                                        In the
                        Missouri Court of Appeals
                                Western District
 CARLA E. UMLAND,                           )
                                            )
               Respondent,                  )   WD81994
                                            )
 v.                                         )   OPINION FILED:
                                            )   November 19, 2019
 LIZABETH G. GRAHAM,                        )
                                            )
                Appellant.                  )

               Appeal from the Circuit Court of Clay County, Missouri
                       The Honorable Shane T. Alexander, Judge

Before Division Three: Alok Ahuja, Presiding Judge, Gary D. Witt, Judge and Anthony
                               Rex Gabbert, Judge


       Appellant Lizabeth Graham ("Graham") appeals the judgment of the Circuit Court

of Clay County in an action to partition property held jointly with her partner, Carla

Umland ("Umland"). Graham alleges that the circuit court erred when it failed to properly

credit her for the down payment she made towards the purchase of the home, failed to

account for a period of time in which she was solely responsible for the payment of the

mortgage, and in finding the parties jointly responsible for the balance of a home equity

line of credit. We affirm.
                                          Factual Background1

        Graham and Umland began living together in the fall of 1994 at Graham's residence,

located at 8871 E. 52 Terr., Kansas City, Missouri ("8871 Property"). From the fall of

1995 until at least January 2016, they committed themselves to live together as a married

couple, including to emotionally and financially support one another, living together

through retirement until death. This included a proposal and exchange of rings, although,

at the time, the State of Missouri did not allow same-sex couples to marry. Beginning in

at least 1998, the parties began contributing both of their incomes into a joint bank account

from which their joint household and personal expenses were paid. Most of their joint

expenses, including the mortgage payment, utilities, and investments, were paid from the

joint account until it was closed by Graham in September 2016.

        In January 1999, the couple purchased a residence, commonly known as 2301

Redbud Drive, Liberty, Clay County, Missouri ("Redbud Property"), titled to them as joint

tenants with the right of survivorship and subject to a mortgage in both of their names.

Graham contributed $50,000.00 to the down-payment on the property, which was derived

from the sale of the 8871 Property titled solely to Graham. The payments and obligations

secured by the Redbud Property were paid from joint earnings until at least 2013, when

Umland left her employment at Proctor and Gamble.

        After Umland ceased working for Proctor and Gamble, the parties agreed that

Umland would form and operate two business entities, All Trades Home Maintenance and


        1
         "We view the evidence and all reasonable inferences from the evidence in the light most favorable to the
judgment." Holt v. Rankin, 320 S.W.3d 761 S.W.3d 761, 763 n. 3 (Mo. App. W.D. 2010).

                                                        2
Repair, LLC and Aden Fire and Safety, LLC. The businesses were solely owned by

Umland to shield the couple's joint assets, but they were to be operated for the couple's

joint benefit. The parties jointly obtained a home equity line of credit ("HELOC") to cover

the startup costs and business expenses. The HELOC was secured by a Second Deed of

Trust on the Redbud Property. The original credit limit on the HELOC was $90,000. Due

to business losses, the parties later increased this limit to $170,000. The businesses

ultimately proved to be unsuccessful. At the time the Redbud Property was sold the

HELOC was paid in full in the sum of $98,000.

         The couple shared various other accounts held as joint tenants with the rights of

survivorship as well as bank accounts and retirement accounts held individually. They also

held title jointly to several motor vehicles and trailers. On September 19, 2002, Graham

and Umland entered into an "Estate Plan and Revocable Trust of Lizabeth G. Graham and

Carla E. Umland," which provided, among other things, that "all property subject to this

Trust during the joint lives of the Grantors shall be beneficially owned by them Tenants by

the Entirety." The division of these assets are not at issue in this appeal.2 Additionally, the

couple shared one daughter, an adult at the time of the trial.

         The court entered its Judgment on May 10, 2018 ("Judgment"). After dividing all

of the assets, the trial court ordered Graham to pay Umland a payment of $272,005.00 in

order to equalize the division of assets. As relevant to this case, the court found that the

net proceeds from the sale of the Redbud Property should be divided equally between the


         2
           Because the division of these assets is not the subject of this appeal, we do not address whether unmarried
persons can legally attempt to title assets as tenants by the entirety. These assets were in fact held in the name of the
trust and divided pursuant to its terms.

                                                           3
parties. Further, the court found that the HELOC, which was secured by the Redbud

Property, was a joint debt for which both parties were equally responsible, and therefore,

was equally considered toward each party in the final division of the assets. This appeal

followed.

                                             Standard of Review

         "A partition action is a court tried action and is thus reviewed pursuant to
         Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976)." Hoit v. Rankin, 320
         S.W.3d 761, 765 (Mo. App. W.D.2010). "'[W]e will sustain the judgment of
         the trial court unless there is no substantial evidence to support it, it is against
         the weight of the evidence, or it erroneously declares or applies the law.'" Id.
         (quoting Clark v. Dady, 131 S.W.3d 382, 386 (Mo. App. W.D.2004)). "We
         defer to the trial court's findings of fact because of its superior ability to
         assess the credibility of witnesses." Id.

Felderman v. Zweifel, 346 S.W.3d 386, 388 (Mo. App. W.D. 2011).

                                                    Discussion

         In her sole point on appeal, Graham raises three allegations of error generally related

to the division of the net proceeds from the sale of the Redbud Property. The Redbud

Property was sold in 2017, during the pendency of these proceedings, resulting in

$145,315.88 net cash proceeds from the equity in the property.3 Graham alleges first that

the circuit court erred in failing to give her credit for a $50,000 down-payment she made

towards the purchase of the Redbud Property because this payment was derived from the

sale of Graham's home, the 8871 Property, in which Umland had no ownership interest.

Second, that the court erred in failing to give her credit for $36,918 in mortgage payments



         3
            By agreement of the parties to this action, the proceeds are held in counsel's trust account pending the
finality of this litigation. Originally there were additional parties to this action, who were dismissed by agreement of
the parties prior to trial and are not subject to this appeal.

                                                           4
that she made from May of 2013 until July of 2017, or at least credit her with the reduction

in the principal amount of the mortgage during this period because these payments were

made either after Umland was self-employed and not contributing to expenses or after the

relationship had ended. Third, that the court erred in failing to give Graham credit for the

$98,000 HELOC on the Redbud Property because the parties had agreed that Umland was

to be solely responsible for this debt.

       As to the first two allegations of error, the circuit court found that Graham

demonstrated a donative intent in making the down-payment on the home and in making

these additional payments towards the mortgage. The Redbud Property was jointly

purchased by the parties, the property was titled in joint names and the mortgage was a

joint responsibility entered into by both parties. There is a presumption that, when a deed

is silent, co-tenants hold equal ownership shares in the property. Hoit v. Rankin, 320

S.W.3d 761, 772 (Mo. App. W.D. 2010). "[U]nequal contributions may be explained by

evidence that the co-tenant contributing a greater amount toward purchase intended the

disparity as an enforceable gift, a determination which may be influenced by evidence of

the nature of the relationship [between] the co-tenants." Felderman, 346 S.W.3d at 389

(quoting Hoit v. Rankin, 320 S.W.3d 761, 772 (Mo. App. W.D. 2010)). "Evidence of a

relationship between co-tenants suggestive of donative intent is relevant evidence. . . ." Id.

       In Felderman, the defendant purchased a property and then invited his ex-wife to

move to Missouri and live with him on the property. Felderman, 346 S.W.3d at 388.

Following the move, the defendant executed a Warranty Deed to himself and his ex-wife

as joint tenants with the right of survivorship. Id. The defendant testified at trial that his

                                              5
ex-wife had paid nothing for the property, and when he executed the deed, he did so with

the understanding that she would sell a property she owned in New Mexico and pay for

half of the original purchase price, although ultimately she paid nothing and had "very

little, if any, money invested" in the property. Id. at 389. The court, however, found the

defendant had invited his ex-wife to come and live on the property and that he had promised

her that he would deed half of the property to her. Id. at 390. The couple cohabitated on

the property for eighteen months. Id. The circuit court found ex-wife's testimony more

credible on the issue of donative intent, and this Court deferred to that determination. Id.

Accordingly, this Court affirmed the circuit court's finding of donative intent and a joint

tenancy interest, despite ex-wife having made little, if any, contribution to the property. Id.

         In this case, the relationship between the parties was significantly stronger than that

in Felderman. Both Umland and Graham testified that they lived together in a marriage-

like relationship for several years prior to the sale of the 8871 Property and the purchase of

the Redbud Property. The couple gave birth to a child4 the same year that they sold the

8871 Property and purchased the Redbud Property. They opened a joint bank account, and

Graham would pick up paychecks for both she and Umland and deposit the checks in the

joint account. That joint account was used to pay household expenses including the

mortgage secured by the 8871 Property. While Graham owned the 8871 Property prior to

the relationship and it was titled in her name individually, Umland testified that she was

responsible for substantial renovations to the home including removing and installing new


         4
           Umland gave birth to a daughter by artificial insemination in 1998. Graham could not legally adopt the
child at the time of her birth but did so in 2008, when it became legal for same sex couples to adopt in the State of
Missouri.

                                                           6
carpeting, tiling the basement, installing sinks and faucets, painting both the interior and

exterior of the home, and ultimately preparing the house to be sold. Umland testified the

8871 Property was sold for approximately $90,000, and there was approximately $30,000

left on the mortgage. Graham believed the net profit from the sale of the 8871 Property

was between $50,000 and $55,000. Graham took $50,000 of the net proceeds and placed

a down-payment on the Redbud Property. According to Umland's testimony, there was no

discussion that the $50,000 would be returned if the relationship failed while Graham

testified that she said at the time, "[i]f anything happens" she wanted the $50,000 down-

payment back. Umland testified that with respect to the ownership of the Redbud Property

"[w]e discussed it would be equal. Everything was equal."

       In contrast to Felderman, Graham cites to several cases where the court, in dividing

the property, did just what Graham advocates, allocated proceeds of the sale of real estate

based on the percentage of each parties contribution. For example, Graham relies on

Williams v. Williams, 990 S.W.2d 665 (Mo. App. E.D. 1999). In Williams, husband and

wife were divorced in 1973, but the marital home was not divided by the divorce decree.

Id. at 667. Wife resided in the home, and nearly 24 years after the divorce, husband brought

a partition action to partition the property. Id. The trial court found that husband's failure

to seek a remedy until 24 years after the divorce and 11 years following a modification of

the divorce decree was patently unfair to wife and granted wife the entirety of the marital

home. Id. at 668. On appeal, the Eastern District of this Court found that the judgment

improperly denied husband his interest in the property and remanded the case for the trial

court to determine the respective contributions made to the home.

                                              7
       Each party begins with a half of a share in the property in the trial court's
       initial calculation of individual interest. Vickers v. Vickers, 762 S.W.2d 482,
       483 (Mo. App. E.D.1988). However, under the dictates of Brooks [v. Kunz,
       637 S.W.2d 135, 139-40 (Mo. App. E.D. 1982)], if one co-tenant
       disproportionately augments the value of the property, that co-tenant is
       entitled to contribution from the other. Id.

Williams, 990 S.W.2d at 668. This discussion from Williams represents the proper partition

of the property where there is no evidence of donative intent. In Montgomery v. Roberts,

714 S.W.2d 234, 235 (Mo. App. E.D. 1986), also cited by Graham, landowner's sister filed

a petition to quiet title after property owner's death. The landowner had previously

transferred the property to a woman5 he was living with at the time of his death. Id. The

court found that "[s]ince there was no evidence of donative intent on [landowner's] part, or

the existence of a family relationship, the property had to be apportioned according to the

contribution of each towards the acquisition of the property." Id. 236.

       Montgomery makes clear that donative intent and family relationship do factor into

a courts consideration in the apportionment of property. As with Felderman, the nature of

Graham and Umland's relationship was sufficient to support the circuit court's finding that

Graham had a donative intent when she made the down-payment for the jointly titled home

as well as made additional payments toward the principle. Umland testified that the

extensive renovations that she made to the 8871 Property increased its value by means

other than cash contributions. The couple treated all their assets as jointly owned and made

payments from a joint bank account to which they both contributed their salaries. When




       5
           Although a contested issue, the circuit court found that the landowner and woman were unmarried. Id. at
235.

                                                         8
Umland stopped contributing income to the joint bank account, it was in furtherance of a

business the parties started by agreement. Umland's testimony supported a finding that

Graham knew of the consequences and risks of Umland starting a business and agreed to

support the couple financially while Umland was attempting to start and grow a new

business. While Graham countered this testimony, the circuit court was free to disbelieve

Graham's testimony. Blair v. Blair, 147 S.W.3d 882, 886 (Mo. App. W.D. 2004) ("The

trial judge has absolute discretion as to the credibility of witnesses and the weight of their

testimony is a matter for the trial court, and its findings on witness credibility are never

reviewable by the appellate court.")

       There is a presumption that tenants in common hold equal shares of property they

own. The circuit court did not error in finding that Graham failed to present sufficient

credible evidence to rebut this presumption.

       As to the HELOC, Graham argues that the parties had previously agreed that

Umland would be solely responsible for the debt because it was solely for the benefit of

Umland's businesses. Graham contends that the court "erroneously makes a finding that

Plaintiff denied the existence of an agreement that the HELOC was her 'sole

responsibility.'" In her briefing, Graham states "[Umland] clearly testified on cross-

examination that the HELOC was her responsibility." While true that Umland did respond

"yes" to a question of whether the HELOC was her "responsibility," a close review of the

transcript, in the cited testimony and its surrounding testimony, shows that, at best,

Umland's testimony was conflicting.        When read in its totality, Umland's claim of

responsibility could properly be interpreted by the fact finder to be related to the fact that

                                               9
the HELOC was used to provide funding for her businesses and she was responsible for

managing the businesses and making payments on the line of credit from those businesses.

When specifically asked about whether Graham told Umland that "the note belongs to

you," suggesting sole liability for repayment, Umland testified: "I don't recall that." Again,

as noted above, the circuit court was free to disbelieve Graham's testimony. Blair, 147

S.W.3d at 886. It was also free to believe Umland's testimony, both in direct and on cross-

examination, that there was never any agreement that the HELOC would be repaid solely

by her.

          The HELOC was taken out jointly by Umland and Graham and secured by their real

property. According to Umland's testimony, the couple knew that the businesses might

lose money. When the HELOC's credit limit was increased, it was again done jointly by

the couple. Umland testified that she regularly discussed business purchases with Graham

including a $10,000 van purchased for Umland's business, paid for by the HELOC, but that

was jointly titled between the women. Umland testified that the HELOC was opened for

their joint benefit. Additionally, money from the HELOC was used to fix up a home

previously owned by Graham's mother, which was renovated by Umland and eventually

sold. Money from the HELOC was also used to prepare the Redbud Property for sale after

Umland and Graham's separation.

          It is clear from the Judgment that the court believed that the couple intended to live

as a married couple sharing their finances and pooling their assets. The court specifically

found that the Graham had equal access to all bank statements concerning the HELOC and

that the parties agreed to take the business risk together. In effect, the court simply chose

                                                10
to disbelieve Graham's assertion that the HELOC was to be Umland's sole responsibility,

a finding supported by the record. As noted above, we will defer to the circuit court on

questions of witness credibility.

       Graham attempts to challenge Umland's credibility by noting that Umland failed to

disclose certain assets in her original Petition and to note that some assets were titled

individually. While such issues might call into question Umland's credibility, these issues

were fully presented to the circuit court, which found, on the question of donative intent

and responsibility for the HELOC loan, Umland's evidence was more credible. This court

does not revisit such a determination on appeal.

                                          Conclusion

       For the reasons stated above, we affirm.


                                          __________________________________
                                          Gary D. Witt, Judge

All concur




                                            11
