Bybee v. Bybee, 18966

• Decision Date: 20 July 1994
• Docket Number: No. 18966,18966
• Citation: 879 S.W.2d 793
• Parties: Donald Hobart BYBEE, Appellant, v. Joyce Esther BYBEE, Respondent.
• Court: Missouri Court of Appeals

Page 793

879 S.W.2d 793

Donald Hobart BYBEE, Appellant, v. Joyce Esther BYBEE, Respondent.

No. 18966.

Missouri Court of Appeals,

Southern District,

Division Two.

July 20, 1994.

Ralph W. Gilchrist, Bolivar, for appellant.

George R. Lilleston, Clinton, for respondent.

CHARLES B. BLACKMAR, Senior Judge.

The parties were married in 1963. Their children are emancipated. The marriage was dissolved in 1992. The court divided the marital property into substantially equal shares and this division is not questioned. The court also awarded the wife maintenance of $400 per month for ten years. The husband appeals, raising as his sole issue the propriety of the maintenance award.

The husband is employed as a dispatcher-technician for a telephone company. He earned $31,586 during the calendar year preceding the dissolution. The wife is a schoolteacher, whose annual salary at the time of the dissolution was $18,000, not including a voluntary annual payment of $2040 to her retirement fund.

The unusual feature of this case is that the husband had an Employee Stock Option Plan (ESOP), authorized by the Internal Revenue Code, by reason of which shares of stock in his employer, Missouri Telephone Company, could be acquired year after year with before-tax dollars, and dividends used to purchase additional shares without immediate tax incidence. The case is also unusual in that the shares of stock in the plan were sold for cash to ALLTEL, another telephone company, after the parties had separated but before the decree was entered. The purchase price was very attractive to the Missouri shareholders. The proceeds of the plan shares were deposited with a corporate fiduciary at the time of the decree, drawing interest while awaiting various approvals and elections. The husband's interest in the plan was valued at $1,410,020.50 at the time of the decree, of which the court awarded $705,010.25 to the husband and a like amount to the wife. The husband's share of the total marital property was $752,942.08, and the wife's share $754,382.41.

The wife, in support of her claim for maintenance, submitted an estimated statement of monthly expenses in the amount of $1586, and anticipated net income of $1120. The husband challenges her figures in several respects, asserting that the schedule contains a monthly charge for firewood which is needed for only five months of the year, that she included a continuing charge for college tuition in pursuit of a master's degree which she would complete within a year, and that she claimed the total payments on a deed of trust whereas the decree required her to pay only half of these payments. The husband also argues that she should include in her income the $2040 she voluntarily pays for retirement, and that she should work during the summer months. (She is licensed as a beautician and as a real estate salesperson.) The wife suggests that the schedule does not fairly reflect her outlay for health and automobile insurance. In the view we take of the case we do not have to resolve these contentions.

The husband argues that the proceeds of the ESOP shares should be considered in determining the wife's entitlement to maintenance. The wife, under 26 U.S.C. 414(p)(8) is an "alternate payee" under a qualified domestic relations order, and so is relieved of the 10% penalty which ordinarily attaches to the withdrawal of funds from a qualified retirement plan prior to normal retirement date. 26 U.S.C. Sec. 72(t)(2)(C). As an alternate payee, the wife had several options, as follows: (1) she could take all or part of the ESOP funds for her own use, in which event she would have to pay income tax on the funds; (2) she could "roll over" all or part of the funds into a qualified retirement account pursuant to 26 U.S.C. Sec. 402(c)(5), by reason of which she could avoid immediate tax consequences and accumulate income tax-free until her retirement time; or (3) she could invest the funds in an annuity, paying taxes only on funds withdrawn for her own use. 26 U.S.C. Sec. 72(t)(2)(A)(iv).

The right to maintenance is defined by Sec. 452.335, RSMo 1993 Supp., in the following terms:

1. 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....

Section 2 of the same statute enjoins the court to consider, among other things:

(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently....

Thus the award of maintenance is governed by statutory standards, and is not a matter of unregulated discretion. Maintenance is awarded only to meet demonstrated needs. In re Marriage of Tappan, 856 S.W.2d 362, 367 (Mo.App....