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Conrad v. Conrad6/4/2002
f going forward with the evidence to the other spouse once the issue of secreting or squandering a marital asset is raised.
Logically, a trial court in a dissolution proceeding cannot consider an asset for distribution as marital property, unless and until there is evidence that there is a marital asset subject to distribution. Thus, a spouse, claiming that a marital asset is being secreted or was squandered by the other spouse in anticipation of a dissolution proceeding, must introduce evidence demonstrating that there existed at some point a marital asset, which is being secreted or was squandered. While the burden of proof would remain with the spouse claiming that the other spouse was secreting or had squandered the marital asset in question, the burden of going forward with the evidence would then shift to the other spouse to "account" for the claimed secreted or squandered asset by presenting evidence as to its whereabouts or disposition. See Bland, 652 S.W.2d at 692. This is a logical procedural step in resolving the issue of the secreting or squandering of a marital asset, in that the spouse claiming that an asset has been secreted or squandered by the other spouse is usually not in a position to know exactly what the other spouse did with the asset, especially in the case of the secreting of an asset. We believe that this approach is in reality the approach that has been applied by our appellate courts in the past, but without express recognition of that fact.
Applying the procedural approach enunciated herein, Husband, in order to succeed on a claim at trial that the settlement proceeds received by Wife were marital property subject to division by the trial court, had the burden to introduce evidence that Wife received the settlement proceeds, which were marital property subject to division by the trial court, and that she was either secreting them or had squandered them. Thereafter, the burden would have shifted to Wife to account for the proceeds. Husband then would have been in a position to respond to Wife's accounting evidence. It then would have been up to the trial court to resolve any conflicts in the evidence and determine whether Husband had carried his burden of proof with respect to a claim that Wife was secreting or had squandered the proceeds. In doing so, the court would have to resolve any credibility issues. Schneider, 824 S.W.2d at 947.
There is no dispute that Wife received the settlement proceeds in question and that they were marital property. In that regard, the parties stipulated and agreed that she "netted" $42,900 of the $65,000 in settlement proceeds. Although Husband included the $42,900 in proceeds in his statement of marital property, he never claimed at trial that Wife was secreting or had squandered them. As to what Wife did with the proceeds from the time of their receipt until the time of trial, she testified at trial under questioning by her trial counsel:
Q: And what did you use that settlement money for?
A: I paid for my first and last month's rent and pet deposit, because I had animals. Deposits on utilities, the ones that they required me to provide. Laundry. Because I had no washer and dryer and I had quite a bit of laundry to do. Of course, my gas expense -- normal expenses I always had before, to get back and forth to work and --
Q: Did you -- Did you pay an $8,000 marital credit card debt with part of that settlement money?
A: When I bought the house it was required that I pay off a credit card and the Jeep payment in order to buy the house.
Q: Okay. But you had to use your -- part of your settlement money to do that; is that correct?
A: Yes. That
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