Brueggemann v. Brueggemann, 36374

• Decision Date: 05 April 1977
• Docket Number: No. 36374,36374
• Citation: 551 S.W.2d 853
• Parties: Irwin A. BRUEGGEMANN, Petitioner-Respondent, v. Erma Glen BRUEGGEMANN, Respondent-Appellant. . Louis District, En Banc
• Court: Missouri Court of Appeals

Page 853

551 S.W.2d 853

Irwin A. BRUEGGEMANN, Petitioner-Respondent, v. Erma Glen BRUEGGEMANN, Respondent-Appellant.

No. 36374.

Missouri Court of Appeals, St. Louis District, En Banc.

April 5, 1977.

Motion for Rehearing or Transfer Denied June 9, 1977.

Application to Transfer Denied July 11, 1977.

Robert E. Morley, O'Fallon, for respondent-appellant.

Hanks, Taylor & Suddarth, W. Morris Taylor, Clayton, for petitioner-respondent.

McMILLIAN, Judge.

The opinion of April 6, 1976, handed down in this case has been withdrawn since the court en banc sustained the motion for rehearing and the cause was reargued and resubmitted on June 11, 1976, before an expanded panel of the court.

Erma Brueggemann appeals certain provisions of a decree of dissolution entered under the New Dissolution of Marriage Act. ¹ Neither party contends the marriage was other than irretrievably broken nor challenges those portions of the decree relating to child custody, visitation and division of the marital property. Appellant, however, asserts that the court erred in (1) finding that she had sufficient property to provide for her reasonable needs, was able to support herself by appropriate employment and was, therefore, not entitled to an award of maintenance; (2) granting $150 per month as child support which award she contends was inadequate; and (3) failing to award the full amount of her claimed attorney's fees.

At dissolution of this 31-year marriage, the court granted appellant custody of one minor child born November 11, 1960, and $150 per month for child support. By division of the marital property, appellant received the marital home valued at $20,000 to $25,000; a $1,000 life insurance policy with a cash value of $325; two cemetery lots valued at $1190 subject to a $325 debt; checking and savings accounts of about $700; a 1973 Buick subject to debt of approximately $2700, and all of the household furnishings remaining in the home. Respondent received sole possession of a car valued at $2500; life insurance policies with a cash value of $3,000; his checking and savings accounts amounting to approximately $1,000 to $1,400 and the sole right to his retirement annuity fund available at the age of 68 which, at the time of trial, had a balance of more than.$19,000. Respondent was ordered to pay off the house mortgage indebtedness of $3,400.

The trial court found an award of maintenance to be unjustified, noting that:

". . . the court further finds that having heard evidence presented by both parties concerning the conduct of each party to this proceeding that there was not sufficient evidence to justify any preference to one party or the other party relating to the division of personal property, or to justify a period of temporary support in the form of maintenance to either party, each party having given the other sufficient indignities to cause a dissolution of the marriage; the court further finds that both Petitioner and Respondent are well and of good health and able to work and in fact, that both Petitioner and Respondent are employed full time at present. . . ."

At the time of the trial, both parties were in their early fifties. Three children had been born of the marriage. Only one child remained unemancipated, a son born November 11, 1960. For most of the 31 years of the marriage, the wife had stayed at home to supervise the children. Approximately six years before the dissolution, the wife became employed as an insurance clerk at a savings and loan institution. The ostensible motivation for obtaining this employment was to "help with the children's college expenses." As a result of surgery in the year before the dissolution, appellant missed two and a half to three month's work but has missed very little time since returning to work. She experiences some high blood pressure which is controlled by medication. Every two weeks appellant receives gross pay of $250.17 and net take-home pay of $189.94. Her income statement filed with the trial court stated approximately $5600 as net income for 1973. She participates in a thrift savings plan to which both she and her employer contribute. The wife estimated that over $300 had accumulated in this fund.

The husband had been employed for approximately 27 years at St. Louis University. At the time of trial, he directed the school of radiology of the orthodontic section of the university. Including a raise received just prior to the trial, the husband earned for these services gross pay of $1333.31 per month and net pay after deductions of $861.00 per month. For some years, he had supplemented this income with fees received for consultation on radiology techniques. The pre-tax income from this consultation practice was approximately $3000 per year. The husband testified, however, that this additional income would "decrease considerably" due to the university's acquisition of new laminographic equipment. The husband participated in a pension plan at the university. At the time of trial, the husband's interest in the plan was valued at approximately.$19,000. He testified that no money could be received under the plan until he became 68 years old in 1988.

Both parties filed expense statements in the trial court. The wife claimed expenses of $10,325 per year for herself and the minor child. The husband claimed that his expenses totalled approximately $8600 per year.

The remainder of the testimony at trial consisted of charges and countercharges of misconduct. We do not recount this testimony because we agree with the trial court that the testimony does not justify any preference for either party in terms of the provisions of the dissolution decree.

Our review in this court-tried case is circumscribed by the principle that:

". . . the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law."

Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Under that standard, we affirm the actions of the trial judge in this close case. However, in light of the procedural course of this case and the current dearth of judicial interpretations of the still new dissolution act, we take this opportunity to briefly analyze the portions of that act involved in the present case.

Maintenance Section 452.335 ² now controls questions of maintenance in dissolution proceedings. By the statute the trial court is directed to make provision for the reasonable needs of the spouse seeking maintenance. Subsection 1 of the statute indicates that, if possible, such reasonable needs are to be met by the income of the spouse seeking maintenance and the trial court's division of property. Where the combination of these two financial sources is inadequate to provide for the reasonable needs of the spouse seeking maintenance, an award of maintenance may be made to raise the spouse's financial status to the reasonable needs level. The amount and duration of any such award are determined in light of the non-exclusive factors listed in subsection 2 of the statute.

To logically proceed under the statute, the trial judge must make a threshold determination of the reasonable needs of the spouse seeking maintenance. Only then can the judge know whether any maintenance is necessary. The difficulty is that the statute seemingly offers no guidance to the trial judge in making this determination. In our opinion, the term "reasonable needs" must be defined in terms of the policies embodied in the new dissolution law.

Section 452.335 of the Act signals marked departures from the prior law. Maintenance may be granted either spouse as contrasted with the traditional "alimony-for-the-wife only" concept. Factors relating to fault during the marriage are eliminated, except for consideration of the conduct of the party seeking maintenance, evincing a legislative intent to remove any punitive quality as to the party providing maintenance. Specification in the statute of the earning capacity of the spouse seeking maintenance and the division of property as the principal means of provision for the reasonable needs of the spouse seem to reflect a legislative intent to avoid, if possible, the imposition of continuing financial obligations to the spouse seeking maintenance. There is a new emphasis on the self-sufficiency of both parties following the dissolution, see In re Marriage of Neubern, 535 S.W.2d 499, 503 (Mo.App.1976).

The emphasis on self-sufficiency does not, however, require us to totally ignore the fact that a marriage did exist. In many marriages by tacit or express agreement, the wife remains at home and cares for the children and foregoes her opportunity to develop a career or acquire job experience. Where such a spouse has been out of the job market for extended periods, an independent determination of her appropriate lifestyle and earning capacities may be difficult or impossible. In such a case it may be proper for the court to place greater emphasis on the lifestyle enjoyed during the marriage, the duration of the marriage and other traditional factors. At least two of the factors enumerated in subsection two of the statute direct the court to consider the circumstances of the marriage in computing any maintenance award necessary to raise the spouse's financial status to the reasonable needs level. Consideration of the duration of the marriage, § 452.335, subd. 2(1)-(4) and the standard of living established during the marriage, § 452.335, subd. 2(1)-(3) recognizes that the earning capacity of either spouse is properly considered as a partnership asset.

We are not suggesting a mechanical approach by which the standard of living of the parties is determined and then divided by two. Such an approach would produce results contrary to the results in other Missouri cases, e. g., Nixon v. Nixon, 525 S.W.2d 835 (...