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In re Marriage of Miller

Court of Appeals of Missouri, Southern District, Second Division

March 20, 2015

In re the Marriage of Tunde Miller and Laurel Jim Miller TUNDE MILLER, Petitioner-Respondent,
v.
LAUREL JIM MILLER, Respondent-Appellant

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY. Honorable Michael J. Cordonnier, Circuit Judge.

For Appellant: Randy J. Reichard of Springfield, MO.

Respondent Acting Pro se, Tunde Miller of Ozark, MO.

Nancy Steffen Rahmeyer, P.J. - Opinion Author. Gary W. Lynch, J. - Concurs. Don E. Burrell, J. - Concurs.

OPINION

Page 301

Nancy Steffen Rahmeyer, P.J.

Laurel Jim Miller (" Husband" ) and Tunde Miller (" Wife" ) were married in December 1995, and granted a dissolution in February 2014. Husband brings this appeal asserting that a Fidelity IRA was improperly classified as marital property; he claims that he was prejudiced by the misclassification because " it is clear the trial court intended to divide the marital assets of the [parties'] property equally." We find no error and affirm the judgment.

We affirm the trial court's decree " unless it is not supported by substantial

Page 302

evidence, is against the weight of the evidence, erroneously declares the law, or misapplies the law." Glenn v. Glenn, 345 S.W.3d 320, 325 (Mo.App. S.D. 2011). " The party challenging the decree has the burden of demonstrating error." Id. (internal quotations and citations omitted). " A trial court is free to believe or disbelieve all, part or none of the testimony of any witness." Id. (internal quotations and citations omitted). Further:

" A trial court possesses broad discretion in identifying marital property." Absher v. Absher, 841 S.W.2d 293, 294 (Mo.App. E.D.1992). Under Missouri law, property acquired by either spouse during the marriage is presumed marital property, but this presumption may be overcome by a showing that the property is non-marital. See Sections 452.330.2, 452.330.3. " [T]he burden is on the spouse who claims that the property is separate to overcome the presumption of marital property and show that it falls into one of the exceptions listed" in Section 452.330.2[.] Kahn v. Kahn, 839 S.W.2d 327, 332-33 (Mo.App. E.D.1992) (quoting True v. True, 762 S.W.2d 489, 492 (Mo.App. W.D.1988)). The complaining party must prove that the property is separate property by clear and convincing evidence. Comninellis v. Comninellis, 99 S.W.3d 502, 507 (Mo.App. W.D.2003).

Thorp v. Thorp, 390 S.W.3d 871, 876 (Mo.App. E.D. 2013).

The trial court found:

The respondent also has a Fidelity IRA that is comprised of several IRA's that were accumulated both before and during the marriage. No evidence was presented in the nature of an accounting to provide any methodology by which this court can determine how much, if any, of said Fidelity IRA is husband's non-marital property. The burden being on husband on this issue, the ...

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