Bullard v. Bullard, 68143

• Decision Date: 27 August 1996
• Docket Number: No. 68143,68143
• Citation: 929 S.W.2d 942
• Parties: Sharon BULLARD, Petitioner-Appellant, v. Steven BULLARD, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 942

929 S.W.2d 942

Sharon BULLARD, Petitioner-Appellant, v. Steven BULLARD, Respondent-Respondent.

No. 68143.

Missouri Court of Appeals,

Eastern District,

Division Five.

Aug. 27, 1996.

Susan K. Roach, Chesterfield, for Petitioner-Appellant.

Corinne R. Coston, Law Offices of Mary Ann Weems, Clayton, for Respondent-Respondent.

HOFF, Judge.

This appeal follows a dissolution of marriage decree. Sharon Bullard (Wife) challenges the trial court's: (1) award of maintenance to Steven Bullard (Husband); (2) failure to order Husband to pay child support including retroactive support; (3) division and designation of property; and (4) failure to order Husband to pay Wife's attorney fees. We affirm in part; reverse in part and remand with instructions.

The parties were married on August 10, 1981. Their only child was born on April 7, 1985. Wife filed for divorce on May 11, 1992.

At trial, the court adopted a stipulation between the parties giving the parties joint legal and physical custody of the minor child pursuant to the guidelines found in Siegenthaler v. Siegenthaler, 761 S.W.2d 262 (Mo.App.1988). A decree of dissolution of marriage was issued on March 1, 1995. The decree dissolved the marriage and incorporated the custody stipulation by reference. The trial court found that "[b]ased on the agreement of the parties that they shall have joint physical custody of the minor child[,] ... application of child support guidelines would be unjust or inappropriate." No child support was ordered. Wife was ordered to pay maintenance of $500 per month to Husband, subject to modification.

The trial court awarded each party their separate property. In its order, the trial court identified the marital property and approximate values if known. The trial court awarded Wife $66,375 of the marital assets and property of unknown value. Husband was awarded $68,248 of the marital assets and property of unknown value. As part of his award, Wife was ordered to pay Husband $20,876 on or before June 1, 1995, plus interest at nine percent if payment was delinquent. A lien for this amount was placed on the residence located at 15487 Duxbury Way to secure the debt. No attorneys' fees were awarded to either party. In addition, the trial court found that Wife had engaged in marital misconduct. Wife appeals from the trial court's decree.

The standard applied when reviewing a decree of dissolution is the same applied when reviewing any court tried action. Frisella v. Frisella, 872 S.W.2d 637, 640 (Mo.App.1994). 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). Additionally, we will defer to the trial court's determinations as to the credibility of witnesses. Brawley v. McNary, 811 S.W.2d 362, 365 (Mo. banc 1991).

In her first point, Wife contends the trial court erred in awarding Husband $500 per month as periodic maintenance. Wife argues that Husband failed to make a showing of need pursuant to § 452.335.1(1)-(2) RSMo 1994. Additionally, Wife contends the factors under § 452.335.2(1)-(10) RSMo 1994, to be considered when an award of maintenance is warranted, were not established in the record justifying the award to Husband.

An award of maintenance is a matter resting within the sole discretion of the trial court. Holmes v. Holmes, 878 S.W.2d 906, 910 (Mo.App.1994). This Court's review of a maintenance award is limited to a determination of abuse of discretion by the trial court. Id. The party challenging a maintenance award has the burden of showing the trial court abused its discretion in giving the award. Vehlewald v. Vehlewald, 853 S.W.2d 944, 953 (Mo.App.1993).

The purpose of maintenance is to assist a spouse who is unable to be self-supporting through appropriate employment. Schoolcraft v. Schoolcraft, 869 S.W.2d 907, 909 (Mo.App.1994). A divorcing spouse has an affirmative duty to seek appropriate full-time employment after dissolution. Chambers v. Chambers, 910 S.W.2d 780, 784 (Mo.App.1995).

Section 452.335.1 RSMo 1994 sets forth the threshold test for an award of maintenance. It states:

In a proceeding for ... dissolution of marriage ..., the court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance:

(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and

(2) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

§ 452.335.1(1)-(2) RSMo 1994 (emphasis added).

We review the trial court's factual findings to determine if they were supported by substantial evidence. We find the trial court abused its discretion in awarding maintenance to Husband. The second threshold factor, § 452.335.1(2) RSMo 1994, is dispositive of the issue.

There was not substantial evidence to support the trial court's implicit finding that Husband was unable to support himself through appropriate employment. The evidence indicated Husband was forty years old at the time of trial and had one and one-half years of college education. He was not physically or mentally disabled. His work history showed he had worked off and on at part-time jobs and attended college sporadically during the first few years of the marriage. After the couple's child was born in 1985, Husband became the child's full-time caretaker until early 1988 when he started his first "at home" business. When Husband started working full-time out of the home, the child was sent to day-care. Husband continued to work full-time out of the home until the couple separated in 1992.

Husband and Wife's tax forms were admitted into evidence at trial. Although neither party provided this Court with any exhibits, the transcript indicates Husband's income was $46,050 in 1990, $44,350 in 1991, and $46,050 in 1992. Husband testified his income was $13,500 in 1993. This figure was contested by Wife because Husband failed to produce checks paid from Husband's "at home" business during January, June, August, November and December of 1993. Additionally, although Husband claimed no income in 1994, he had listed $4,000 as monthly income on a loan application. There was no evidence at trial to support a conclusion that Husband's ability to work and earn was impeded in any way.

Testimony at trial indicated Husband was educated and not disabled. Furthermore, Husband had a work history that showed his skills and ability to work. Husband's income exceeded $40,000 in the three years prior to the couple's separation, Husband was "not unable" to support himself through appropriate employment, and Husband was not the full time caretaker of the child. Keeping in mind the purpose of maintenance and the goal of self-sufficiency, we find the trial court abused its discretion in awarding maintenance to Husband. The trial court's grant of maintenance to Husband is reversed with instruction to award no maintenance to Husband on remand.

In her second point, Wife asserts the trial court erred in denying her an award of child support. In its decree, the trial court did not award child support to either parent. Rather, the trial court found the child support guidelines were unjust and inappropriate and no award was necessary because of the joint physical custody stipulation.

Rule 88.01 and Civil Procedure Form No. 14 mandate presumed child support amounts. Allen v. Allen, 811 S.W.2d 58, 59 (Mo.App.1991). There is a rebuttable presumption that the amount of child support calculated pursuant to Form 14 is the amount of child support to be awarded. Rule 88.01(e). The presumption is sufficiently rebutted if the trial court finds the amount of child support calculated is "unjust or inappropriate" after consideration of all relevant factors. Id.

Given our disposition on the first point denying maintenance to Husband, the second point regarding child support must also be reversed and revisited at the trial level. The trial court should require the parties to comply with the mandates of Rule 88.01 and reconsider all relevant factors regarding child support. As in every case, the trial court need not accept the amount of income indicated by the parties as accurate and may impute income in appropriate instances.

In her third point, Wife asserts five separate arguments to support her contention that the trial court's division of marital property was erroneous.

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