Cross v. Cross, 56377
| Decision Date | 06 February 1990 |
| Docket Number | No. 56377,56377 |
| Citation | 790 S.W.2d 928 |
| Parties | David W. CROSS, Plaintiff-Respondent, v. Marilyn J. CROSS, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Susan K. Roach, Roussin and Roach, Chesterfield, for defendant-appellant.
Greg S. Kessler, Daniel P. Card, II, St. Louis, for plaintiff-respondent.
Wife appeals from a trial court ruling on her motion for temporary allowances. The court ordered husband to pay a total of $350 per week for child support, but denied wife's requests for maintenance and attorney fees. We affirm in part and reverse in part.
Husband filed a petition for dissolution of the parties' marriage in March of 1988. He alleged the parties married on September 28, 1969, separated February 17, 1988, and that two children were born of the marriage--a girl born March 16, 1980 and a boy born June 3, 1981. He alleged the children were in wife's custody and resided with her at the marital home in Chesterfield, Missouri. Husband prayed for joint custody of the children with wife having primary physical custody and husband paying reasonable child support. Wife answered asking for custody of the children, child support, maintenance and attorney fees.
In January of 1989 wife filed her original motion for allowances alleging in part:
6. That petitioner has agreed with respondent to pay the sum of $4,000 per month to respondent as temporary support of respondent and the minor children and has made said monthly payments each month for the past year.
7. That petitioner has threatened to cease making monthly support payments to respondent, said payments used by respondent to make the mortgage payments on the marital home, tax and insurance payments on the marital home, and to make the lease payments on petitioner's automobile, and for the everyday living expenses of respondent and the minor children.
On February 14, 1989, wife filed an amended motion in which she alleged, "Petitioner has ceased to provide adequate support for respondent and the minor children, and respondent requires the sum of $1,550.00 per month child support and $5,968.00 per month maintenance."
Husband filed his financial statements in June of 1988 and wife filed her's in February of 1989. The hearing on wife's motion was held in February of 1989. Both parties valued the marital home at approximately $475,000 encumbered by a $230,000 mortgage. Their assets (marital and nonmarital) included a 1984 Mercedes, a 1981 Volvo and, excluding the marital home, exceeded $300,000 in value. 1 Their debts, excluding the home mortgage, were in excess of $100,000.
According to husband's income and expense statement his monthly take home pay, excluding an optional $550 deduction, was $6,571 ($3,033 bi-weekly). At the hearing he testified he took home $2,700 bi-weekly ($5,850 monthly), excluding the optional deduction, and that he had interest income of about $500 per month from nearly $80,000 remaining of their assets of which he had taken exclusive control. Wife's income and expense statement reveals that she was unemployed. Her financial statements and testimony established she was receiving interest income of over $800 per month from bank accounts and bonds exceeding $100,000 in value.
Husband listed expenses totalling $7,075 per month. Included in this total was $1,150 rent for his apartment and a $4,000 "allowance" for wife. According to husband's statement wife was to make payments totalling $2,740 from the "allowance." These payments included $1,608 for the marital home mortgage, $177 for house and automobile insurance, $500 for the loan on the Mercedes (which was in his possession), $166 for real estate taxes and $290 for other loans.
Wife listed expenses, including those for the children, totalling $7,518 per month. She included $1,927 for the marital home mortgage, $501 for the loan on the Mercedes, $164 for property taxes, $500 for vacations, $240 for a housekeeper and $150 for tennis lessons. At the hearing, wife testified the mortgage payment on the marital home would rise from $1,608 to $1,927 in April of 1989 and that husband had told her the tennis lessons were to be a gift from him to her and the children.
In reviewing the court's ruling on wife's motion for temporary allowances we keep the following in mind. The purpose of temporary allowances is to maintain the status quo pending final judgment. Tzinberg v. Tzinberg, 631 S.W.2d 681, 683 (Mo.App.1982). A reviewing court is extremely cautious about altering such allowances because they are temporary and their effects do not extend beyond the final hearing of the case. Glick v. Glick, 336 S.W.2d 528, 531 (Mo.App.1960). Judgments on motions for temporary allowances must stand upon their own merits and are in no way dependent upon the merits of the issues in the underlying dissolution case. Dardick v. Dardick, 661 S.W.2d 538, 540 (Mo.App.1983).
A motion for an order for temporary maintenance and child support is authorized by § 452.315. An order for maintenance is to be made in conformity with § 452.335 which prescribes the findings that are a prerequisite to an order of maintenance and the factors to be considered in fixing the amount and terms of that maintenance. An order for support is to be made in conformity with § 452.340 which prescribes the factors to be considered in determining "an amount reasonable or necessary" for the support of a child. ... The paramount issue is the determination of the amount necessary to meet the "reasonable needs" for that maintenance and support. By statute both in regard to maintenance, § 452.335 Subsection 2(3) [now § 452.335.2(4), RSMo Supp.1989], and in regard to support, § 452.340[.1](4) [now § 452.335.1(3), RSMo Supp.1989], the court in fixing the amount is directed to consider the standard of living established during the marriage.... This factor is of particular importance where the marriage has been of a lengthy duration, ... [but] the amount is to be tempered by the [spouse]'s ability to pay.... In determining [that] ability, both present and past earnings may be considered.
In re Marriage of Deatherage, 595 S.W.2d 36, 39-40 (Mo.App.1980). (Citations omitted.) The standard of living during the marriage does not automatically establish "reasonable needs." Brueggemann v. Brueggemann, 551 S.W.2d 853, 857 (Mo.App.1977). Further, voluntary payments made to support a spouse and children may be considered in determining the reasonableness of awards of temporary allowances. Mackey v. Mackey And Associates, Inc., 677 S.W.2d 349, 351 (Mo.App.1984), Knauss v. Knauss, 425 S.W.2d 713, 717 (Mo.App.1968).
The scope of ... review of court tried cases generally is limited by Murphy v. Carron, 536 S.W.2d 30 (Mo....
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