Butler v. Butler

• Decision Date: 27 December 1977
• Docket Number: No. 38228,38228
• Citation: 562 S.W.2d 685
• Parties: Richard Lee BUTLER, Respondent, v. Mary Kay BUTLER, Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 685

562 S.W.2d 685

Richard Lee BUTLER, Respondent, v.Mary Kay BUTLER, Appellant.

No. 38228.

Missouri Court of Appeals, St. Louis District, Division Three.

Dec. 27, 1977.

Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.

Application to Transfer Denied April 10, 1978.

David G. Lupo, St. Louis, for appellant.

William Gartenberg, Clayton, for respondent.

GUNN, Presiding Judge.

The parties to this dissolution proceeding were in their seventh year of marriage when they agreed that the marriage was irretrievably broken.At the time of the proceedings in 1976they had three minor children a daughter two years of age and twin sons less than a year old.The husband, a 1970 medical school graduate, was participating in a cardiology fellowship at Jewish Hospital.His 1976 income was estimated to be $13,000 from the fellowship and approximately $20,000 from part time work in the emergency room at Christian Hospital Northwest.There was no evidence that the husband owned any stocks or bonds, nor was there any evidence of the value of insurance policies held by him.The family home, purchased in 1971, cost $16,000, and $12,900 was still owed on it.The estimated value of the house was $30,000.Other marital assets were a 1974 Chrysler stationwagon and household furnishings having an estimated value of $5,000-$6,000.Cash in checking and savings accounts had been dissipated, according to the husband, for payments on the house, back taxes, loans and other bills.The wife's attorney established that there was considerable activity in deposits and withdrawals from the checking and savings accounts, but the only evidence before us is that the funds in the accounts had been exhausted.At the time of the proceedings, the husband was borrowing money for his living expenses, because the wife had attached his wages by garnishment proceedings.

Although the husband had reported taxable income of $56,980 in 1974, he testified that due to ill health, primarily a back ailment incurred in an accident, he could no longer endure the rigors of general medical practice nor perform at more than one place of work.Consequently, the husband preferred to limit his work to academic medicine:

". . . I've considered practice at various times, but I've decided for my health and my interests that what I'm interested in is research and I want to go into academic medicine."

The tenor of the husband's testimony was that in the future he would be working less and at a reduced income.

The wife, prior to the marriage, completed three years of college, with a major in psychology.Her last work experience was in July, 1970 as a railway clerk at a salary of $600 per month.She terminated her employment when the husband completed his medical school studies.Her estimated monthly living expenses were $1,345 without regard to medical, dental or educational expenses for the children.

There was testimony from the wife that she was both healthy and unhealthy.¹The wife contends that one of the twin boys is afflicted with cerebral palsy, requiring extensive medical treatment and expenses.The husband's analysis of his son's illness was that it was not as debilitating as depicted by the wife.But the husband did acknowledge the need for treatment for the son.²The wife was also anxious for her daughter to attend a private Montessorial school costing $1,500 in yearly tuition.

Finding no unique issues regarding the dissolution, the trial court awarded the wife the automobile, the household furniture, $150 per month child support for each of the two healthy children and $225 per month for the son with the health problem.The wife was also awarded as maintenance $250 per month for 24 months through June 30, 1978.The husband and wife were ordered to each pay one half of the $152 monthly house payment.Possession of the house was awarded to the wife until the youngest child reached the age of 21 or until the wife remarried.On the happening of either event the house was to be sold with the proceeds divided equally between the parties.

The trial court noted that the wife's attorney had been paid $2,500 in attorney's fees and awarded an additional $1,000 in fees to be paid by the husband.

The wife's appeal from the judgment presents a number of convoluted points for our consideration, but when sifted through the legal colander, the points of appeal refine to the basic issue of whether the trial court was too parsimonious in its award, and, hence, was guilty of an abuse of discretion.

We agree with the trial court that this case offers no novel theory of law to be resurrected for future guidance.Consequently, a full inditement of the pertinent law to the simple issue here presented is not warranted nor would it provide a necessary...