Bull v. Bull, 43706

• Decision Date: 04 May 1982
• Docket Number: No. 43706,43706
• Parties: Ann K. BULL, Respondent, v. Charles L. BULL, Appellant.
• Court: Missouri Court of Appeals

Page 228

634 S.W.2d 228

Ann K. BULL, Respondent, v. Charles L. BULL, Appellant.

No. 43706.

Missouri Court of Appeals, Eastern District, Division Three.

May 4, 1982.

Michael J. McAvoy, St. Louis, for appellant.

Rene E. Lusser, St. Louis, for respondent.

REINHARD, Presiding Judge.

Husband appeals from several provisions of a dissolution decree dissolving the parties' marriage of 25 years. Pursuant to the decree, the wife was awarded her separate property, and a smaller proportion of the marital property, including the family home. Husband was awarded the balance of the marital property, including a 60% interest in a very successful dental supply business, Challenge Products, Inc. Wife was awarded custody of the two minor children and husband was ordered to pay child support and $2,000.00 a month for maintenance.

On appeal, husband alleges error in: 1) the amount and duration of maintenance; 2) the award of the marital property; and 3) the temporary custody provisions for the youngest child.

The decree must be affirmed if it is supported by substantial evidence, is not against the weight of the evidence, and neither erroneously declares nor applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Using this standard, we find the trial court's decree must be affirmed.

First, we consider the award of temporary custody of the youngest child, Stephen. The trial court in its decree awarded wife permanent custody but awarded husband temporary custody of Stephen on alternate Saturdays from 8:00 a. m. to 8:00 p. m., alternate Holidays of Thanksgiving, Christmas Day, New Years Day, Fathers Day, Memorial Day, Fourth of July, and Labor Day, commencing with Christmas Day, 1980 from 8:00 a. m. to 8:00 p. m. Husband contends he should have been allowed custody of his son overnight.

Our paramount concern is the best interest of the child. The trial court's judgment in the matter of temporary custody should not be disturbed unless the best interests of the child so demand. In re Marriage of Hallak, 559 S.W.2d 612, 613 (Mo.App.1977). Further, we should give deference to the trial court's assessment of what serves the best interest of the child. Hallak, 559 S.W.2d at 613-14.

At the time of the hearing, Stephen was age 11. Husband was living in a substantial home on the Lake of the Ozarks with his secretary. Although the trial court made no specific finding, it is apparent the court refused to grant husband overnight custody of his son because a woman not his wife was residing in husband's home. Under these circumstances, we cannot second guess the trial court's determination this arrangement was in the best interests of the minor child.

In his second point, husband attacks the $2,000.00 a month award of maintenance. We are guided by several well established principles. First, the determination of the amount of maintenance is a matter resting within the sound discretion of the trial court and it is husband's burden on appeal to demonstrate an abuse of that discretion. Naeger v. Naeger, 542 S.W.2d 344, 347 (Mo.App.1976). Also, in determining the amount of maintenance the trial court must balance the reasonable needs of the spouse seeking maintenance against the husband's capacity to pay. Sawtell v. Sawtell, 569 S.W.2d 286, 288 (Mo.App.1978). A husband's present and past earnings are evidence of such capacity. In re Marriage of Vanet, 544 S.W.2d 236, 242 (Mo.App.1976). To warrant appellate interference, the amount of maintenance must be patently unwarranted and wholly beyond the means of the spouse who pays maintenance. Sawtell, 569 S.W.2d at 288. Here, husband has not disputed that the reasonable needs of his wife merit $2,000.00 a month in maintenance, but does contend the award is excessive in light of his ability to pay.

With this in mind, we examine the record. The evidence revealed that husband had been very successful in the dental supply business for many years. He had been president of Credo, Inc., which was originally owned by his wife's father, but which at the time of trial was principally owned by his wife and her sister. In 1976, while still president of Credo, Inc., husband formed a new company, Challenge Products, Inc., also in the dental supply business. At the time of trial, he owned 55% of its stock, his wife owned 5% and the remainder was divided among his secretary and his two sons. As part of the decree, the trial court awarded wife's 5% interest to husband.

In September, 1979, shortly after separating from his wife, husband resigned as president of Credo, Inc. and devoted all of his energies to Challenge Products. All of Credo's employees and most of its customers followed husband to Challenge Products. Indeed, while with Credo, husband testified that he was "the business." This is evident because after he resigned, it ceased to be a going concern and had been liquidated at the time of trial.

In 1976, Credo, Inc. had sales of $180,000.00 and in the first...