Coleman v. Coleman, ED 92564.

• Decision Date: 21 September 2010
• Docket Number: No. ED 92564.,ED 92564.
• Citation: 318 S.W.3d 715
• Parties: Delisa L. COLEMAN, Appellant,v.Duane L. COLEMAN, Respondent/Cross-Appellant.
• Court: Missouri Court of Appeals

318 S.W.3d 715

Delisa L. COLEMAN, Appellant,v.Duane L. COLEMAN, Respondent/Cross-Appellant.

No. ED 92564.

Missouri Court of Appeals,

Eastern District,

Division One.

June 22, 2010.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 28, 2010.

Application for Transfer Denied

Sept. 21, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Merle Silverstein, Clayton, MO, Michael Gross, co-counsel, St. Louis, MO, for appellant.

Joanne Descher, St. Louis, MO, for respondent.

NANNETTE A. BAKER, Judge.

Introduction

Duane and Delisa Coleman were granted a dissolution of marriage on November 12, 2008. Delisa appeals from the trial court's award of monthly maintenance to her and its method of valuation of Duane's interest in the Lewis Rice & Fingersh, L.C. (“Lewis Rice”) law firm. Duane cross appeals from the trial court's award of attorney's fees to Delisa and from the trial court's division of marital property. We find no error and affirm.

Factual and Procedural Background

The Colemans married in 1991. At the time of their marriage, Duane was working as an associate attorney at Lewis Rice and Delisa was working full-time as a registered surgical nurse. The Colemans' only child was born November 15, 1998.

On September 24, 2005, Duane purchased an upgraded diamond engagement ring and gave it to Delisa as a reconciliation gift after she dismissed a previous petition for dissolution of marriage.

On July 13, 2007, Delisa filed the current petition for dissolution of the marriage. Duane timely answered her petition and filed a counter petition for dissolution of the marriage. Delisa stopped working full time to care for their daughter. She was working part-time when the marriage was dissolved and Duane was an equity partner at Lewis Rice.

The trial court's judgment of dissolution awarded Delisa maintenance of $1,500 a month to begin December 1, 2008, and ordered Duane to pay Delisa's attorney $50,000 for attorney's fees. It noted that in making the maintenance award, it considered the factors of her employability, her reasonable needs, the income produced by the property awarded her and her previous standard of living. The trial court also considered her marital misconduct in engaging in an extramarital affair that contributed to the breakdown of the marriage.

On November 19, 2008, Delisa filed a motion for maintenance and support pending post trial motions and appeal. In her motion, she stated her intention to file a motion to amend the judgment and possibly an appeal. Delisa argued that she currently had only part-time employment and no liquid assets and sought the court's order granting her maintenance and child support and past amount of support from the Pendente Lite order (“PDL”) without jeopardizing her right to appeal.

On December 1, 2008, the trial court ordered that the maintenance and child support pending appeal “shall be the same as ordered in the judgment herein” except that maintenance was to increase by $500 per month until Delisa received or was tendered liquid marital assets that had been awarded to her, and these awards would not jeopardize her appeal. On December 5, 2008, Delisa filed a motion to amend the judgment or in the alternative for a new trial. On December 12, 2008, Duane filed a motion to amend the judgment. On January 26, 2009, the trial court amended the judgment of dissolution to allow Duane access to all family photographs in Delisa's possession, but in all other respects, the trial court denied the motions.

On April 8, 2009, Delisa filed a motion asking the trial court to order Duane to pay the $50,000 for attorney's fees awarded in the November 12, 2008 decree of dissolution and $10,000 for appellate attorney's fees. Duane filed a motion to dismiss Delisa's motion for any additional attorney's fees. On April 27, 2009, the trial court sustained Delisa's motion and awarded her $10,000 for attorney's fees and costs pending appeal.

This appeal and cross appeal followed.

Standard of Review

The standard of review on appeal from a decree of dissolution of marriage is guided by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Fisk v. Fisk, 81 S.W.3d 1, 1 (Mo.App. E.D.2001). Accordingly, this court will affirm the judgment of the trial court if it is supported by substantial evidence, is not against the weight of the evidence and does not erroneously declare or apply the law. Id. Moreover, all evidence and permissible inferences therefrom are considered in the light most favorable to the trial court's decision, and all contrary evidence and inferences are disregarded. Id. (internal citations omitted).

The trial court has broad discretion in dividing marital property and awarding child support, maintenance, and attorney's fees. Hatchette v. Hatchette, 57 S.W.3d 884, 888, 890-91, 893 (Mo.App. W.D.2001). Likewise, the trial court has broad discretion in identifying property as marital or separate. In re Marriage of Looney, 286 S.W.3d 832, 837 (Mo.App. S.D.2009). “The trial court abuses its discretion only when its ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock one's sense of justice and indicate a lack of careful consideration.” Manning v. Manning, 292 S.W.3d 459, 462 (Mo.App. E.D.2009) (quotation omitted).

Maintenance

We will discuss the points grouped together by topic and not necessarily in the order raised by each of the parties. In her first point relied on, Delisa claims that the trial court erred and abused its discretion in limiting her maintenance award to $1,500 per month because the award reflects a misapplication of Section 452.335.¹ She further argues that the findings upon which the trial court based the limited award are not supported by substantial evidence and are against the weight of the evidence. Specifically, Delisa argues four points: 1) that the marriage was one of long duration; 2) that she would be unable to maintain a standard of living near her previous one; 3) that the trial court's imputation of income to her was contrary to the parties' wishes that she curtail her career to raise their child and that the imputation of income was not supported by and was against the weight of the evidence regarding employment available to her; and 4) that Duane's income was sufficient to support a maintenance award that would have enabled her to meet her reasonable needs.

In her second point relied on, Delisa claims that the trial court erred to the extent that it limited maintenance to $1,500 per month due to her supposed marital misconduct because the court's finding that the conduct contributed to the breakdown of the marriage was not supported by substantial evidence since Duane did not suspect that Delisa was cheating on him before July 2006, and he did not testify that her alleged extramarital affair was the cause of the marriage's breakdown. Thus, she argues that the trial court's limitation was punitive rather than remedial.

In his response to Delisa's first point, Duane raises two new points that would more properly belong in his cross appeal, however, since they involve maintenance issues, we will address them here. First, he claims that the trial court erred in awarding any maintenance to Delisa because she has income available to her from employment and marital property awarded that is sufficient to meet her reasonable needs. Second, Duane claims that the trial court's award of $500 per month post judgment maintenance should be reversed because uncontroverted evidence established that Delisa had immediate access to income producing marital property upon entry of the judgment as contemplated by the trial court.

Maintenance award of $1,500 per month

We begin by considering Delisa's first point that the trial court abused its discretion by limiting her monthly maintenance award to $1,500. Section 452.335 provides that in order to award maintenance to a spouse, the trial court must find that the spouse seeking maintenance:

(1) Lacks sufficient property, including marital property apportioned to h [er], to provide for h[er] reasonable needs; and

(2) Is unable to support h[er]self 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.

Delisa argues that the court misapplied the statute when it failed to consider the relevant factors of the Colemans' marriage. In particular, she contends that the trial court failed to recognize the long duration of the marriage and her standard of living during the marriage, and the opportunity Duane had to advance his career while she curtailed hers to be a “child-rearing and home-making spouse.”

Delisa contends that her monthly needs exceed her monthly income after the maintenance award and that she is unable to maintain a standard of living close to that which she enjoyed during the marriage. She alleges that the award does not reflect a balance of her reasonable monthly needs with Duane's ability to provide support. She claims, therefore, that the award is arbitrary and unreasonable.

Even if the trial court accepted Delisa's estimated expenses and found that the amount was reasonable, the court is not required to award maintenance to cover all of her needs even if her husband has the resources to provide the additional support. Llana v. Llana, 121 S.W.3d 286, 291 (Mo.App. W.D.2003). It is not necessarily an abuse of discretion for the trial court to award maintenance insufficient to cover all of the needs of the spouse seeking support. Id.

In its findings concerning Delisa's maintenance award, the trial court made the following factual findings: that Delisa was capable of working full time; that the parties stipulated to the expert report of Timothy Kaver regarding Delisa's employability and probable annual income of $59,000; that Delisa could obtain additional income from some of the marital property awarded to her; and that Delisa...