Finnical v. Finnical, WD

• Decision Date: 11 May 1999
• Docket Number: No. WD,WD
• Citation: 992 S.W.2d 337
• Parties: Timothy M. FINNICAL, Respondent, v. Marilyn D. FINNICAL, Appellant. 55810.
• Court: Missouri Court of Appeals

Page 337

992 S.W.2d 337

Timothy M. FINNICAL, Respondent, v. Marilyn D. FINNICAL, Appellant.

No. WD 55810.

Missouri Court of Appeals Western District.

May 11, 1999.

Gwendolyn Froeschner, Columbia, for Appellant.

Stephen Caruso, Kansas City, Tom Bark Kretsinger, Jr., Liberty, for Respondent.

SPINDEN, Presiding Judge.

Marilyn D. Finnical appeals the circuit court's judgment denying her an award of maintenance in this dissolution of marriage action. She contends that the circuit court abused its discretion in weighing the factors which the General Assembly has mandated that a circuit court consider in deciding whether to award maintenance, and she argues that the circuit court erred in its distribution of marital property and in not ordering Timothy Finnical to pay more of her attorney fees.

Marilyn Finnical contends that the circuit court abused its discretion by not ordering Timothy Finnical to pay her maintenance. She complains that, although the court specifically found that factors existed which inhibited her ability to work, it found that she could support herself through employment or income from assets. She argues that the evidence showed that she has no income-producing assets from which to support herself. She asserts that this, combined with the circuit court's findings that her mental health disorders may prevent her from earning income sufficient to support herself, should have resulted in the circuit court's awarding maintenance to her.

The circuit court has broad discretion in deciding whether to order maintenance. This means that the circuit court's decision will stand unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Wallace v. Wallace, 839 S.W.2d 354, 356 (Mo.App.1992). We review the circuit court's decision by viewing the evidence in the light most favorable to the decision. Id.

When a party requests maintenance, the circuit court must determine what the party's reasonable needs are. Hosack v. Hosack, 973 S.W.2d 863, 870 (Mo.App.1998). Section 452.335.1, RSMo 1994, requires the circuit court to evaluate whether the party has property sufficient to meet his or her reasonable needs, and, if not, whether that spouse can meet his or her needs through appropriate employment. Witt v. Witt, 930 S.W.2d 500, 503 (Mo.App.1996).

The circuit court did not make any findings of fact concerning Marilyn Finnical's reasonable needs. She presented uncontested evidence that her reasonable monthly living expenses were $2339. The circuit court made no findings as to whether Marilyn Finnical had sufficient property to meet her reasonable needs and found that she may be unable to support herself through appropriate employment. The circuit court said:

... [Marilyn Finnical], although educated (she received a B.A. in English in 1961 and has accumulated several hours towards a degree in Television/Film Industry), ... last worked full-time in 1962 as a flight attendant for Ozark Airlines[,] which employment lasted approximately six to eight months ... and had various jobs in the early 1960's.

... [Marilyn Finnical] has lived her lifestyle primarily as a homemaker. [Marilyn Finnical] met [Timothy Finnical] while [she] was a homemaker[,] and she has not worked outside the home throughout the entire duration of this marriage.

... [Marilyn Finnical] also suffers from a variety of mental health disorders that may prevent her from earning an income sufficient to provide for her reasonable needs. Her mental health disorders adversely affect her ability to support herself. Ill health or physical disability which adversely affect the ability to support [one's] self is consistently recognized as a relevant factor in awarding maintenance. In re the Marriage of: Reed, 762 S.W.2d at 85.

... [Marilyn Finnical] has been under the care of a psychiatrist prior to and throughout the period of her separation from [Timothy Finnical] and[,] based upon reasonable medical certainty[,] has been diagnosed as suffering from major depression and moderate severity from a panic disorder with agoraphobia.

... The evidence presented to the Court shows that [Marilyn Finnical] would not be suitable for certain types of employment.

... The Court does not feel that [Marilyn Finnical] has made a serious effort to obtain employment; instead relying on the $1,000.00 per month paid by [Timothy Finnical] without Court order until November of 1996. The testimony of [Timothy Finnical] was that [Marilyn Finnical] said, "I'm too aristocratic to work." The Court finds that [Marilyn Finnical] maintained herself with child support from her first husband and then on the $1,000.00 per month paid by [Timothy Finnical].

We find no evidence that Marilyn Finnical had sufficient property from which she could support herself. The circuit court awarded to her the marital house whose fair market value was $100,000, but was encumbered by a $50,000 mortgage, a 1985 Jeep Cherokee whose fair market value was $1200, a checking account containing $250, household goods and personal clothing worth approximately $2500, a painting valued at $7500, and $250 worth of health insurance reimbursement checks.

To assist in meeting their reasonable needs, a party has a duty to seek full-time employment after a divorce. Wallace, 839 S.W.2d at 357. The circuit court must, of course, consider the party's physical or mental conditions which affect his or her ability to earn money sufficient to meet his or her reasonable needs. In re Marriage of Liljedahl, 942 S.W.2d 919, 924-25 (Mo.App.1996).

The circuit court determined that Marilyn Finnical's mental health conditions "may prevent her from earning an income sufficient to provide for her reasonable needs," but it concluded that she would not know until she tried, and that she had not "made a serious effort." The circuit court's finding concerning Marilyn Finnical's mental condition was supported by substantial and competent evidence. We found no evidence which supports the circuit court's finding that she had not made a serious effort to find work at the time of the divorce.

The only evidence relating to Marilyn Finnical's attitude toward finding a job was testimony by Timothy Finnical and a psychiatrist presented by Timothy Finnical. Finnical testified that his wife had rebuffed his frequent demands throughout the marriage that she get a job. A psychiatrist testified that, although he agreed with the diagnosis of Marilyn Finnical's treating psychiatrist that Marilyn Finnical suffered major depression, she was "a bright educated person who can talk well and relate well" and that he "didn't see anything that would indicate that she couldn't be a receptionist or an aide or ... some kind of sales [clerk]."

The circuit court's focus on Marilyn Finnical's attitude about working during the marriage--manifested by its emphasizing Timothy Finnical's testimony that his wife had been "too aristocratic to work"--was misplaced. The issue was not Marilyn Finnical's attitude during the marriage, but her ability at the time of the proceedings to earn an income sufficient to meet her reasonable needs.

We remand this case to the circuit court for it to focus on Marilyn Finnical's present attitudes and to impute to her, in light of her abilities, a reasonable level of expected income, if any. The circuit court may impute income to a spouse based upon what he or she could earn using his or her best efforts to gain employment suitable to his or her capabilities. Liljedahl, 942 S.W.2d at 924. "Appropriate employment" is employment "appropriate to [a person's] skills and interests." Witt, 930 S.W.2d at 504. To the extent that this imputed income does not satisfy her reasonable needs, the circuit court shall consider the factors set forth in § 452.335.2, RSMo 1994, in ordering Timothy Finnical to pay her reasonable maintenance. ¹

Marilyn Finnical's second point is more of an extension of her first point than a presentation of a new issue. She complains that the circuit court's deciding that the evidence did not support "a finding that [she] relied upon the spouse for monetary support and was out of the marketplace at [the] request of [Timothy Finnical]" was contrary to evidence that she relied solely on Timothy Finnical for support. We agree that the circuit court misspoke in saying that the evidence did not support a finding that she had relied on Timothy Finnical for monetary support, but this mistake is of no consequence. This is because the essence of the circuit court's finding was that the Finnicals' case was unlike the situation which the court faced in Brock v. Brock, 936 S.W.2d 882 (Mo.App.1997). In Brock, the court said, "In a marriage where a spouse relies on the other spouse for monetary support, and is out of the marketplace [with the consent of the other spouse], thereby injuring the spouse's marketable skills, this type of reliance may warrant an award of maintenance." Id. at 885. Marilyn Finnical does not contest the circuit court's finding that she was not "out of the marketplace" with Timothy Finnical's consent. Having already concluded that the circuit court needs to reconsider the issue of maintenance and Marilyn Finnical's ability to earn an income, we need not concern ourselves further with the portion of the finding which Marilyn Finnical does contest.

In her third point, Marilyn Finnical contends that the circuit court erred in finding that neither party was guilty of marital misconduct which caused a breakup of their marriage. Her point says:

The trial court erred in its finding that there was no marital misconduct of either party that resulted in the dissolution of the marriage in that such a holding is against the weight of the evidence because the evidence clearly indicates that husband was physically and mentally abusive during the marriage, refused to share any financial information with wife during the marriage and on at...