Alberty v. Alberty

• Decision Date: 26 August 2008
• Docket Number: No. WD 68613.,No. WD 68720.,WD 68613.,WD 68720.
• Citation: 260 S.W.3d 856
• Parties: Carol E. ALBERTY, Appellant-Respondent, v. William E. ALBERTY, Respondent-Appellant.
• Court: Missouri Court of Appeals

260 S.W.3d 856

Carol E. ALBERTY, Appellant-Respondent, v. William E. ALBERTY, Respondent-Appellant.

No. WD 68613.

No. WD 68720.

Missouri Court of Appeals, Western District, Division Three.

August 26, 2008.

Charles J. Dykhouse, Esq., Columbia, MO, for appellant.

Timothy Alexander Reuschel, Esq., Kirksville, MO, for respondent.

Before JOSEPH M. ELLIS, P.J., RONALD R. HOLLIGER and JOSEPH P. DANDURAND, JJ.

JOSEPH P. DANDURAND, J.

Carol Alberty (Wife) appeals and William Alberty (Husband) cross appeals from the trial court's judgment and decree of dissolution of marriage. Both challenge the trial court's award of maintenance to Wife. The judgment is affirmed in part and reversed in part.

Facts

The parties were married on June 27, 1970. At the time of trial in November 2006, the parties had been married for thirty-six years, and Wife was almost fifty-eight years old. At the beginning of the marriage, Wife had a bachelor's degree in child development and family relations, had obtained a temporary teaching certificate, and began taking further education courses. She worked for three years as a teacher. She then became a homemaker and cared for the parties' children. She did not work outside of the home for the thirty-three years prior to trial. Wife was not qualified to teach at the time of trial and did not have a teaching certificate.

Wife suffers from several medical problems. She has had two back surgeries, a discectomy in 2003 and a fusion in 2004. She also suffers from diverticulitis, which resulted in a surgery and hospitalization shortly before trial. A letter written by Wife's physician was introduced into evidence and outlined her limitations. Specifically, the physician recommended that she not lift more than fifteen pounds or engage in repetitive bending, lifting, climbing, or crawling. He also recommended that Wife avoid staying in one position for more than thirty minutes at a time. Wife further testified that if she sits or stands for too long, she experiences stiffness or pain in her back and legs. Finally, Wife testified that she is willing to work and that she has looked online and in the newspaper but has not found employment that she is qualified for or physically able to do.

During the marriage, Husband practiced law in Edina and served as the prosecutor of Knox County. For the five years prior to the trial, Husband's average income was $106,000 per year. At the time of trial, he had been elected to serve as an associate circuit judge in Knox County. His four-year term began January 1, 2007. As an associate circuit judge, he would earn $8000 per month. Husband agreed at trial that Wife needed maintenance and proposed to pay her $2500 per month for four years since he only planned to serve one term. Husband also testified that if he did seek a second term, he should pay maintenance for as long as he was actively employed as a judge.

In 1984, Wife caught Husband with another woman, his legal secretary. At the time, Husband admitted to kissing and touching the woman, and promised it would never happen again. The parties reconciled. In 2000, Wife discovered Husband and the same woman in a compromising position in his office. Again, the parties attempted to reconcile. Ultimately, Wife decided she could not trust or respect Husband, and the parties separated in September 2005. Wife subsequently moved from Edina to Columbia.

Trial was held in November 2006. The trial court entered a Qualified Domestic Relations Order (QDRO) on February 26, 2007, awarding Wife fifty percent of Husband's prosecutor retirement benefits for a monthly income of $1046. The trial court entered its judgment and decree of dissolution of marriage on May 2, 2007. The court ordered Husband to pay Wife maintenance of $2600 per month for four years. It also designated the maintenance award as non-modifiable. This appeal by Wife and cross appeal by Husband followed.

Standard of Review

A decree of dissolution will be affirmed on appeal unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Farris v. Farris, 75 S.W.3d 345, 347 (Mo.App. W.D.2002). The evidence is viewed in the light most favorable to the decree, and all evidence to the contrary is disregarded. Henning v. Henning, 72 S.W.3d 241, 245 (Mo.App. W.D. 2002). "The party challenging the dissolution judgment has the burden of demonstrating error." Id.

A trial court has broad discretion in determining whether to award maintenance. Farris, 75 S.W.3d at 347. Its decision will not be reversed absent an abuse of discretion. Id. A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to indicate indifference and a lack of careful judicial consideration. Cohen v. Cohen, 73 S.W.3d 39, 53 (Mo.App. W.D.2002). "If reasonable persons can differ about the propriety of the trial court's action, it cannot be said that the trial court abused its discretion." Id.

Points on Appeal

In their appeals, Wife and Husband both challenge the trial court's award of maintenance. Wife claims that the trial court abused its discretion in limiting the duration of her maintenance, designating it as non-modifiable, and prospectively decreasing the award upon her receipt of Social Security benefits. Husband contends that the trial court abused its discretion in failing to impute income to Wife in determining the maintenance award.

A trial court may award maintenance to a spouse if it finds that the spouse: (1) lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs and (2) is unable to support herself through appropriate employment. § 452.335.1, RSMo 2000; Donovan v. Donovan, 191 S.W.3d 702, 705 (Mo.App. W.D. 2006). "The spouse seeking maintenance has the burden of establishing these threshold requirements." Donovan, 191 S.W.3d at 705. Once the trial court determines that maintenance is warranted, it must consider the following factors in determining the amount and duration of maintenance:

(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;

(2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;

(3) The comparative earning capacity of each spouse;

(4) The standard of living established during the marriage;

(5) The obligations and assets, including the marital property apportioned to him and the separate property of each party;

(6) The duration of the marriage;

(7) The age, and the physical and emotional condition of the spouse seeking maintenance;

(8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;

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

(10) Any other relevant factors.

§ 452.335.2, RSMo 2000; Sweet v. Sweet, 154 S.W.3d 499, 504-05 (Mo.App. W.D. 2005). "The court is to apply the factors so as to balance the reasonable needs of the spouse seeking maintenance against the ability of the other spouse to pay." Sweet, 154 S.W.3d at 505.

Husband's Cross Appeal

Husband's cross appeal is addressed first. In his sole point, he claims that the trial court abused its discretion in failing to impute income to Wife in determining the maintenance award. Specifically, Husband contends that substantial evidence was presented that Wife had the desire and ability to work but had not sought employment based on the advice of her attorney.

"`The purpose of maintenance is to assist a spouse who is unable to be self-supporting through appropriate employment.'" Thomas v. Thomas, 76 S.W.3d 295, 302 (Mo.App. W.D.2002)(quoting Creech v. Creech, 992 S.W.2d 226, 229-30 (Mo.App. E.D.1999)). "`Appropriate employment' is employment that is appropriate to a person's skills and interests." Id. The decision whether to impute income to a spouse in awarding maintenance depends upon the particular facts of each case. Id. at 303. The trial court can impute income to a spouse seeking maintenance according to what she could earn using her best efforts to gain employment suitable to her capabilities. Id.

In this case, Husband conceded at trial that Wife needed maintenance. He only disputes the amount of the award arguing that income should have been imputed to Wife based on her ability to partially support herself through employment.

The trial court expressly declined to impute employment income to Wife "[g]iven the age, physical limitations, and specific skills of [Wife]." This decision was supported by substantial evidence in the record. Wife turned fifty-eight years old the week after trial. She had not been employed outside the home for most of the marriage, specifically, the thirty-three years prior to trial. Although she had a bachelor's degree in child development and family relations and had worked as a teacher at the beginning of the marriage, Wife was not qualified to teach at the time of trial and did not have a teaching certificate. Furthermore, Wife suffers from several medical problems. Since 2003, she has had two back surgeries and an additional surgery and hospitalization because of diverticulitis. According to her physician, she cannot lift more than fifteen pounds, engage in repetitive bending, lifting, climbing, or crawling, or sit or stand in one position for more than thirty minutes at a time.

Wife testified that she is willing to work but is unsure what she would be able to do with her physical limitations and lack of qualifications. She also stated that the emotional toll and stress caused...