Calhoun v. Calhoun

• Decision Date: 31 January 2005
• Docket Number: No. 26167.,26167.
• Citation: 156 S.W.3d 410
• Parties: Gloria CALHOUN, Appellant-Petitioner, v. John CALHOUN, Respondent-Respondent.
• Court: Missouri Court of Appeals

156 S.W.3d 410

Gloria CALHOUN, Appellant-Petitioner, v. John CALHOUN, Respondent-Respondent.

No. 26167.

Missouri Court of Appeals, Southern District, Division Two.

January 31, 2005.

Charles P. Todt, Tonya D. Fifer, The Todt Law Firm, P.C., St. Louis, Daniel R. Schramm, Daniel R. Schramm, L.L.C., Chesterfield, for appellant.

Susan S. Jensen, Pratt, Fossard, Jensen & Masters, LLC, Springfield, for respondent.

KENNETH W. SHRUM, Judge.

Gloria Calhoun ("Wife") appeals from a judgment dissolving her marriage to John Calhoun ("Husband"). Wife claims that the trial court committed reversible error when it (a) only awarded maintenance of $4,000 per month to her, (b) imputed income of $1,260 per month to her, and (c) allegedly failed to consider the future tax burden stemming from the award of an individual retirement account to her. This court affirms.

STANDARD OF REVIEW

The provisions of a divorce decree will be affirmed unless there is no substantial evidence to support them, they are against the weight of the evidence, or the trial court erroneously declares or applies the law. Hammer v. Hammer, 139 S.W.3d 239, 240[1] (Mo.App.2004). In making its maintenance determination, the trial court enjoys broad discretion, and its decision will not be overturned unless the appellant demonstrates an abuse of discretion. In re Marriage of Lindeman, 140 S.W.3d 266, 272 (Mo.App.2004). "Evidence is viewed in a light most favorable to the judgment, disregarding contrary evidence and deferring to the trial court's determination even if the evidence could support another conclusion." Id.

FACTS

The marriage between Husband and Wife lasted approximately twenty-three years. During this time, the couple produced two children, Tiffany (born August 21, 1981) and Justin (born April 25, 1984).

Husband obtained a master's degree in education, but left that field in 1982 to pursue a career as a stockbroker. This decision produced great financial results, as illustrated by Husband's gross income for 2002 ($535,795). In its Form 14 calculations, the trial court used that amount to set Husband's gross monthly income at $44,650.

Wife graduated from high school, but had no additional formal education. Her work experience included five years as a grocery store checker. Additionally, her work experience included real estate management. This real estate knowledge was gained during the time she worked for "the family business." The family business revolved around numerous rental properties.

In relation to at least some of these properties, Wife testified that she "did everything that really needed to be done," including cleaning the properties, renting the properties, and filing suit to collect unpaid rent monies. In relation to other properties (namely, two buildings containing sixteen apartment units), Wife oversaw the entire process, including review of the construction plans, decorating the units, and writing contracts. In fact, Wife became so savvy in real estate dealings that she "negotiated the sale price" of a home owned by the family which resulted in a profit of $1,000,000. From these acquired skills, Husband opined that Wife possessed employable skills for use in buying and selling real estate.

At the time of trial, Husband was fifty-one years old, and Wife was forty-eight. The evidence revealed that neither suffered from significant health problems that would preclude them from full-time employment.

In the judgment of dissolution, the trial court awarded Wife marital assets valued at $2,226,861. The court assigned to her responsibility for $189,068 in marital debt. Thus, the net equity in marital assets awarded Wife was $2,037,794, which represented 49.8% of the parties' net marital property. The marital property award to Wife included certain income-producing assets which the court found would generate over $8000 per month in income for Wife.¹ The court also imputed income of $1260 per month that Wife could earn if she obtained full-time employment. Wife will also receive almost $1000 per month in child support for the two children, and over $650 per month in support for Justin after Tiffany becomes legally emancipated.² In order to meet her reasonable needs, the court awarded to Wife $4000 per month as maintenance.

The court awarded to Husband marital assets totalling $10,093,589. The court assigned to him marital debt in the amount of $8,039,682; thus, Husband received net marital property in the amount of $2,053,907 which represented 50.2% of the net marital estate. As indicated above, Husband was ordered to pay maintenance and child support to Wife. Husband was also ordered to pay 100% of the children's college expenses, including "tuition, fees, books, and dormitory costs for room and board."

After entry of the dissolution judgment, Wife filed the instant appeal. In this appeal, Wife raises three points of alleged error. In general, these points relate to the amount of income the court believed Wife is capable of receiving each month. Because Wife's second point would affect our resolution of Point I, we address it at the outset.

Point II: Income Imputed to Wife

Wife's second point alleges the trial court committed reversible error when it imputed monthly income to her in the amount of $1260. In the argument section of her brief, Wife argues "that it was speculative for the trial court to have imputed any employment income to her at all under the facts and circumstances presented here." (Emphasis supplied.) Implicitly, it appears that Wife argues that she should not be required to work for the rest of her life.

A divorcing spouse has an affirmative duty to seek full-time employment. Breihan v. Breihan, 73 S.W.3d 771, 775[4] (Mo.App.2002). A court is allowed to impute income to a spouse seeking maintenance according to what that spouse could earn by use of his or her best efforts to gain employment suitable to his or her capabilities. Thomas v. Thomas, 76 S.W.3d 295, 303[19] (Mo.App.2002). In making this determination, a court should consider prior earning capacity, present wages, and probable future prospects. Linton v. Linton, 117 S.W.3d 198, 208[29] (Mo.App.2003).

The uncontradicted evidence showed that Wife was healthy and entirely capable of full-time employment. Although she was a housewife for the majority of the marriage, she had a high school diploma and previous work experience as a grocery store cashier. More importantly, she gained valuable work experience through the "family business." In fact, her real estate business acumen resulted in a profit of $1,000,000 through only one sale. Based on these facts, the court imputed income in the amount of $1260 per month or $7.27 per hour.³

Husband testified to what he believed Wife could earn using her real estate knowledge. The undisputed evidence showed that Husband had an abundance of experience with property dealings. Without objection, Husband testified that Wife had the necessary real estate skills to buy and sell property for profit. The couple had done so throughout their marriage. Also, without objection, Husband testified that Wife could earn a living by becoming a real estate agent. After becoming licensed, Husband claimed that Wife could earn between $50,000 to $75,000 yearly ($4167 to $6250 monthly). The trial court was free to believe Husband's testimony. Llana v. Llana, 121 S.W.3d 286, 290-91[8] (Mo.App.2003).

We find no abuse of discretion when the trial court imputed monthly income to Wife in the amount of $1260. The evidence supported a greater amount, but this has not been challenged on appeal; consequently, Wife cannot show prejudice.

Point I: Maintenance Award

In her first point, Wife alleges the trial court committed reversible error when it awarded "maintenance of only $4000 per month." She repeatedly asserts (both in her brief and at oral argument) that this amount of maintenance unfairly relegates her "to the status of a second class citizen."⁴ She argues that the high standard of living during the marriage, Husband's significant income, and the length of the marriage are factors which support a higher maintenance award.

As stated previously, a maintenance award falls within the sole discretion of the trial court. Lindeman, 140 S.W.3d at 272. "Judicial discretion is abused when the court's judgment is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock one's sense of justice and indicates a lack of careful consideration." Bonenberger v. Bonenberger, 108 S.W.3d 729, 733[10] (Mo.App.2003).

The trial court can award maintenance only if it finds that the spouse seeking maintenance (1) lacks sufficient property, including marital property apportioned to him or her, to provide for his or her reasonable needs and (2) is unable to support himself or herself through appropriate employment. § 452.335.1, RSMo (2000); D.K.H. v. L.R.G., 102 S.W.3d 93, 103 (Mo.App.2003). "In applying this standard, the trial court must first determine the reasonable needs of the party seeking maintenance." Id. at 103[19]. Then, the court must determine whether these needs could be met via the use of property or appropriate employment. Id.

It has been recognized "that in a marriage of lengthy duration where one spouse has foregone career development, the marital standard of living may serve as a guide in computing the spouse's reasonable needs." Hall v. Hall, 553 S.W.2d 864, 868 (Mo.App.1977). "However, an excessive standard of living does not equate to reasonable needs under the statute." Baldwin v. Baldwin, 905 S.W.2d 521, 525[15] (Mo.App.1995). Thus, a court should not apply a mechanical approach whereby the standard of living of the parties is determined and then divided by two. Brueggemann v. Brueggemann, 551 S.W.2d 853, 857 [2] (Mo.App.1977). This follows because maintenance is founded on need and issues for support and only for support. Booher v. Booher, 125 S.W.3d 354 [3], 357 (Mo.App.2004).

Further, a...