Bond v. Bond

• Decision Date: 21 May 2002
• Docket Number: No. ED 79208.,ED 79208.
• Citation: 77 S.W.3d 7
• Parties: Laura A. BOND, Respondent, v. Ray Dale BOND, Appellant.
• Court: Missouri Court of Appeals

77 S.W.3d 7

Laura A. BOND, Respondent, v. Ray Dale BOND, Appellant.

No. ED 79208.

Missouri Court of Appeals, Eastern District, Division Two.

May 21, 2002.

Mary Ann Weems, Clayton, MO, for Respondent.

David L. Baylard, Christopher W. Jensen, Union, MO, for Appellant.

GEORGE W. DRAPER III, Judge.

Ray Bond (hereinafter, "Husband") appeals the trial court's judgment and decree of dissolution from Laura Bond (hereinafter, "Wife"). Husband challenges the judgment in three respects. First, Husband claims the trial court erred in its award of maintenance to Wife. Second, Husband challenges the court's award of child support because the trial court did not impute income to Wife. Finally, Husband claims the trial court erred in finding certain monies received by Wife during the marriage were marital debts as opposed to advances on her inheritance. We affirm in part, reverse and remand in part.

Husband and Wife married on March 12, 1988. Two children were born to the marriage, a daughter and a son. The son has had to be hospitalized for behavioral problems, and he has been diagnosed with attention deficit hyperactive disorder, bipolar personality, and oppositional defiant behavior. The custody issues involving the children were resolved by stipulation of the parties before trial.

Wife is employed part-time at $7.50 per hour and works an average of twenty hours per week. Wife had earned previously $10 per hour working full-time for 10 years in the 1980s and 1990s. Wife has not been employed full-time, however, since the couple's daughter was born in 1993. Wife was offered employment in November 1999 at a rate of $10 per hour, but she was prohibited from taking that offer due to son's hospitalization. Wife has a high school diploma and is taking steps to further her education through computer training.

Husband is employed as a union electrician where he earned in excess of $60,000 per year in 1998 and 1999. Husband's company was bought out, and he was offered a position with the new employer. Husband testified that his income decreased to approximately $50,000 per year, and he offered into evidence his paycheck stub from his new employer which indicated a monthly gross income of $3,920. Husband had opportunities to work overtime with his previous employer although the record does not reveal how much of his income was attributable to overtime. Husband was not permitted to speculate as to how much overtime he would receive in the future.

The couple lived beyond their means and incurred substantial marital debt which included large sums of money borrowed from Wife's family. These monies have been described as "loans" by Wife and "advances on her inheritance" by Husband. Husband claimed he was unaware of a majority of these monies and that Wife used them for unknown and nonmarital purposes. Wife claims these monies were loans that they, as a couple, were obligated to repay and that the proceeds were used for marital purposes.

The couple separated in May 1999 after several instances of "exhibiting appalling behavior" toward each other. The trial court awarded Wife $750 per month maintenance and $832 per month child support based upon its own Form 14 calculation.¹ Further, the trial court determined that Husband was responsible for a portion of the "loans" from Wife's family because he did not rebut the presumption that the monies were marital debts. Husband appeals.

A dissolution decree must be affirmed if it is supported by substantial evidence, it is not against the weight of the evidence, and it neither erroneously declares nor applies the law. Sanders v. Sanders, 933 S.W.2d 898, 899 (Mo.App. E.D.1996). We must accept as true all evidence and permissible inferences in the light most favorable to the decree and disregard all contrary evidence and inferences. Swyers v. Swyers, 34 S.W.3d 848, 849 (Mo.App. E.D.2000). Where there is a conflict in the testimony, we defer to the trial court's determination of the credibility of the witnesses. Mund v. Mund, 7 S.W.3d 401, 403 (Mo. banc 1999).

Husband's first point on appeal challenges the trial court's award of maintenance in the amount of $750 per month to Wife in that the award failed to meet the requirements of Section 452.335 RSMo (2000). Husband claims there was substantial evidence to support a finding that Wife was able to support herself through full-time employment, there were no special conditions which make it inappropriate for her to work full-time, and Wife had full-time employment previously during the marriage. Husband also claims that such a high maintenance award results in Husband being unable to meet his reasonable needs.

Maintenance awards are reviewed only for abuse of discretion. Rios v. Rios, 935 S.W.2d 49, 52 (Mo.App. E.D. 1996). To establish that the trial court abused its discretion in making a spousal maintenance award, the complaining party must show that 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. Goodin v. Goodin, 5 S.W.3d 213, 216 (Mo.App. S.D.1999). 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. Id.

Wife is employed part-time and works an average of twenty hours per week. However, Wife testified that she hoped the position would become full-time and that there was an opportunity to work additional hours. Also, Wife has not been employed full-time since 1993. Wife has a high school diploma and is taking steps to further her education through computer training.² Moreover, even though Wife was offered employment at a rate of $10 per hour, the trial court found there was credible evidence that she was prohibited from taking that offer due to her son's hospitalization and his needs. Therefore, the trial court did not abuse its discretion in the award of maintenance because there was substantial evidence in the record to support the award. Point denied.

Husband's second point on appeal claims the trial court erred in its award of child support for three reasons. First, Husband argues the trial court abused its discretion in failing to impute income to Wife because Wife was underemployed purposefully. Second, Husband argues the court imputed excessive income to him because his monthly income was no more than $5,000 per month. Finally, Husband claims the trial court failed to provide Husband with the proper custody adjustment when the parenting plan awarded him more than seventy-two overnight visitations periods with the children.

Upon reviewing a child support award, this Court will not substitute its judgment for that of the trial court absent a manifest abuse of discretion, and ...