Cohen v. Cohen
| Decision Date | 23 April 2002 |
| Docket Number | No. WD 59066.,No. WD 58838.,No. WD 58810.,No. WD 59043.,WD 58810.,WD 59043.,WD 59066.,WD 58838. |
| Citation | 73 S.W.3d 39 |
| Parties | Harry B. COHEN, M.D., Appellant-Respondent, v. Ann M. COHEN, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
James A. Kessinger and John R. Shank, Kansas City, MO, for Appellant-Respondent.
Milt Harper and Leslie Ann Schneider, Columbia, MO, for Respondent-Appellant.
Before: EDWIN H. SMITH, P.J., and HOWARD and HOLLIGER, JJ.
Harry B. Cohen appeals the judgment of the Circuit Court of Boone County dissolving his marriage to the respondent, Ann M. Cohen, with respect to the court's division of marital property and its awards of maintenance and attorney's fees to the respondent. The respondent cross-appeals the trial court's award of maintenance.
The appellant raises four points on appeal. In Point I, he claims that the trial court erred in awarding maintenance to the respondent because in finding that she did not have sufficient property awarded to her in the dissolution to provide for her reasonable needs, as required by § 452.335.11 to justify such an award, it abused its discretion in failing to consider the portion of the appellant's retirement funds awarded to her as marital property. In Point II, he claims that the trial court erred in awarding the respondent maintenance of $800 per month, based upon the court's finding that she had reasonable monthly needs of $7,354, because the record was insufficient to support such a finding. In Point III, he claims that the trial court erred in ordering him to pay the respondent $362,500 in cash within 90 days of the entry of the judgment of dissolution to effectuate an equal distribution of marital property, specifically the parties' art business valued at $600,000, and their marital home, valued at $125,000, because it resulted in an "unfair and unequal" division of the property in favor of the respondent. In Point IV, the appellant claims that the trial court erred in awarding the respondent attorney's fees of $41,751 because in doing so, the court did not consider, as required by § 452.355, the respondent's financial resources to pay her own fees and her actions during the pendency of the dissolution proceeding in that the trial court awarded her over $1.4 million in marital property, which could have been used to pay her legal fees, and her conduct during the dissolution proceeding unnecessarily increased her attorney's fees.
The respondent raises two points in her cross-appeal. In Point I, she claims that "[t]he trial court erred in determining the amount of maintenance in its finding that the respondent's need of maintenance was the sum of $800.00 per month until she reaches the age of 59 ½ upon the same shall end because the evidence presented indicated that wife's income, including earned income and interest income was insufficient to meet her monthly expenses and that there was insufficient evidence to support a finding that the marital property awarded to Wife would be producing sufficient income to pay Wife's reasonable expenses and Wife was in need of an award of maintenance exceeding $800.00 per month." In Point II, she claims that the trial court erred in ordering its maintenance award to her to terminate when she reaches the age of 59 ½ because there was no substantial evidence of an impending change in the financial circumstances of the parties to justify its termination.
Affirmed in part; reversed in part and remanded.
The parties were married on February 17, 1973. At the time of the marriage, the appellant was in his third year of medical school and the respondent was in her first semester of graduate school working towards a master's degree in nutrition. After the parties' marriage, the appellant graduated from medical school and became a practicing anesthesiologist, while the respondent earned her master's degree and worked part time as a registered dietician. During the course of the marriage, the parties founded and operated the Harco Art Gallery. Three children were born of the marriage: Louis, born September 4, 1974; David, born January 24, 1977; and Elizabeth, born March 7, 1987. The parties separated on or about May 20, 1999.
On May 24, 1999, the appellant filed a petition in the Circuit Court of Boone County, seeking to dissolve the marriage of the parties. In his petition, he requested, inter alia, that the circuit court: dissolve the marriage; divide the parties' property and debts; award the parties joint legal and physical custody of the one minor child, Elizabeth, with the appellant to have primary physical custody; and order child support to be paid in accordance with Rule 88.012 and Form 14. On June 22, 1999, the respondent filed her answer to the appellant's petition and her counter-petition. In her counter-petition, the respondent, inter alia, prayed for an award of maintenance; attorney's fees and costs; and sole custody of the minor child. The appellant filed an answer to the respondent's counter-petition on June 28, 1999.
On September 1, 1999, the respondent filed a motion for temporary child support, maintenance and attorney's fees; and exclusive possession of the marital home. The respondent also requested a temporary restraining order against the appellant, restraining him from transferring or disposing of any marital property. On September 9, 1999, the trial court awarded the respondent temporary physical custody of Elizabeth, temporary child support of $1,769 per month; and temporary maintenance of $2,000 per month. While not granting the respondent exclusive possession of the marital home, the court did order that the appellant's access was to be limited and that he was to make the monthly mortgage payments and pay the monthly utilities. The respondent was also awarded suit money of $8,751 for attorney's fees and $2,000 for expert witness's fees. On January 18, 2000, the respondent filed a motion for additional fees and expenses, which the court sustained on February 8, 2000, awarding her $5,000 in additional attorney's fees.
The parties' case was heard on April 4-5, 2000. The trial court took the matter under advisement and entered its judgment dissolving the marriage on May 25, 2000. In its judgment dissolving the marriage, the trial court awarded the respondent sole physical custody of the minor child, with joint legal custody to the parties and child support of $1,856 per month to the respondent. The court also awarded the respondent non-modifiable, terminable maintenance of $800 per month and additional attorney's fees of $15,000, and divided the marital property and debts.
On June 22, 2000, the appellant filed a motion for new trial or, in the alternative, to reopen the evidence and amend or modify the trial court's judgment. The respondent filed a motion to amend the trial court's judgment on June 23, 2000, and a first amended motion to amend the judgment on June 29, 2000. After a hearing on July 6, 2000, the trial court overruled the motions of the respective parties.
This appeal follows.
In Point I, the appellant claims that the trial court erred in awarding maintenance to the respondent of $800 per month because in finding that she did not have sufficient property awarded to her in the dissolution to provide for her reasonable needs, as required by § 452.335.1 to justify such an award, it abused its discretion in failing to consider the portion of the appellant's retirement funds awarded to her as marital property. Specifically, he claims that from the evidence it was undisputed that the portion of his retirement funds awarded to the respondent as marital property was readily available to her such that it could produce annual income sufficient to pay, in whole or in part, her reasonable expenses, without depleting the principal amount of the funds that were awarded to her.
"An award of maintenance is a matter resting within the sole discretion of the trial court." Shelton v. Shelton, 29 S.W.3d 400, 403 (Mo.App.2000) (citation omitted). When reviewing such an award, our inquiry is limited to determining whether the trial court abused its discretion. Id. If reasonable minds can differ as to the propriety of the action taken by the trial court, then it cannot be said that the court abused its discretion. Stangeland v. Stangeland, 33 S.W.3d 696, 700 (Mo.App.2000). We will find an abuse of discretion as to an award of maintenance only where the award shocks our sense of justice. Coble v. Coble, 931 S.W.2d 206, 210 (Mo.App.1996). When determining whether the trial court abused its discretion in awarding maintenance, we will review the evidence "in a light favorable to the decree, disregarding evidence to the contrary and deferring to the trial court even if the evidence could support a different conclusion." Keller v. Keller, 18 S.W.3d 589, 593 (Mo.App.2000) (citations omitted).
Section 452.335, which governs an award of maintenance, provides a two-part threshold test for determining the propriety of such an award. McIntosh v. McIntosh, 41 S.W.3d 60, 67 (Mo.App.2001). It reads:
1. In a proceeding for nonretroactive invalidity, dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, 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. Under the first part of the test, the spouse seeking maintenance must show that he or she lacks sufficient property to provide for all of his or her reasonable needs. Childers v....
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