Buchholz v. Buchholz

• Decision Date: 07 July 2005
• Docket Number: No. 26034.,26034.
• Citation: 166 S.W.3d 146
• Parties: In re the Marriage of Susan D. BUCHHOLZ, Petitioner-Respondent, v. Scot A. BUCHHOLZ, Respondent-Appellant.
• Court: Missouri Supreme Court

166 S.W.3d 146

In re the Marriage of Susan D. BUCHHOLZ, Petitioner-Respondent, v. Scot A. BUCHHOLZ, Respondent-Appellant.

No. 26034.

Missouri Court of Appeals, Southern District, En Banc.

July 7, 2005.

COPYRIGHT MATERIAL OMITTED

James R. Sharp, Sharp & Bredesen, Springfield, for appellant.

Mark J. Millsap and J. Matthew Miller, Baird, Lightner, Millsap & Kollar, P.C., Springfield, for respondent.

PHILLIP R. GARRISON, Presiding Judge.

Scot A. Buchholz ("Husband") appeals a decree dissolving his marriage to Susan D. Buchholz ("Wife"), contending that the trial court erred in awarding Wife maintenance; in imputing income to him for the purposes of calculating child support and in determining the amount he should pay as maintenance; in requiring him to pay 85% of the children's medical expenses not covered by insurance; and in entering a judgment against him for back child support, attorneys fees "and other items." We affirm in part and reverse in part and remand.

Husband and Wife, who were married in May, 1981, had four children whose ages at the time of the judgment in this case ranged from twelve to twenty-two. Wife, who had less than a year of college, held various jobs during the marriage including that of retail salesperson at J.C. Penney's working for a business that maintained plants for commercial businesses, and working at a local hospital.

At the time of their marriage, Husband, who had two years of college, was employed as a salesperson by Colony Magnavox ("Colony"), a retail store selling televisions and other video and audio equipment. He progressed in that employment to becoming the operations general manager/assistant to the owner earning over $80,000. In February 1991, Husband and Wife purchased Colony under an agreement whereby the owner would finance the purchase over a period of five years.

Husband and Wife separated in September 1993 after twelve years of marriage. According to Husband the separation occurred because they "fell out of love" and their relationship deteriorated. Wife believed that the reason Husband moved out of the home was because he was involved with someone else. He later admitted that he had become romantically involved with Sue Rink, an employee of Colony. Wife did not file the petition to dissolve the marriage until May 2000 because Husband convinced Wife that a divorce would jeopardize the completion of the purchase of Colony as a provision in the contract gave the prior owner the option to call the loan at any time if he felt that his interests were in jeopardy. Husband did, however, make the house payments, paid health insurance on the children through the business, and paid Wife $2,000 per month.

Colony experienced financial difficulties. The evidence is conflicting about the reasons for those difficulties. For instance there was a suggestion that increased competition from discount retailers contributed to it. Wife presented evidence indicating that Husband mismanaged the business or squandered the profits. In any event, the physical location of the business was moved to a different building that required expenditures for improvements ("infill"). Husband negotiated with Village Bank to move his lines of credit loans there and to pay off loans at Firstar Bank. Those loans would have provided $115,000 for the infill needed at the new business location as well as new computer equipment. Village Bank, however, required a deed of trust on the marital home.

In the spring of 2000, Husband told Wife that she needed to sign documents in order for Village Bank to provide financing to the corporation. The documents she was asked to sign would have apparently included a deed of trust on the marital home, and Wife refused to sign them. She filed her petition for dissolution of marriage shortly thereafter, and Husband discontinued the monthly payments to her that he had been making previously.

Pursuant to an agreement between the parties, the trial court entered a temporary order on June 20, 2001, requiring Husband to pay the monthly mortgage payment of $1,142 on the family home, college tuition for a child that was then in college, the premium on a life insurance policy that named the children as beneficiaries, the premium on an auto insurance policy for the child that was in college, monthly dues to a "Family Center," and $2,100 per month in child support. Colony closed when Husband filed bankruptcy in March 2002, both personally and for the corporation, and he defaulted on the payments provided in the temporary order from February 2002 until at least December 2002.

Husband moved, with Sue Rink, to Kentucky in July 2002. Although Husband had earned between $118,200 and $180,550 in the years leading up to the bankruptcy,¹ he was without work until obtaining a job with an appliance retailer in Cincinnati, Ohio, in October 2002 earning $36,000 per year. In the intervening months he had sent at least thirty resumes to prospective employers, had been interviewed by a number of them, and accepted the only job offer he received.

The dissolution was heard in December 2002. The judgment entered by the trial court adopted findings recommended by the Family Court Commissioner. They included the following:

8. [Wife] is currently employed at two jobs in order to provide financially for herself and the children. The second job became necessary when [Husband] was no longer providing health insurance for the children. [Wife] works approximately 54-60 hours per week, consisting of full-time employment with Touch of Greenery (earning $12.00 per hour) and part-time employment with Cox Health Systems (earning $7.40 per hour). She has a total gross monthly income from her joint employments of $1,945 and a net monthly income form [sic] her employments of $1,572.

9. [Husband] currently resides near the Cincinnati, Ohio[,] area with his girlfriend, Sue Rink ... [and] is currently employed as a sales associate with H[.]H[.] Gregg Appliance and Electronics. The evidence at trial indicated that [Husband] was, in the immediate past, employed as the owner/President and General Manager of Colony Magnavox/Colony Home Entertainment ("Colony") at the Battlefield Road location. The evidence was that on or about March 6, 2002, [Husband] filed his personal (Chapter 7) bankruptcy Petition.... The evidence was that [Husband] has over 23 years of retail management and sales experience, with the last 19 years managing and operating the Colony business.

10. [Husband] testified that his financial demise and ultimate bankruptcy was brought about largely as a result of [Wife's] refusal to cooperate with respect to refinancing needed to keep the Colony business afloat. The Court finds [Husband's] testimony in this regard to be totally lacking in credibility. The Court finds the overwhelming evidence suggests that [Husband] repeatedly failed to provide requested financial records and information to lenders despite numerous requests from those lenders and creditors. In fact, the Court notes that Sue Rink, [Husband's] current live-in girlfriend (and former sales manager at Colony), is the one person who has apparently flourished financially in the aftermath of [Husband's] bankruptcy.

11. [T]he Court finds that [Husband] has the earning capacity to obtain management level type employment and to earn substantially more than the pay he receives at his current place of employment. Therefore, the Court imputes to [Husband] a gross monthly income of $12,083 (or a $145,000 annual income) based on his average annual income with Colony over the past three years. The Court finds that [Husband] is currently underemployed and is capable of earning at the level of income imputed herein if he in fact makes a good faith effort to maximize his income earning potential, which should not necessarily be limited to the Cincinnati, Ohio[,] area where he lives and resides with Sue Rink.

12. In accordance with the evidence presented, the Court finds that [Wife] lacks sufficient property, including property apportioned to her, to provide for her needs, and that after considering all relevant factors including those set out in Section 452.335 RSMo., [Husband] should pay [Wife] periodic maintenance as set forth in the Judgment. The court concludes that the [Wife's] reasonable monthly expenses total $5,680, as per [Wife's] Exhibit "2." The Court further finds that given the history of the parties and their economic status, the [Wife] has been the homemaker and primary caretaker of the children and has a net or disposable monthly income from her jobs totaling $1,572, from which to meet her reasonable needs. In contrast thereto, the Court finds that [Husband] has worked in an owner/management position in retail sales for a number of years and has generated annual incomes and salaries in excess of $180,000. The Court finds that [Husband's] average annual income over the past three (3) years totals $145,000. The Court finds that [Husband] is capable of earning $145,000 annually, based upon his education, training and employment history. Accordingly, the Court concludes that an appropriate income to be attributed to the [Husband] is $145,000 per year, or $12,083 per month.

13. The Court determines that [Husband] has net income producing ability to help meet [Wife's] reasonable needs, while at the same time meeting his own monthly expenses. The Court finds that [Husband's] net monthly income (based upon the $145,000 annual figure) is sufficient to meet his needs and pay the Court ordered child support and maintenance with consideration given to the fact that [Husband's] monthly expenses are shared with Sue Rink, with whom he now lives. The Court has considered conduct of the parties in making this determination and the Court specifically notes that [Husband] has either squandered, depleted or otherwise dissipated much of the parties' marital estate. The Court finds [Husband's] testimony as to his efforts to obtain alternative...