Dardick v. Dardick
| Decision Date | 30 August 1983 |
| Docket Number | No. 44860,44860 |
| Citation | 661 S.W.2d 538 |
| Parties | Minna June DARDICK, Petitioner-Respondent, v. Leon M. DARDICK, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Jerome F. Raskas, David A. Smith, Raskas, Ruthmeyer, Pomerantz & Wynne, St. Louis, William D. Kimme, Isidore I. Lamke, Kimme, Lamke & O'Connor, Washington, for respondent-appellant.
Theodore S. Schechter, Schechter & Collignon, Clayton, William W. Eckelkamp, Eckelkamp, Eckelkamp & Wood, Washington, for petitioner-respondent.
Appellant (husband) appeals from three separate and successive post trial motions pendente lite which awarded respondent (wife) temporary maintenance, attorneys' fees and costs pending appeal of an underlying dissolution decree. These three separate appeals have been consolidated here.
On June 24, 1981, husband filed a notice of appeal to this court from a decree of dissolution entered on June 16, 1981. Husband's supersedeas bond was filed and approved which stayed execution of the decree pending appeal.
On July 27, 1981, wife filed a motion pendente lite (PDL) for temporary maintenance, attorneys' fees, and costs. The trial court granted wife's motion PDL for support, $3,000 per month, but denied her attorneys' fees and costs. Husband filed his notice of appeal from this first PDL order and a motion for supersedeas bond PDL. The trial court on September 18, 1981, approved husband's bond which stayed execution of wife's first motion PDL pending its appeal.
Wife filed her second motion PDL on October 20, 1981, again seeking temporary maintenance, attorneys' fees, and costs. The trial court granted wife's motion for $3,000 per month support, $8,000 for additional attorneys' fees and $500 costs. Husband filed a notice of appeal from this second PDL order and a motion for supersedeas bond PDL. On March 8, 1982, the trial court approved husband's supersedeas bond which stayed the execution of wife's second motion PDL pending its appeal.
Wife filed a third motion PDL on March 19, 1982, seeking temporary maintenance, attorneys' fees and costs pending appeal of the second PDL. The trial court granted wife's motion awarding her $3,000 per month maintenance and $500 attorneys' fees. Husband filed a notice of appeal from this third PDL order and a motion for supersedeas bond PDL. The trial court approved husband's appeal bond which stayed the execution of wife's third PDL pending its appeal.
In each of wife's three motions pendente lite, husband applied for a change of judge pursuant to Rule 51.05(a) which states that "[a] change of judge shall be ordered in any civil action based upon the filing of a written application therefor...." Husband's applications were all denied. Husband contends that a motion pendente lite in a dissolution decree is a "civil action" under the rule, and the trial court's denial of husband's applications for a change of judge amounts to reversible error. We disagree.
It is well established in Missouri that orders on motions to allow maintenance and suit costs pendente lite are judgments in independent proceedings. They stand upon their own merits and are in no way dependent upon the merits of the issues in the underlying dissolution suit. The order making an allowance upon a motion pendente lite is a final judgment disposing of the merits of that proceeding from which an appeal may be taken. Nilges v. Nilges, 610 S.W.2d 58, 62 (Mo.App.1980); State ex rel. Thomas v. Kelly, 631 S.W.2d 685, 689 (Mo.App.1982).
Husband asks this court, without any supporting authority, to characterize an independent proceeding which leads to a final judgment for the purposes of appeal as necessarily constituting a "civil action" under Rule 51.05(a). This we are not inclined to do. Although a motion pendente lite is a separate and distinct proceeding from the underlying divorce decree, it is incidental to and engrafted on the divorce decree. It is not a "civil action" as the term is meant under Rule 51.05(a).
What this court held in Dagley v. Dagley, 270 S.W.2d 553 (Mo.App.1954), under analogous facts is applicable and controlling here:
Dagley v. Dagley, 270 S.W.2d at 560. 1 The trial court did not err in denying husband's applications for change of judge.
Husband further contends that the trial court committed reversible error in refusing to recuse himself from determining wife's motions pendente lite. Husband argues that since he challenged on appeal the "fairness" of the underlying dissolution decree, the trial court should have recused himself immediately upon the timely filing of husband's application for change of judge in order to avoid even the appearance of impropriety. Husband cites no authority for this principle, and we find it unpersuasive here.
In addition, husband argues in his brief that the "arbitrary and unjustified [PDL] orders of excessive sums of money for maintenance, attorneys' fees and suit money not only presented the appearance of bias and prejudice but clearly establish a predisposition of this judge to penalize husband." Husband's conclusion here is unfounded. Testimony at the trial showed the 59 year old wife to have been unemployed since shortly after the marriage of the parties in 1955. She possessed no particular job-related skills and had been under the care of a psychiatrist since the parties' separation. The 53 year old husband was the president of a corporation with an annual taxable income of approximately $95,000 per year plus other fringe benefits. In her verified income and expense statement filed in the dissolution action and part of the record on appeal, wife itemized her need for $2,807.53 per month net of taxes in order to maintain her present standard of living. This evidence alone is competent and substantial evidence to support the trial court's award of $3,000 per month in temporary maintenance. Moreover, a trial court has broad discretion in determining whether to make an award of attorneys' fees and in what amount, and an appellate court will not overturn its decision except for abuse of discretion. Brown v. Brown, 609 S.W.2d 223, 228 (Mo.App.1980). Husband has not demonstrated an abuse of discretion, and we find none on review.
Husband's final argument on this point is that the trial court made various comments on November 17, 1981, the hearing on wife's second PDL motion, which together with the rulings in the case establish a predisposition of the trial court to penalize the husband. After reviewing the full transcript of the November 17th hearing, we conclude that husband's contention is unfounded. There is nothing in the transcript to suggest that the trial court judge was biased as to prejudice husband's rights being adjudicated. After the trial court sustained wife's second motion PDL, we note that husband was granted four separate extensions of time to file a Writ of Prohibition in this court. Moreover, the trial court sustained husband's motion to reconsider the second PDL order and reduced the attorneys' fees granted therein by $2,000. As we discussed earlier, wife's income and expense statement provided substantial evidence for the trial court to allow $3,000 per month temporary maintenance. Husband's argument here has no merit.
Husband's next point on appeal is that the trial court committed reversible error by refusing to receive evidence from husband before sustaining wife's three post-trial motions pendente lite. The record does not show that husband requested an evidentiary hearing for either the first or the third pendente lite motions. The record of the second PDL hearing shows that the husband did request an evidentiary hearing. Regardless, husband's apparent contention is that a post-trial pendente lite motion requires an evidentiary hearing in order to adduce evidence upon which the trial court may base its order. Failure to hold an evidentiary hearing, husband asserts, constitutes reversible error. As to the first PDL motion, filed shortly after the decree of dissolution was entered, we disagree.
Contrary to husband's contention, it is proper for a trial court in a pendente lite proceeding to...
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