Devries v. Devries, WD

• Decision Date: 26 February 1991
• Docket Number: No. WD,WD
• Citation: Devries v. Devries, 804 S.W.2d 825 (Mo. App. 1991)
• Parties: Martha Ann DEVRIES, Respondent, v. Darrell DEVRIES, Appellant. 43215.
• Court: Missouri Court of Appeals

Page 825

804 S.W.2d 825

Martha Ann DEVRIES, Respondent, v. Darrell DEVRIES, Appellant.

No. WD 43215.

Missouri Court of Appeals Western District.

Feb. 26, 1991.

John W. Dennis, Jr., Independence, for appellant.

R. Brent Elliott, Chillicothe, for respondent.

Before TURNAGE, J., Presiding, and LOWENSTEIN and ULRICH, JJ.

LOWENSTEIN, Judge.

This appeal concerns the temporary allowance of support, maintenance and attorney fees in a dissolution of marriage action. The husband also appeals the trial court's order giving retroactive effect to the awards for support and maintenance.

The appellant and his wife separated in September 1988, after thirteen years of marriage. The husband filed for dissolution in Livingston County in November 1988. A hearing was held on April 3, 1989. The trial court entered an order pendente lite, awarding the wife temporary maintenance of $500 per month and child support of $750 per month ($250 per child). The trial court denied the wife's request for attorney fees. On August 28, 1989, the husband then dismissed his petition for dissolution. Because the husband voluntarily dismissed his petition for dissolution and because the wife had filed no counterclaims, the temporary orders were dissolved.

The next day, August 29, 1989, the wife filed the present action in Carroll County where she and the three children lived. Ironically, the wife found it extremely difficult to achieve service of process on her husband. He no longer lived in Carroll County but had quit his job and moved to California to live with his father. In October, she unsuccessfully tried to serve him in California. The sheriff's return from the Lake County, California, stated the office was unable to serve the summons and petition "according to father does not live at this address, possibly in Sacramento or San Francisco ... was to be here in a week, on 9/29/89 the lights were on but no response. No forwarding available." In December 1989, the wife attempted to serve the appellant in Wright County, Missouri. The sheriff's return stated the defendant "refused to accept the summons," which was left on his residence door. The husband filed a motion to quash service. The wife eventually personally served her husband in Carroll County, Missouri on January 20, 1990. The husband filed for a change of judge and Judge Lewis who had heard the first hearing in Livingston County was back in the case.

After a hearing on February 28, 1990, at which the husband represented himself, the court entered an order pendente lite, awarding the wife $500 per month maintenance retroactive to the August 29th filing, $500 a month for each of the three children, also retroactive, as well as a $5000 temporary allowance for attorney fees. Additional facts will be provided in the discussion of the points relied on.

For his first point the husband contends the award of temporary maintenance was in error, even though in the same amount as the April order, because (1) at the time of the February 1990 hearing the wife was gainfully employed with an income sufficient to provide for her reasonable needs; (2) there was no substantial evidence that the husband was capable of paying maintenance to the wife; (3) evidence showed that the husband was unemployed from August 1989 until December 1989, making the order of retroactive maintenance an abuse of discretion; and (4) the current pendente lite award was the same amount as the pendente lite award from the dismissed dissolution proceeding even though at the time of the dismissed proceeding the wife had no income and the husband had a greater income.

An order making an allowance upon a motion pendente lite is a final judgment from which an appeal may be taken. Dardick v. Dardick, 661 S.W.2d 538, 540 (Mo.App.1983). On appeal the complaining party must show the trial court abused its discretion in making a temporary order. Stein v. Stein, 787 S.W.2d 787, 788 (Mo.App.1990); In re Marriage of Deatherage, 595 S.W.2d 36, 40 (Mo.App.1980). This court will affirm unless there is no substantial evidence to support the trial court's action unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

The trial court obviously found the wife's evidence credible. On appeal the husband admits he "did not present much evidence" in his pro se defense in February 1990. Almost all the hearing was taken up by the wife's case. After necessary job retraining she returned to the work force after primarily caring for the children and family home throughout the marriage. She testified her monthly income as a hospital nurse in a neighboring community was $1,757.60 in gross. The monthly expenses for her and her four children amounted to $4,525.80. She exhausted a $10,000 personal savings account and had to rely on her parents for financial aid.

Prior to suit for dissolution, the family maintained a high standard of living. They lived in a home valued at $175,000, maintained a separate lake home, boat, and a plane. Furthermore, the husband and wife had a $1,350,000 debt-free interest in several newspapers. The husband worked for one of the papers which was owned by his father. The husband and wife were, prior to separation in the process of buying the papers from his father. The husband earned a net monthly income of $3800. After the husband dismissed the first dissolution action, he moved to California to take another newspaper job at a monthly salary of $2400. It is unclear from the record whether this figure was net or gross. He voluntarily quit that job. From July 1989 through November 1989 he was unemployed and received unemployment compensation in California. In December 1989 he returned to Missouri to work for another of his father's newspapers, in a different part of the state at a gross salary of $2,000 per month. The husband provided no financial support since August 1989 except for a money order for $525 tendered in December 1989 which he claimed represented the total extent of his accrued child support obligation.

The record shows that the wife was hospitalized from depression from November 1988 through January 1989. During this time, the husband took his girlfriend on a Caribbean cruise. Furthermore, the girlfriend and her two children lived in the DeVries family home for a time. After the wife's release from the hospital, she and the children lived in her parents home. Furthermore, the husband spent a $80,000 to $90,000 sum, which represented a return of the husband and wife's down payment on the purchase of newspapers. This sum was returned by his father after the couple defaulted. He never told the wife about the return of the down payment. He admits that after the separation he "spent it ... you name it, I spent it on it." He stopped making payments on the family house in March 1989, and the deed of trust was later foreclosed. He gave his wife's sapphire necklace to a girlfriend. Furthermore, without telling the wife, he cashed in several joint tax refunds.

Under the scope of review, Murphy v. Carron, supra, no abuse occurred here in the temporary award of $500 a month maintenance. In re Marriage of Newman, 601 S.W.2d 632, 633 (Mo.App.1980). The husband appears to have voluntarily reduced his income, moved away, dismissed his petition, and made himself unavailable for process. He is in no position to...