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In re Marriage of Raymond J. Tullier3/17/1999
he dissolution, such proof would have been futile because of the way Raymond handled the 1990 recovery. This court has held:
"The placing of separate property of a spouse into the joint names of both spouses creates a presumption that the property transferred becomes marital property, and clear and convincing evidence is required to show that the transfer was not intended as a gift. Spidle v. Spidle, 853 S.W.2d 311, 314 (Mo.App. S.D. 1993); Stephens v. Stephens, 842 S.W.2d 909, 913 (Mo.App. S.D. 1992); Hankins v. Hankins, 823 S.W.2d 161, 162 (Mo.App. W.D. 1992)."
In re Marriage of Jennings, 910 S.W.2d 760, 763 (Mo.App. S.D. 1995).
In the instant case the trial court found Raymond deposited the balance of the 1990 recovery in the Merrill Lynch account -- an asset owned by Raymond and Elizabeth as joint tenants with right of survivorship. The trial court further found the parties used the account for joint living expenses.
Raymond does not challenge those findings. Under Jennings, 910 S.W.2d at 763 , those findings gave rise to a presumption that the 1990 recovery became marital property. Raymond presented no evidence to rebut that presumption.
Raymond's second point, presented as an alternative to his first, avers the trial court erred in dividing the marital property equally. According to Raymond, that ruling "was inequitable and contrary to ['] 452.330.1 . . . in that [Elizabeth] had squandered, secreted, and misused marital funds, had purchased a residence in Berryville, Arkansas, had had an affair with her boyfriend, had told [Raymond] of her thoughts of killing him, and in that [Raymond] was a disabled spouse."
Raymond emphasizes that one of the statutory factors a trial court must consider in dividing marital property is the conduct of the parties during the marriage. ' 452.330.1(4), RSMo Cum. Supp. 1997. Raymond insists that Elizabeth's misconduct ---mandated an award to him of a greater share of the marital property.
Elizabeth's purchase of the Berryville house is recounted earlier in this opinion. Raymond testified Elizabeth paid $87,500 for it. The $87,500 apparently came from the $100,000 "margin loan" Elizabeth obtained from the Merrill Lynch account.
Apart from Raymond's testimony that he considered $60,000 a "fair price" for the house, there was no evidence that $87,500 was an inflated price. Thus, the trial court could have reasonably found the evidence showed, at most, that Elizabeth may have "squandered" only $12,500 of the $100,000 "margin loan." While that is a sizable sum, it is but two percent of the $531,000 marital estate.
The trial court could also have reasonably found Elizabeth "squandered" none of the $12,500. There was evidence that Elizabeth was not employed after August 1990, hence the trial court could have inferred Elizabeth used the $12,500 for living expenses while separated from Raymond.
As to Elizabeth's affair with her "boyfriend," the nebulous evidence indicates the affair may have occurred during one of the parties' separations. The evidence does not reveal the duration of the affair; however, it is inferable that Elizabeth and Raymond resumed cohabitation after the affair.
Testimony that Elizabeth thought about killing Raymond came from Raymond. He recounted that Elizabeth told him she was concerned that he would commit suicide. He also testified that after she left him "the first time," she came back and told him she had paced his bedroom floor many times while he was asleep, wondering how she could kill him and "get away with it."
The trial court, of course, was not compelled to believe Raymond's testimony. In
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