Bolch v. Bolch, WD 60130.

• Decision Date: 31 May 2002
• Docket Number: No. WD 60130.,WD 60130.
• Parties: Richard Lee BOLCH, Appellant, v. Barbara Lorain BOLCH, Respondent.
• Court: Missouri Court of Appeals

Page 769

78 S.W.3d 769

Richard Lee BOLCH, Appellant, v. Barbara Lorain BOLCH, Respondent.

No. WD 60130.

Missouri Court of Appeals, Western District.

May 31, 2002.

Rehearing Denied July 25, 2002.

As Modified July 30, 2002.

Sherrill P. Roberts, Liberty, for appellant.

Scott C. Hamilton, Lexington, for respondent.

Before HARDWICK, P.J., ELLIS and HOLLIGER, JJ.

LISA WHITE HARDWICK, Judge.

Richard Bolch (Husband) appeals the dissolution judgment awarding Barbara Bolch (Wife) maintenance. We affirm in part and reverse in part to modify the amount of maintenance awarded.

Factual and Procedural Background

Husband and Wife were married December 28, 1989, and separated December 17, 2000. Husband filed for dissolution of marriage on June 3, 2001. No children were born of the marriage.

At the time of trial in April 2001, Husband was fifty-eight years old, and Wife was fifty-nine years old. Husband's employment as an over-the-road truck driver was the primary source of the parties' income during the eleven-year marriage. Wife, a homemaker, did not work outside the home, other than occasionally making and selling crafts at crafts shows. Prior to the marriage, Wife worked at a spark plug factory.

On May 23, 2001, the trial court entered a dissolution judgment and ordered Husband to pay Wife maintenance of $1,000 per month through June 1, 2007. The court awarded the marital real estate to Husband and ordered him to pay Wife $42,750 to equalize the property distribution. Upon the parties' stipulation, the court equally divided their mutual fund accounts, awarding each party investments valued at $33,825.

Husband raises two points on appeal. First, he claims the trial court erred in awarding maintenance because Wife failed to meet the threshold requirements of § 452.335.1. Second, Husband claims the trial court erroneously applied the law in calculating maintenance because it failed to consider all of the factors required by § 452.3352.

Standard of Review

This court must affirm the trial court's decision awarding maintenance unless no substantial evidence supports it, it is against the weight of the evidence, or it erroneously declares or applies the law. Whitworth v. Whitworth, 878 S.W.2d 479, 483 (Mo.App. W.D.1994).

The trial court is afforded broad discretion in awarding maintenance. Id. An 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. W.D.1992). The burden is on the party contesting maintenance to prove that the maintenance award shocks the appellate court's sense of justice. Theilen v. Theilen, 847 S.W.2d 116, 123 (Mo.App. W.D.1992).

Maintenance may be awarded to a spouse who: 1) lacks sufficient property to provide for his or her reasonable needs, and 2) is unable to support him or herself through appropriate employment. § 452.335.1 Once the two-part threshold test is satisfied, the court considers the following factors under § 452.335.2 to determine the amount and duration of the maintenance award:

(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.

Entitlement to Maintenance

Husband contends Wife was not entitled to maintenance because there was insufficient evidence that: 1) she lacked sufficient marital property to provide for her reasonable needs; and 2) she was unable to support herself through appropriate employment. This challenge requires that we view the evidence in the light most favorable to the judgment and disregard all evidence and inferences to the contrary. Whitworth, 878 S.W.2d at 483.

At the time of trial, Wife was fifty-nine years old and had not been employed outside the home during the eleven-year marriage. When the parties married, Wife gave up her full-time job in a spark plug factory to become the primary caretaker of their home. Husband agreed to this arrangement, and the parties enjoyed a comfortable lifestyle from his income as an over-the-road truck driver. Once or twice a year, Wife made and sold items at craft shows, generating average annual proceeds of $1,000-$1,500. In 2000, she earned approximately 53,100 selling crafts. Wife testified that her reasonable monthly expenses totaled $2,165. As a result of the court's property division, Wife was awarded investment accounts valued at $33,825 and a cash equalization payment of $42,750.

Based on the property division and evidence presented, the trial court found that Wife lacked sufficient property to provide for her reasonable needs and was unable to support herself through appropriate employment. Husband argues this finding was erroneous because there was no evidence that Wife was unable to support herself with the property award of cash assets totaling $76,575 and through future employment. He contends Wife has an affirmative duty to seek employment with the goal of becoming self-sufficient. In re Marriage of Goodding, 677 S.W.2d 332, 337 (Mo.App.1984).

We have previously recognized that a spouse's decision to withdraw from the job market to assume duties as a homemaker can detrimentally affect the spouse's ability to provide for his or her reasonable needs upon dissolution of the marriage. Witt v. Witt, 930 S.W.2d 500, 504 (Mo.App. W.D.1996). Maintenance may be awarded where a spouse sacrificed employment to take care of the home and relied on the other spouse for monetary support. Id.

Wife presented sufficient evidence to demonstrate her entitlement to maintenance. During the marriage, the parties agreed that Wife would relinquish her career and rely on Husband's financial support to maintain a comfortable home for their mutual benefit. Now, with her advanced age and long-term absence from the work force, it is unlikely Wife could successfully compete in today's technological marketplace without acquiring new skills. Id. These facts established a rebuttable inference that Wife could qualify for little more than minimum wage employment. Husband failed to come forward with evidence that Wife was qualified for higher paying jobs which were available and could meet her reasonable needs. In re Marriage of Clarke, 950 S.W.2d 11, 14 (Mo.App. E.D.1997).

Husband similarly failed to show that Wife could support herself with the property award. Wife was not required to deplete her assets or consume the marital property before being entitled to maintenance. Whitmore v. Whitmore, 732 S.W.2d 572, 574 (Mo.App.1987). Husband was awarded the marital home; thus, Wife may need to use a portion of the equity payment to purchase another home. Wife should also be permitted to preserve the investment accounts for her later years, particularly since the maintenance payments will end when she reaches age sixty-five. While the property award may be used to meet some of her current needs, the court reasonably determined that it did not render her entirely...