Dubrovenskiy v. Vakula, ED 106756

• Decision Date: 12 March 2019
• Docket Number: No. ED 106756,ED 106756
• Citation: 574 S.W.3d 287
• Parties: Dmitriy DUBROVENSKIY, Petitioner/Appellant, v. Yelena VAKULA, Respondent/Respondent.
• Court: Missouri Court of Appeals

574 S.W.3d 287

Dmitriy DUBROVENSKIY, Petitioner/Appellant,

v.Yelena VAKULA, Respondent/Respondent.

No. ED 106756

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: March 12, 2019

Susan M. Hais, Dzenana Delic, 222 S. Central Avenue, Suite 600, Clayton, MO 63105, For Petitioner/Appellant.

Michael L. Schechter, Ajla Alunovic, 8000 Maryland Avenue, Suite 950, Clayton, MO 63105, For Respondent/Respondent.

SHERRI B. SULLIVAN, P.J.

Introduction

Dimitriy Dubrovenskiy (Husband) appeals from the trial court’s Amended Judgment Pendente Lite (JPL) ordering him to pay temporary maintenance to Yelena Vakula (Wife). The JPL also orders a temporary custody arrangement for their minor child (Child). We affirm.

Facts and Background

Husband and Wife married on August 14, 2013, and have one child together, who was approximately three years old at the time of the JPL hearing. The parties separated on June 10, 2017. At the time of their separation, Wife left the marital home and moved in with her parents. Husband continued to occupy the marital home.

A Petition for Dissolution of Marriage was filed by Husband on June 23, 2017. Husband also filed a Motion for Child Custody, and Other Orders, Pendente Lite on that same day. Wife filed an answer and counter-petition to Husband’s motions, seeking temporary custody of Child, temporary maintenance, temporary child support, and attorney’s fees from Husband.

A hearing was held on Husband’s and Wife’s respective motions. Wife testified to several incidents of domestic violence by Husband, including his kicking, choking, and head-butting her. She also expressed concern for Child’s welfare while with Husband, testifying she had observed Child return from Husband’s care with bruises, fever, nausea, and diaper rash. Wife also testified about her financial and living situations since leaving Husband. She stated she had moved back in with her parents because she could not afford other accommodations. She also testified she was not working at the time of the hearing, but was seeking employment.

Husband testified about his living and financial situations as well. He testified he continued to live in the marital home where he pays rent and utilities. He testified Wife had restricted his contact with Child since their separation. He also expressed concern over Child’s well-being, noting Child was, in his view, not sufficiently progressing with his verbal skills. Husband suggested he believed this was due to shortcomings in Wife’s parenting. Both parties submitted proposed parenting schedules.

The court-appointed guardian ad litem (GAL) testified on the matter of child custody at the hearing. He noted the allegations of child abuse by Husband were unsubstantiated by investigators, and that Husband appeared diligent in his care and concern for Child. He also presented the Court with a recommendation for a temporary custody schedule, which included increased custody time for Husband.

The trial court entered a Judgment Pendente Lite. Husband filed a Motion to Reconsider the trial court’s first Judgment Pendente Lite. The trial court denied Husband’s motion, and entered the JPL from which Husband now appeals.

The JPL contains the trial court’s findings of fact and conclusions of law. The trial court found Wife’s testimony of Husband’s domestic violence toward her credible, but did not find sufficient evidence of his abuse of Child. The trial court found Wife’s restriction of Husband’s contact with Child was done in good faith, out of concern for Husband’s history of domestic violence. The trial court chose to adopt the schedule proposed by the GAL; the trial court noted it expected compliance with the custody schedule from Wife.

The trial court also made findings related to the temporary maintenance requested by Wife. Although Wife was unemployed at the time of the hearing, based on her experience and past employment the trial court imputed to her a gross monthly income of $2,063. Husband’s gross monthly income was found to be $6,438. After evaluating the evidence, including the standard of living during the marriage, the trial court found Wife’s reasonable monthly expenses to be $2,593. After subtracting taxes and expenses from her imputed income, this left her with a deficit of $972.51.

Husband was estimated to have monthly expenses of $2,285, similar to Wife’s. The trial court also found Husband had a higher earning capacity than Wife. The trial court again noted it found Wife’s allegations of domestic violence against Husband credible. Finally, the trial court stated that although the marriage was brief, and it was doubtful an order for maintenance would accompany a final judgment, there was no expectation Wife would become self-supporting during the pendency of the case. After having considered all relevant statutory factors, the trial court awarded Wife temporary maintenance of $900 per month. The trial court also awarded Wife retroactive maintenance to the date of filing, that being four months prior, and awarded her $3,600. This appeal follows.

Points Relied On¹

Husband makes two points on appeal. Point I asserts the trial court erred in awarding temporary maintenance to Wife because it improperly included living expenses not currently being paid by Wife due to Wife’s relocating to her parents' house, where she was not paying rent at the time of the hearing. Husband asserts that because Wife did not testify to having a specific intent to move out of her parents' house, any expenses for rent and utilities considered by the trial court were "speculative," and the trial court erred by considering them. Point II asserts the trial court erred in finding Husband committed acts of domestic violence against Wife because it was not supported by sufficient evidence, and that adopting the GAL’s proposed custody plan was against the weight of the evidence.

Point I

Standard of Review

Generally, appellate review of a court-tried case is limited to a determination of whether substantial evidence supports the trial court’s judgment, whether it is against the weight of evidence, or whether it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The trial court has considerable discretion in weighing the statutory factors when deciding whether to award maintenance. Section 452.335² ; Childers v. Childers, 26 S.W.3d 851, 854 (Mo. App. W.D. 2000). The necessity of this broad discretion stems from the trial court’s superior vantage to assess the credibility of witnesses, as well as the merits of each of the parties' claimed expenses. Schroeder v. Schroeder, 924 S.W.2d 22, 26 (Mo. App. E.D. 1996). This discretion broadens further still when awarding temporary maintenance, as its effects are temporary and do not extend beyond the final hearing of the case. Camden v. Camden, 844 S.W.2d 75, 78 (Mo. App. E.D. 1992) (citations omitted).

Discussion

Section 452.315.1 authorizes either party to a marriage dissolution to move for temporary maintenance. This same statute directs the trial court to make a determination of whether and how much temporary maintenance is warranted by evaluating the factors set forth in Section 452.335, the statute governing maintenance orders upon final judgment of the underlying dissolution. "The purpose of temporary allowances is to maintain the status quo pending final judgment." Tisone v. Tisone, 881 S.W.2d 647, 648 (Mo. App. E.D. 1994).

In order to be entitled to temporary maintenance, the moving party must meet a threshold showing that she (1) lacks sufficient property, including marital property apportioned by the dissolution judgment, to provide for her reasonable needs, and (2) is unable to support herself through appropriate employment, or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home. Section 452.335.

The JPL granting Wife temporary maintenance was accompanied by the trial court’s findings of fact and conclusions of law. The trial court analyzed the relevant factors under Section 452.335. The trial court calculated Husband’s income, the income it was to impute to Wife based on her skills and employment history, and Wife’s and Husband’s respective financial needs. In calculating their needs, the trial court referenced the standard of living during the marriage; specifically, it referenced the cost of the marital home occupied by Husband and Wife before the dissolution, using that cost as a basis to find the parties' current reasonable needs.

The trial court found Wife did not currently possess sufficient property to meet her own reasonable needs. The trial court also found there was no likelihood Wife would become self-supporting during the pendency of the dissolution proceedings. The trial court considered the short duration of the marriage, deciding while it was unlikely maintenance would accompany a final judgment, the short duration did not foreclose the possibility of temporary maintenance. The trial court considered Husband’s higher income, and found he would be able to afford to pay Wife maintenance for the duration of the proceedings. Finally, the trial court considered the parties' conduct during the marriage, finding Husband had committed domestic violence against Wife, which weighed in favor of a maintenance award.

The crux of Husband’s argument on appeal is the trial court erred by considering the rent and utility costs of the marital home which Husband occupied at the time of the hearing in determining Wife’s reasonable needs. In Husband’s view, because Wife moved in with her parents and currently pays them no rent, Wife failed to establish her reasonable needs include any rent or utilities whatsoever.

We do not find the trial court abused its discretion by calculating Wife’s reasonable needs as it did. At the outset, we note Section 452.335 directs the trial court to order maintenance where appropriate to meet the moving...