties' last residence, 17258 Lost Cabin Road. *fn1 Both parties secured individual loans amounting to nearly $20,000 each, which were applied to the purchase of the home. Additionally, over $5,000 was contributed from joint assets. The couple also took out a mortgage in the amount of $187,500. In all, the property reflected an investment of over $291,000.

On November 1, 1990, the parties separated. Wife moved into an apartment, paying $550 per month in rent. Husband continued to live in the Lost Cabin residence, paying the monthly mortgage of $1,933. During this time, husband paid $1,638 for repair of the driveway, $210 for an appraisal, and $947 for new carpeting.

The marriage was dissolved on June 17, 1992. At the dissolution hearing, the trial court found the pre-nuptial agreement to be "a valid and enforceable agreement . . . and to the extent that any items of separate property mentioned therein as the respective separate property of the parties still exist, they are set aside as the separate property of the parties, as provided in said 'Pre-Nuptial Agreement'."

The Court ordered the Lost Cabin Road residence sold *fn2 and directed that the proceeds be distributed in the following order: 1) payment of the mortgage and other costs related to the sale; 2) reimbursement to husband of one-half of the monthly mortgage payments of $1933 ($966.50) which he would pay from the date of dissolution until the Lost Cabin Road residence was sold; 3) payment of 54.05% of the remainder to wife, and 45.95% to husband. The property was sold on September 28, 1992, for a sum of $269,900. After payment of the mortgage and all sales-related costs, an amount of $64,227.72 remained. Husband received $3,866.00 as reimbursement for mortgage payments, and $27,736.21 as his portion of the settlement (45.95% of the remainder). Wife received $32,625.51 (54.05% of the remainder).

The sole issue raised on appeal is whether the trial court's property division properly reflected the parties' pre-nuptial agreement. Wife claims the Court's division was in violation of RSMo § 452.330.1 (Cum. Supp. 1992), which states in pertinent part:

In a proceeding for dissolution of the marriage or legal separation, . . . the court shall set apart to each spouse his non-marital property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors . . . .

Wife contends the trial court erroneously failed to consider that equity from the Ardeth house, which she invested in the Lost Cabin residence, was her separate property.

We note that review of a non-jury case is controlled by Rule 73.01(c); that is, the court's judgment will be sustained 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 ...


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