Adair v. Adair

• Decision Date: 20 January 2004
• Docket Number: No. WD 61887.,No. WD 61875.,WD 61875.,WD 61887.
• Citation: 124 S.W.3d 34
• Parties: Barry ADAIR, Appellant-Respondent, v. Darla ADAIR, Respondent-Appellant.
• Court: Missouri Court of Appeals

124 S.W.3d 34

Barry ADAIR, Appellant-Respondent, v. Darla ADAIR, Respondent-Appellant.

No. WD 61875.

No. WD 61887.

Missouri Court of Appeals, Western District.

January 20, 2004.

Michael Paul Bandre, Overland Park, KS, for appellant-respondent.

Nancy Agnes Beardsley, Independence, for respondent-appellant.

RONALD R. HOLLIGER, Judge.

Barry Gene Adair ("Husband") and Darla Beth Adair ("Wife") cross appeal a judgment of dissolution of marriage entered on July 26, 2002, and amended thirty days later to dispose of property omitted from the original decree. Husband contends that the trial court's division of property was so disproportionate as to constitute an abuse of discretion. He secondly contends that the trial court erred in determining the amount of maintenance that Wife would receive. Finally, Husband contends that the trial court erred in ordering him to pay a portion of Wife's attorney fees. Wife cross-appeals, contending that the trial court should not have terminated her maintenance automatically in three years. We affirm the judgment but modify it pursuant to Rule 84.14 to eliminate the provision terminating Wife's maintenance payments automatically in the future.

The parties were married on March 30, 1979. During the marriage, they separated during several periods, with the final period beginning on June 9, 2001. There was evidence that Husband had engaged in an affair with a female co-worker toward the end of the marriage, though the Husband disputed whether that liaison began prior to the parties' separation.

Husband filed his petition seeking dissolution of the parties' marriage on September 4, 2001. Wife filed her answer and counter-petition on September 25, 2001. The matter proceeded to a three-day trial beginning June 24, 2002. Following trial, the court entered judgment on July 26, 2002. After the entry of that judgment, it came to the trial court's attention that certain property had been left out of the property division. An amended judgment was subsequently entered on August 22, 2002, to resolve that issue.

The parties' two most significant assets were a joint bank account, containing approximately $98,000, and the marital residence. During the parties' separation, they split the bank account evenly between themselves. They also sold the marital residence, evenly dividing the $36,000 profit obtained from the sale. Wife placed her share of the proceeds into savings, while Husband dissipated his share. The trial court found that the parties held assets in the amount of $127,099 at the time of trial. It also found that Husband had squandered assets, in the form of the paychecks received during the separation, in the amount of $35,000, and had given away additional funds in the amount of $8,900.

In its initial division of marital property, Husband was awarded property equaling a value of $56,104 and credited against him $43,900 to account for the assets he had squandered or given away to third parties. Wife was awarded property in the amount of $70,995. The trial court also entered a judgment in favor of Wife and against Husband in the amount of $20,200, to equalize the property division. Taking into account that equalization payment, the resulting award to Husband was $79,804 (forty-seven percent) while the award to Wife was $91,905 (fifty-three percent).

The amended judgment made the same property allocations and also disposed of a bank account containing approximately $19,000 that had been omitted in the original judgment. Those funds were the remainder of $30,000 given to Wife by her father. Wife had originally placed those funds into a joint bank account with Husband, but had later closed that account and placed the remaining funds into an account in her own name. The trial court ultimately awarded those funds to Wife. The inclusion of that account raised the total property divided in the judgment to $189,999. Of that amount, Husband was awarded $79,804 (forty-two percent), while Wife was awarded $110,195 (fifty-eight percent).

During the marriage, Husband was gainfully employed, and testimony established that he had earned at least $100,000 per year in the three years prior to trial. Husband testified that he anticipated earning approximately $98,000 in 2002. He had difficulty accounting for his expenses, as he had apparently been cashing his paychecks instead of depositing them into an account. This stood in stark contrast to the meticulous record keeping he maintained during the marriage.

The evidence at trial showed that Husband started to spend money lavishly after the separation. He took five vacations with his paramour between the separation and the date of his testimony at trial. He gave generous gifts of clothing and jewelry to that individual, as well as other gifts to her children. Husband also gave money to his father.

As indicated above, Husband depleted his share of the joint bank account and the proceeds from the sale of the marital residence. Despite having spent nearly $60,000, he could not account for what purpose those expenditures were made. Nor could Husband account for his wage earnings during the separation because he cashed his paychecks. The trial judge found in its amended judgment that "[g]iven the amount of Petitioner's income and expenses, he should have accumulated over $35,000 during the separation. Petitioner has given $8,900 away since the separation. Petitioner has withdrawn $120,193.63 from his bank accounts during eight months of the separation."

Wife was not employed outside the home during the marriage. By the end of trial, Wife had obtained part-time employment, working twenty hours per week during the weekends as a radiology assistant, earning approximately $600 per month. She was also taking eight hours of classes per week as a prerequisite to entering schooling to become a radiology technician. It was uncertain whether Wife would be able to enter that program, however, given the surplus of applicants compared to openings in the program. Wife also took time to babysit her grandchild during weekdays, without compensation.

Husband voluntarily supplied Wife with a monthly allowance during the time of separation. After separation, Wife lived in the marital home while Husband made the house payments, apparently until that residence was sold, as discussed previously.

Wife presented evidence that her monthly expenses were $2,726 per month. The trial court considered Husband's evidence that $343 of those monthly expenses were car payments that would end in the near future. Based on that evidence, the court found that Wife's reasonable expenses were $2,403 per month. The trial court awarded Wife modifiable maintenance of $2,400 per month, but that the maintenance would terminate after three years. Husband was also ordered to pay $10,000 towards Wife's attorney fees.

STANDARD OF REVIEW

Our standard of review in a dissolution action is the same as any other bench-tried case, as articulated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm unless we conclude that the trial court's judgment is not supported by substantial evidence, is against the weight of the evidence, or misstates or misapplies the law. Id. We set aside a judgment as being against the weight of the evidence only with caution and a firm belief that the judgment is wrong. In re Marriage of Lewis, 808 S.W.2d 919, 922 (Mo.App.1991). We defer to the trial court's credibility findings, viewing the evidence in the light most favorable to the judgment. See id.

DISCUSSION

Husband raises three points on appeal from the judgment below. He first contends that the trial court erred in its division of marital and non-marital property, in that the property division was so weighted in favor of Wife to constitute an abuse of discretion. In his second point on appeal, he argues that the trial court erred in awarding maintenance in the amount of $2,400 per month to Wife because that sum exceeded her reasonable needs, after taking into account her capacity for employment. Third, Husband claims that the trial court erred in awarding Wife attorney fees in the amount of $10,000, taking the position that the award was an abuse of discretion, due to the amounts Wife received in the property division as well as the maintenance award. Wife cross-appeals, contending that the trial court erred in including a provision in the maintenance award that it would terminate at the conclusion of three years. As both parties raise issues concerning the maintenance award, we will take up Husband's points on appeal out of order, so that we may address the maintenance issues consecutively.

I. The Property Division

As indicated above, after taking account all assets and the property equalization payment, Husband received forty-two percent in the property division, while Wife received fifty-eight percent. Husband contends that this unequal distribution of assets constituted an abuse of discretion.

Section 452.330.1, RSMo, provides that the court consider all relevant factors in dividing marital property including:

(1) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;

(2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;

(3) The value of the nonmarital property set apart to each spouse;

(4) The conduct of the parties during the marriage; and

(5) Custodial arrangements for minor children.

We note, at the outset, that the trial court is not required to make an equal distribution of property. See Thill v. Thill, 26 S.W.3d 199, 208 (Mo.App.2000) (affirming a sixty-forty division of marital property). That distribution need only be fair. Id. It must also take into account the statutory factors outlined in ...