Donovan v. Donovan

• Decision Date: 23 May 2006
• Docket Number: No. WD 65515.,WD 65515.
• Parties: Vivian L. DONOVAN, Respondent, v. Doyle D. DONOVAN, Appellant.
• Court: Missouri Court of Appeals

191 S.W.3d 702

Vivian L. DONOVAN, Respondent, v. Doyle D. DONOVAN, Appellant.

No. WD 65515.

Missouri Court of Appeals, Western District.

May 23, 2006.

COPYRIGHT MATERIAL OMITTED

Michael Wesley Hanna, Raytown, for Appellant.

Carrie E. Martsching, Kansas City, for Respondent.

RONALD R. HOLLIGER, Judge.

Dolye Donovan ("Husband") appeals the trial court's judgment and decree of dissolution of his marriage to Vivian Donovan ("Wife"). Husband raises three points on appeal, two dealing with the award of maintenance and one with apportionment of marital debt. In his first point, Husband contends the trial court abused its discretion in awarding Wife $500 per month in maintenance because the award is not supported by substantial evidence, is against the weight of the evidence, and is an erroneous application of the law. Point two claims that the trial court erroneously declared or misapplied the law in ordering that Wife's maintenance begin one month prior to the date the court's decree of dissolution was entered. Finally, Point three claims the trial court's award of one half of a credit card debt to Husband is not supported by substantial evidence, is against the weight of the evidence, and constitutes an abuse of discretion.

We affirm.

Factual and Procedural Background

Husband and Wife were married on June 16, 1979. Two minor children were born of the marriage, Eric D. Donovan and Amy M. Donovan. Husband has been employed by the Kansas City, Missouri, Fire Department since 1977. Wife worked in a hotel up until January 1988 and remained out of the work force until January of 2000. During that time, Wife was a homemaker and home-schooled her son through sixth grade and her daughter through fourth grade. When the children entered the public school system, Wife reentered the work force taking a job as an office manager for a rock quarry where she worked from January of 2000 to April of 2000. In April of 2000, Wife took a new job at the Jackson County Courthouse working in the garnishments section. Wife left this job in January of 2004 because she was having trouble doing and concentrating on her work due to the turmoil her children were going through, the condition of her home, and back pain from injuries she sustained in a car accident in 1982.

On November 19, 2003, Wife filed a petition for dissolution of marriage against Husband. Husband filed an answer and counter petition and Wife filed a reply to Husband's counter petition. After hearing, the trial court entered its judgment and decree of dissolution of marriage on April 20, 2005. The trial court divided the marital property and marital debt and awarded Wife $721 per month in child support and $500 per month in maintenance.

Standard of Review

The trial court's order will be affirmed unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Comninellis v. Comninellis, 147 S.W.3d 102, 105-06 (Mo.App. W.D.2004). This court will review 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. at 106.

Discussion

I. Maintenance

In a dissolution proceeding, a court may award maintenance to a spouse if it finds that the spouse: (1) lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs; and (2) is unable to support herself through appropriate employment. Section 452.335.1. The spouse seeking maintenance has the burden of establishing these threshold requirements. Comninellis, 147 S.W.3d at 106. If these threshold requirements are met, the trial court shall award maintenance in an amount and for a period of time as the court deems just after considering the following relevant factors: (1) the financial resources of the party seeking maintenance; (2) time necessary to acquire sufficient education or training to find appropriate employment; (3) the comparative earning capacity of each spouse; (4) the standard of living during the marriage; (5) obligations and assets of each party; (6) duration of the marriage; (7) age and physical and emotional condition of the spouse seeking maintenance; (8) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; (9) conduct of the parties during the marriage; and (10) any other relevant factors. Section 452.335.2.

The trial court made no specific findings and none were requested regarding its award of maintenance other than that Wife "lacks sufficient property, including martial property apportioned to her herein, to provide for her reasonable needs and that [Wife] is unable to support herself through appropriate employment." In the absence of findings, we review to see whether, resolving all inferences in favor of the trial court's ruling, there was substantial evidence to support the trial court's decision. Taylor v. Taylor, 12 S.W.3d 340, 346 (Mo.App. W.D.2000). The trial court's award of maintenance is reviewed only for an abuse of discretion. Comninellis, 147 S.W.3d at 106.

Husband concedes that Wife's reasonable needs exceed the investment income derived from the marital property apportioned to her. However, Husband argues that there is no substantial and competent evidence that Wife is unable to support herself through appropriate employment. Husband relies on In re Marriage of Liljedahl, 942 S.W.2d 919 (Mo.App. S.D. 1997), in arguing that Wife did not present sufficient evidence that she is unable to support herself through appropriate employment due to her back pain. In Liljedahl, the Southern District found that the trial court's finding that wife was unable to support herself through appropriate employment due to her present mental condition was not supported by substantial evidence and reversed the trial court's judgment awarding wife maintenance. 942 S.W.2d at 920-21. The Southern District based its holding on the fact that the wife admitted she quit going to work based on her husband's advice and wife presented no medical evidence, other than her conclusory testimony, of symptoms that limited or precluded her from engaging in employment. Id. at 925.

Unlike Liljedahl, Wife here presented substantial evidence that she is unable to support herself through appropriate employment due to her medical condition. At trial, Wife testified that she believed that she could hold a part-time job but not a full-time job. Subsequent to filing a petition for dissolution of marriage, Wife was employed full-time at the Jackson County Courthouse. Wife testified that she left that job in January of 2004 because she was having trouble concentrating on her work and doing it correctly because of the turmoil her children were experiencing and her unfinished home. She further testified that she was having trouble sitting at the computer all day long because of previous back surgery. Wife was in a car accident in 1982 that ruptured two discs in her lower back and required two surgeries. Although the court had ordered a special chair for her to sit on, she was still having trouble with her back and would have to go in the back office to lie down on the floor before continuing work. Wife also testified that while she was working she was taking pain medication four times a day, but only had to take pain medication once a day when she was working on her house because she was able to rest her back and then get up when she felt better.

Wife also admitted into evidence medical records from her doctors, Dr. Maeda and Dr. Ball, chronicling Wife's two back surgeries, one in March of 1996 and the other in August of 2002, and the regular prescription of pain medication. Husband testified at trial that his Wife frequently complained that she was hurting when she came home from her job at the courthouse and that he would frequently go and get her medication at the pharmacy for her when she was in pain. In addition to the evidence presented at trial regarding Wife's medical condition, Wife testified that she was out of the work force from January of 1988 to January of 2000 when she was raising and home-schooling her children. It is well established that a wife's withdrawal from the job market to be a homemaker is a sound basis for awarding maintenance. Comninellis, 147 S.W.3d at 110. It is clear from the record that Wife presented substantial evidence that she is unable to support herself through appropriate employment. The trial court did not abuse its discretion in awarding Wife maintenance.

In a subpart of point one Husband also argues that the trial court's imputation of $1,000 in income to Wife on its Form 14 is not supported by substantial evidence, is against the weight of the evidence, and is an erroneous application of the law. Husband is incorrect in his assertion that the trial court erred in its application of the law because in making a maintenance determination, the trial court may impute income to a spouse according to what she could earn by use of her best efforts to gain employment suitable to her capabilities. McCallum v. McCallum, 184 S.W.3d 169, 172 (Mo.App. E.D.2006). This court may look at the trial court's Form 14 child support calculations to determine the reasonableness of the trial court's findings with respect to maintenance. In re Marriage of Neu, 167 S.W.3d...