Barth v. Barth

• Decision Date: 10 April 2012
• Docket Number: No. WD 73727.,WD 73727.
• Citation: 372 S.W.3d 496
• Parties: Sally BARTH, Appellant, v. David BARTH, Respondent.
• Court: Missouri Court of Appeals

372 S.W.3d 496

Sally BARTH, Appellant,

v.David BARTH, Respondent.

No. WD 73727.

Missouri Court of Appeals, Western District.

April 10, 2012.

Gail Berkowitz–Gifford, Kansas City, MO, James D. Williamson, Jr., Independence, MO, for appellant.

James D. Boggs, Kansas City, MO, for respondent.

Before Division One: CYNTHIA L. MARTIN, Presiding Judge, KAREN KING MITCHELL, Judge and GARY D. WITT, Judge.

CYNTHIA L. MARTIN, Judge.

Sally Barth (“Wife”) appeals from the trial court's judgment decree of dissolution of marriage. Wife contends that the trial court erred in (1) awarding her $2,500 per month in non-modifiable maintenance for one year; (2) accepting David Barth's (“Husband”) valuations of the business interests owned by parties; (3) ordering the division of the parties' Victorian furniture because the language used in the judgment is ambiguous; (4) ordering her responsible for fifty percent of all college expenses for the parties' children; and (5) failing to award Wife attorney's fees. We affirm.

Factual and Procedural History¹

Husband and Wife were married on July 27, 1985. There are four children born of the marriage: Janelle, born August, 1991; Jackson, born June, 1993; George, born September, 1995; and Blake, born January, 1998. On July 19, 2008, Husband and Wife separated. On November 5, 2008, Wife filed a petition for dissolution of marriage. Wife's dissolution proceeding was tried to the court on December 16–17, 2010.

During the marriage, Husband was a real estate developer. In furtherance of those efforts, Husband and Wife owned minority interests in numerous real estate development entities which owned land, primarily for the purpose of residential subdivision development (collectively, “the Entities”).² Husband also worked as a realtor for REMAX.

Husband and Wife were the sole owners of an entity known as Northland Sports LLC/Parkville Athletic Complex LLC (“Northland Sports”). This entity operated a gym. Wife worked at Northland Sports during the marriage.

In the two years leading up to trial, the Entities generated substantial losses as the result of the declining real estate market. As a result, at the time of trial, neither party was capable of supporting themselves. Within the year preceding trial, Husband established a $1,000,000 line of credit secured by Northland Sports.³ Husband used some of the proceeds of the line of credit to pay off the mortgage on the marital residence where Wife was living. Husband also used some of the proceeds of the line of credit to fund mortgage interest and real estate tax obligations of the Entities in an effort to prevent foreclosure of the real estate owned by the Entities. Husband also used the line of credit, as needed, to meet his personal financial needs.

To meet her financial needs, Wife occasionally took a salary from Northland Sports,⁴ used student loans, obtained a loan against her vehicle, used insurance proceeds from an automobile accident that totaled her vehicle, used proceeds from the sale of land she owned with Husband's sister, and borrowed money from others.

In August 2010, Wife enrolled as a full-time student in a one-year accelerated nursing degree program. At trial, Wife testified about her employment prospects following completion of the program, and about the prospect for forgiveness of her tuition obligations depending on the employment she accepted.

On February 10, 2011, the trial court entered its judgment decree of dissolution (“Judgment”). Relevant to this appeal, the Judgment: awarded the parties joint legal and physical custody of the children and adopted the parenting plan submitted by Wife and stipulated to by Husband; ordered each party responsible for the expenses of the children while in that party's care; ordered each party responsible for fifty percent of the children's college expenses; directed the parties to divide Victorian furniture; ordered Husband to pay Wife maintenance in the amount of $2,500 per month for one year through January 2012; awarded Wife the marital home valued at $495,000 which was free and clear of debt; awarded Husband the interests in the Entities and Northland Sports; ordered Husband to exercise his best efforts to secure Wife's release from the debts of the Entities and Northland Sports which the parties had personally guaranteed, and in any event to indemnify Wife for those debts; and ordered each party to pay his or her own attorney's fees.

Following the entry of Judgment, Wife filed a motion for recusal of judge and for new trial which was denied. Wife appeals.

Standard of Review

We will affirm the decree of dissolution unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Green v. Green, 341 S.W.3d 893, 894 (Mo.App. W.D.2011) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). “We view the evidence in the light most favorable to the decree, disregard evidence to the contrary, and defer to the trial court even if the evidence could support a different conclusion.” Sweet v. Sweet, 154 S.W.3d 499, 503–04 (Mo.App. W.D.2005). We defer to the trial court's credibility determinations and “assume all factual issues were resolved in favor of the judgment entered.” Id. at 504. “We review questions of law de novo.” Green, 341 S.W.3d at 894 (citing Smith v. Am. Family Mut. Ins. Co., 289 S.W.3d 675, 680–81 (Mo.App. W.D.2009)).

We review the trial court's division of property, setting of child support awards, grant of maintenance, and award of attorney's fees for an abuse of discretion. Sabatino v. Sabatino, 314 S.W.3d 854, 858 (Mo.App. W.D.2010); Tracy v. Tracy, 961 S.W.2d 855, 863 (Mo.App. S.D.1998). An abuse of discretion is only found where the award is “ ‘clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable people can differ about the propriety of the action taken by the trial court, it cannot be said the trial court abused its discretion.’ ” Sweet, 154 S.W.3d at 504 (citation omitted).

Analysis

Point I

For her first point, Wife claims that the trial court erred in determining the amount and duration of maintenance by awarding her non-modifiable maintenance of $2,500 per month for one year, through January 2012. Specifically, Wife claims that the trial court (i) reduced Wife's reasonable needs without sufficient evidence; (ii) failed to consider the parties' standard of living during the marriage; (iii) improperly limited the duration of maintenance based on speculation that she would complete nursing school, secure employment, and become self-supporting; (iv) improperly considered Husband's investment losses in determining his ability to pay; and (v) improperly designated the award of maintenance as non-modifiable.

It is not contested that Wife established the threshold statutory requirements set out in section 452.335.1 ⁵ to demonstrate that she was entitled to maintenance. In fact at trial, Husband testified that he had no objection to paying Wife maintenance, though he believed it should be limited in duration to the time Wife completed her nursing program in August 2011. Our focus, therefore, is not on the award of maintenance, but rather on the amount and duration of maintenance awarded.

Section 452.335.2 describes the factors that are to be considered in determining both the amount of maintenance, and the period of time over which it should be awarded. Those factors are:

(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.

Section 452.335.2. “ ‘A trial court has broad discretion in setting the amount and duration of a maintenance award[.]’ ” Green, 341 S.W.3d at 894 (quoting Sweet, 154 S.W.3d at 504). Following our review of the record, we conclude that the trial court did not abuse its discretion in awarding non-modifiable maintenance of $2,500 per month for the limited duration of one year. In explanation, we address each of the varied claims of error raised by Wife.

(a) Reduction of Wife's reasonable needs/consideration of standard of living

Wife asserts that the amount of maintenance awarded was too low because the trial court reduced her reasonable needs without sufficient evidence. Wife also asserts that the trial court failed to take into consideration the parties' standard of living while married. We disagree.

“ ‘[R]easonable needs' is the standard for determining the expenses properly allowable to a party seeking maintenance; and the court must determine whether the expenses in question constitute ‘reasonable needs' of the requesting party.” Nichols v. Nichols, 14 S.W.3d 630, 636 (Mo.App. E.D.2000). Wife's income and expense statement claimed monthly expenses of $9,288. The trial court found that $2,500 per month included in this sum for tuition should be disregarded. The tuition was not actually being paid, but was instead a deferred and conditional obligation. Wife testified that her tuition...