Allen v. Allen, WD

• Decision Date: 02 July 1996
• Docket Number: No. WD,WD
• Citation: 927 S.W.2d 881
• Parties: David Bruce ALLEN, Appellant, v. Susan L. ALLEN, Respondent. 51536.
• Court: Missouri Court of Appeals

Page 881

927 S.W.2d 881

David Bruce ALLEN, Appellant, v. Susan L. ALLEN, Respondent.

No. WD 51536.

Missouri Court of Appeals Western District.

July 2, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 27, 1996.

Cyril Mehrle Hendricks, Renee T. Duffield, Roger Gordon Brown, Jefferson City, for appellant.

Christina Rhea Neff, Jefferson City, for respondent.

Before EDWIN H. SMITH, P.J., and BRECKENRIDGE and ELLIS, JJ.

EDWIN H. SMITH, Presiding Judge.

David B. Allen appeals the Amended Judgment and Decree of Dissolution entered in the Cole County Circuit Court on August 10, 1995. Appellant asserts three points on appeal: (1) the trial court erred and abused its discretion in awarding respondent $2,500 per month non-modifiable rehabilitative maintenance for thirty-six months because respondent failed to prove she was unable to support herself as required by § 452.335, RSMo ¹; (2) the trial court erred in overruling appellant's motion to modify judgment or in the alternative, to reopen the case for further evidence because it had before it evidence that appellant had experienced a substantial change in circumstances; and, (3) the trial court erred in dividing the parties' personal property and liabilities because the division is not just and equitable.

FACTS

The parties were married on January 31, 1992. They separated in December, 1993, and the marriage was dissolved on June 20, 1995. Appellant and respondent began living together four or five years prior to their marriage. Husband had been married twice before and had no children. Wife had been married twice before and has two grown children by a prior marriage.

Appellant spent four years in the Army and then completed an Associate in Science degree by going to school on the G.I. Bill. He received his medical degree from the University of Texas and completed an internship in general surgery at Stanford in Connecticut. He was completing a four-year general surgery residency in Flint, Michigan, earning $23,000 to $29,000 when he met and began living with respondent. He then completed a three year cardiac residency in Detroit, Michigan, earning $33,000 per year. The parties married near the end of this residency in Detroit.

The parties moved to Jefferson City, Missouri, after completion of appellant's cardiac residency. Husband became employed as a cardiovascular surgeon at Missouri Cardiovascular initially earning $150,000 per year. He was earning $240,000 per year when his employment with Missouri Cardiovascular ended. He was unemployed for approximately eight months before gaining employment with Collom Carney Clinic in Texarkana, Texas, as a cardiac surgeon. At the time of dissolution, he was forty-three years old and earning $260,000 per year or $22,216 per month.

Respondent holds an Associate of Science degree, a certificate in paralegal studies and a certificate as a profusion assistant. She had worked as a legal secretary, operated a bookkeeping service and was managing her ex-husband's dental practice when she met appellant. She began living with appellant after her previous marriage was dissolved and worked as a profusion assistant with Cycore earning $10.50 per hour. A few months after the parties married, appellant and respondent moved to Missouri where respondent did not work outside the home.

Before marriage, but while living together, the parties commingled assets. They opened Once in Jefferson City, they purchased a house with a mortgage of $1,800 per month. They purchased furnishings for their home although a lot of the marital income went toward reducing the parties' debt. The parties paid extra on appellant's student loans and continued to drive their 1988 Ford Thunderbird and 1987 Chevrolet Cavalier which they owned prior to the marriage. The parties went on several trips to San Francisco, St. Louis, San Antonio, Eureka Springs, and Hawaii.

a joint banking account and purchased personal possessions together. Respondent deposited the $30,000 cash-property settlement from her previous marriage, payable in installments of $5,000 down then $1,000 per month into the joint account. Going into the marriage, appellant had student loan debt in the approximate amount of $70,000 and respondent had credit card debt, and they both had car loans. Respondent also owned an IRA, thirty to thirty-five shares of Cycore stock, and interest proceeds from a contract for sale of real estate in Michigan which paid $210 per month for another eight to ten years after the hearing. Respondent owed mortgage payments, due her mother, on the house she sold under contract in the amount of $200 per month. She did not make mortgage payments during the time she lived with appellant because she and appellant needed the money nor did she make payment during the separation period.

By the time of the parties' separation, and after the sale of the marital home, the only outstanding joint debts appellant and respondent owed were credit card debt, in the amount of approximately $8,500 and appellant's separate student loan and respondent's separate debts incurred in Florida. Appellant's student loan balance was $36,348.17 at the time of trial. He was paying them back at the rate of $1,500 per month. None of the student loans were acquired by appellant after he met respondent and began living with her. They were all acquired by him before he knew respondent. The credit card debt was in respondent's name because appellant had filed for relief in bankruptcy and respondent had the credit.

The parties had marital difficulties early in their marriage. Approximately four months into their marriage, they physically fought after attending a wedding reception in which they both had been drinking. Approximately eight months into the marriage, Respondent moved to Cold Water, Michigan with her belongings after another fight. She obtained an apartment and sought employment but moved back to Jefferson City eight weeks later. Soon thereafter on December 10, 1993, they had another violent fight. Respondent had a black eye, lost consciousness and lost a chunk of her hair during this encounter. The parties permanently separated and respondent moved to Florida to live with her mother.

Appellant began an affair with Beth Davis in October 1993 before the marriage ended. Both parties used marijuana frequently during the marriage although appellant denied doing so under oath. Appellant's father lived with them in November and December 1993 after he underwent surgery for a double amputation of the legs. Respondent cared for him during his adjustment.

Respondent went to work for her brother, an attorney, who owned a furniture store about two weeks after she moved to Florida. Her job duties included answering the phone and computer work. In March, she went to work for her sister-in-law, a psychiatrist, as a secretary/office manager. She initially worked part-time but moved up to full-time earning $300 per week. She left this job because she suffered from uncontrollable crying jags, insomnia and panic attacks. In February 1995, she began work as a floral arranger earning $6.00 per hour. The floral shop went out of business after Mother's Day and respondent remained unemployed. She believed she had a mental condition that affected her ability to work. She had counseled with either her mother, a clinical therapist, or her sister-in-law every day. Neither respondent's mother or sister-in-law testified at trial. No records were produced and respondent was never prescribed any medication. Respondent could only work for Cycore again if they were contracted with a At trial, respondent's income and expense statement showed her monthly expenses were $3,165. The trial court awarded her non-modifiable rehabilitative maintenance for a period of three years in the amount of $2,500 per month. Appellant filed a timely appeal.

hospital in Florida. However, she did not want to work with heart surgeons again.

STANDARD OF REVIEW

Provisions in a divorce decree will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Woolridge v. Woolridge, 915 S.W.2d 372, 375 (Mo.App.1996); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "The party challenging the divorce decree bears the burden of demonstrating error." Woolridge, 915 S.W.2d at 375.

I.

In Point I, appellant asserts the trial court erred and abused its discretion in awarding respondent $2,500 per month non-modifiable rehabilitative maintenance for thirty-six months because respondent failed to satisfy her burden of proof under § 452.335, RSMo. Under § 452.335, before a spouse can be awarded maintenance, she must show she lacks sufficient property to provide for her reasonable needs and is unable to support herself through appropriate employment. Appellant argues that respondent is fully capable of supporting herself through appropriate employment, and the Missouri Dissolution Laws are not designed to require appellant to finance respondent's desired career change.

The trial court is afforded broad discretion in its orders granting maintenance and will not be disturbed absent an abuse of discretion. Whitworth v. Whitworth, 878 S.W.2d 479, 483 (Mo.App.1994); Vehlewald v. Vehlewald, 853 S.W.2d 944, 953 (Mo.App.1993). The appellate court will interfere with a maintenance award only when it is "patently unwarranted or is wholly beyond the means of the spouse who pays maintenance." Gardner v. Gardner, 830 S.W.2d 559, 561 (Mo.App.1992). The burden is on the party contesting maintenance to prove that the award of maintenance "shocks the appellate court's sense of justice." Theilen v. Theilen, 847 S.W.2d 116, 123 (Mo.App.1992). The evidence is viewed favorable to the decree, disregarding evidence to the contrary and deferring to the trial court even if the evidence could support a different conclusion. Whitworth, 878...