Comninellis v. Comninellis

• Decision Date: 26 October 2004
• Docket Number: No. WD 63440.,No. WD 63495.,WD 63440.,WD 63495.
• Citation: 147 S.W.3d 102
• Parties: Pamela S. COMNINELLIS, Appellant-Respondent, v. George COMNINELLIS; Respondent-Appellant Olympic Industries, GNC Holdings, and Impex International, Plaintiff.
• Court: Missouri Court of Appeals

147 S.W.3d 102

Pamela S. COMNINELLIS, Appellant-Respondent, v. George COMNINELLIS; Respondent-Appellant Olympic Industries, GNC Holdings, and Impex International, Plaintiff.

No. WD 63440.

No. WD 63495.

Missouri Court of Appeals, Western District.

October 26, 2004.

John G. Dorsey, Claycomo, MO, for Plaintiff.

Thomas E. Hankins, Gladstone, MO, for Appellant-Respondent.

James D. Boggs, Kansas City, MO, for Respondent-Appellant.

Before THOMAS H. NEWTON, P.J., HAROLD L. LOWENSTEIN and RONALD R. HOLLIGER, JJ.

THOMAS H. NEWTON, Presiding Judge.

This is the second appeal in a marital dissolution action. The only issues on this appeal involve the trial court's decision to award statutory periodic maintenance and to award it from the date of the mandate issued following the first appeal. We conclude that the trial court did not abuse its discretion in awarding maintenance in this case. We further conclude, however, that the trial court should have made the maintenance award effective as of the date of the original dissolution decree. Because we have the authority to give the judgment that the court ought to give, we make the award effective as of that date. In all other respects, the judgment of the trial court is affirmed.

I. Factual and Procedural Background

George and Pamela Comninellis appeal from the trial court's judgment awarding Ms. Comninellis statutory periodic maintenance in the amount of $2,000 per month. This is the second appeal from the trial court's dissolution of the parties' marriage. After the trial court dissolved the marriage, the parties appealed from the judgment as it pertained to the property distribution and the decision not to award maintenance. This court reversed several aspects of the judgment as it pertained to the property distribution and also remanded the case so that the trial court could reconsider the decision not to award maintenance to Ms. Comninellis. See Comninellis v. Comninellis, 99 S.W.3d 502, 514-15 (Mo.App. W.D.2003) (Comninellis I).

Following remand, the trial court held a hearing on the question of maintenance. Thereafter, the trial court issued a judgment resolving the property issues and it also reconsidered the question of maintenance. The trial court awarded statutory periodic maintenance of $2,000 per month to Ms. Comninellis and said:

The Court finds that Pamela is unable to support herself through appropriate employment and lacks sufficient property, including property awarded to her in this proceeding, to provide for her reasonable needs. The Court further finds that George is well able to provide for his own financial needs and to contribute to the financial support of Pamela. The court further finds that while Pamela, in order to survive financially, has had to deplete the assets awarded to her in the Judgment of Dissolution, George has been able to live a comfortable lifestyle and has been able to pay his expenses without having to deplete his assets. Further, George has done this while paying to support two homes (one in Missouri and one in Florida) and while paying his attorney fees and other obligations as they become due. Pamela, on the other hand, has only one residence and, though she has depleted her assets and borrowed money in order to provide for herself financially, she has been unable to pay any of her attorney fees.

George has been able to pay all of these obligations, as they come due, without having to sell his yacht (which he intends to do) and without having to sell his real estate. Pamela, on the other hand, has had to deplete the bank and investment accounts awarded to her, has had to borrow $25,000 from her Mother, and has been unable to pay anything towards her $25,000 attorney fee obligation.

The Court finds that it is fair and reasonable for George to pay Pamela $2,000.00 per month as and for periodic, statutory, maintenance. The Court further finds that this award of maintenance should be made retroactive, but that this Court only has authority to make the award retroactive to the date of the mandate from the Court of Appeals (April 2, 2003).

Both parties appeal. Ms. Comninellis raises two points on appeal. First, she contends that the trial court misinterpreted and misapplied the law and abused its discretion by making the maintenance award effective as of the date of this court's mandate instead of the date of the trial court's original judgment. And, second, she contends that the trial court abused its discretion in awarding only $2,000 per month in maintenance because the evidence shows that she lacks sufficient property to provide for her reasonable needs and is unable to support herself through appropriate employment.

Mr. Comninellis raises one point on appeal. He contends that the trial court abused its discretion in awarding maintenance and attorney's fees. Although Mr. Comninellis mentions attorneys fees in his point relied on, he does not address attorney's fees in the argument section of his brief or cite any relevant authority on that issue. To the extent that he disputes the attorney's fee award, he has abandoned that issue on appeal and we do not address it. See Coleman v. Gilyard, 969 S.W.2d 271, 273 (Mo.App. W.D.1998).

II. Standard of Review

"This court will affirm the trial court's order unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law." Ritter v. Ritter, 920 S.W.2d 151, 160 (Mo.App. W.D.1996). "This court reviews the evidence in the light most favorable to the dissolution decree, disregarding contrary evidence, and defers to the trial court even if the evidence could support a different conclusion." Id. This court reviews the trial court's maintenance award only for an abuse of discretion. Id.

III. Analysis

A. The Trial Court Did Not Abuse its Discretion in Awarding Maintenance

The trial court can award maintenance only if it finds that the spouse seeking maintenance: (1) lacks sufficient property, including marital property apportioned to her during the divorce, to meet her reasonable needs; and (2) is unable to support herself through appropriate employment or that she is the custodian of a child whose condition or circumstances make it appropriate that she not be required to seek employment outside of the home. § 452.335.1; Hill v. Hill, 53 S.W.3d 114, 115 (Mo. banc 2001). The spouse seeking maintenance has the burden of establishing these threshold requirements. Childers v. Childers, 26 S.W.3d 851, 854 (Mo.App. W.D.2000).

"To proceed under the statute, the court must first determine the reasonable needs of the spouse seeking maintenance ... and then determine whether the spouse is able to provide for these needs through use of property or appropriate employment." McIntosh v. McIntosh, 41 S.W.3d 60, 67-68 (Mo.App. W.D.2001) (internal citation omitted). "Once the court determines the reasonable needs of the spouse seeking maintenance, the court then determines the ability of the spouse to meet those needs through her earnings and investment income...." Id. at 68. "If there is a disparity between her reasonable needs and her income, the court should consider that disparity in deciding whether maintenance is required." Id.

1. Ms. Comninellis' Reasonable Needs

"Reasonable needs" is the standard for determining the expenses properly allowable to a spouse seeking maintenance. Nichols v. Nichols, 14 S.W.3d 630, 636 (Mo.App. E.D.2000). "Reasonable needs" does not automatically equate to the marital standard of living. Id. The marital standard of living is merely a factor to be considered. Id. "Reasonable needs" is a relative term. Brueggemann v. Brueggemann, 551 S.W.2d 853, 857 (Mo. App.1977). "In a marriage of lengthy duration where one spouse has foregone career development, the marital standard of living may serve as an important guide in computing the spouse's reasonable needs. In a very practical sense it is frequently the best evidence of what the parties have together determined their `reasonable needs' to be." Id.

"To prove claimed expenses, statements of income and expenses are routinely admitted and relied upon without further testimony or documentary support for each individual item." Childers, 26 S.W.3d at 855 (internal quotation marks and citation omitted).

Ms. Comninellis' most recent income and expense statement catalogued $6,632.33 in monthly expenses. Ms. Comninellis contends that these expenses exceed her income by over $5,000 per month and justify her request for a maintenance award to cover the shortfall. Mr. Comninellis, on the other hand, challenges the reasonableness of several claimed expenses. He states that her claimed expenses have increased from $5,094.25 since the first dissolution hearing.

Reviewing the evidence in the light most favorable to the dissolution decree and disregarding contrary evidence, we conclude that the trial court's determination is not against the weight of the evidence and that it is supported by substantial evidence. See Ritter, 920 S.W.2d at 160.

The trial court made no specific findings regarding any of Ms. Comninellis' expenses. "Such findings are not necessary in the absence of a motion for findings of fact under Rule 73.01, however." Taylor v. Taylor, 12 S.W.3d 340, 346 (Mo. App. W.D.2000). Where neither party requests specific findings, we presume that the trial court "resolved all factual conflicts in favor of the result reached." Id. at 346-47. In such a case, "[a]ll fact issues ... shall be considered as having been found in accordance with the result reached." Rule 73.01(c).¹

Here, the trial court could have found that many of Ms. Comninellis' claimed expenses were excessive. For example, Ms. Comninellis listed $2,600 in monthly expenses for credit cards, recreation and gifts. Of this amount, $2,050 constitutes credit card payments, $300 constitutes spending on recreation, and $250 constitutes spending on gifts. Because the marital standard of...