Fox v. Fox, 63053

• Decision Date: 07 December 1993
• Docket Number: No. 63053,63053
• Citation: 866 S.W.2d 501
• Parties: Tamera Lynn Walker FOX, Petitioner-Appellant, v. Dennis William FOX, Respondent-Respondent. . Division One
• Court: Missouri Court of Appeals

Page 501

866 S.W.2d 501

Tamera Lynn Walker FOX, Petitioner-Appellant, v. Dennis William FOX, Respondent-Respondent.

No. 63053.

Missouri Court of Appeals,

Eastern District.

Division One.

Dec. 7, 1993.

Armstrong, Teasdale, Schlafly & Davis, Justin C. Cordonnier and Thomas B. Weaver, St. Louis, for petitioner-appellant.

Chused, Bini, Kohn, Feldmann & Steib, P.C., Chas. H. Steib, St. Louis, for respondent-respondent.

CRANDALL, Presiding Judge.

Wife, Tamera Lynn Walker Fox, appeals from the pendente lite (PDL) order of the trial court in her favor in the action for dissolution of her marriage to husband, Dennis William Fox. We affirm.

Husband and wife were married in October 1982 and separated on July 20, 1992. Wife filed her petition for dissolution of marriage on September 2, 1992. One daughter was born of the marriage. At the time of the PDL hearing, daughter was almost seven years old.

In her PDL motion, filed on September 4, 1992, wife sought temporary maintenance child support, medical insurance coverage for her and daughter, attorney's fees, and costs. Attached to wife's motion was her affidavit in which she asserted that she was without sufficient means to support herself. She alleged that husband earned "in excess of $200,000.00 per year" and had "substantial income-producing assets."

At the time of the hearing on her PDL motion, which was held on October 7, 1992, wife testified that she had not been employed outside the home since daughter's birth and had no income-producing assets of her own. In addition to daughter, she had custody of a thirteen year old son from a previous marriage. She was not living in the marital home at the time of the hearing, but intended to rent a furnished home in close proximity to the marital home for $1,850.00 per month. Shortly after the separation, wife spent time in California with another man, who later visited her in St. Louis. She paid for some of the expenses associated with these visits with charge accounts held jointly with husband. Prior to the PDL hearing, she had sent daughter to Florida to stay with grandparents. At the hearing, she expressed her wish that husband pay daughter's return airfare to St. Louis. She stated that her average monthly expenses totalled $10,303.82.

Husband testified that he was a self-employed attorney. His income and expense statement reflected that for 1991 his gross income from the practice of law averaged approximately $20,000.00 per month; and after the standard deductions and expenses of operating his office, his monthly net income was about $13,356.00. He stated that his total monthly expenses amounted to $16,461.00. At the time of the PDL hearing, he was residing in the marital home and wished to remain there. Relying on financial statements husband submitted to a bank, wife attempted to show that husband's projected income for 1992 was in excess of $35,000.00 per month.

During the marriage, husband's and wife's monthly expenses were between $13,000.00 to $14,000.00. Husband testified that one of the problems in the marriage was wife's excessive spending, which prevented them from saving money. Husband said that he had given wife about $7,000.00 on July 20, 1992, when they separated; and at the PDL hearing wife acknowledged that she had little of that money left. According to husband's statement of property, the marital home was valued at $355,700.00, with an outstanding mortgage of $312,000.00. Husband and wife jointly owned securities valued at $15,000.00. Husband's retirement account was approximately $90,000.00 and wife's was about $5,000.00.

The trial court ordered husband to pay temporary maintenance of $3,000.00 per month, child support for daughter in the amount of $1,000.00 per month, and wife's attorney's fees in the amount of $20,000.00. The court also ordered husband to pay $330.00 in airfare to return daughter to St. Louis, to pay the security deposit of $1,850.00 for the house which wife intended to rent, and to pay daughter's tuition at the private school which she attended.

We will uphold the trial court's order unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The court's discretion in awarding temporary maintenance and attorney's fees pendente lite is broader than at the dissolution hearing. Camden v. Camden, 844 S.W.2d 75, 78 (Mo.App.E.D.1992). "A reviewing court is extremely cautious about altering judgments regarding such allowances because they are temporary and their effects do not extend beyond the final hearing of the case." Cross v. Cross, 790 S.W.2d 928, 929 (Mo.App.1990). The purpose of temporary allowances is to maintain the status quo pending final judgment. Id.

The spouse seeking maintenance must show that he or she lacks sufficient property to provide for his or her reasonable needs and is unable to support himself or herself through appropriate employment. In re Marriage of Zavadil, 806 S.W.2d 506, 512 (Mo.App.1991). Section 452.315, RSMo (1986) authorizes a court to issue orders on motions for temporary maintenance. In determining whether an award is warranted the court must consider the relevant factors enumerated in § 452.335, RSMo (Cum.Supp.1992), which include:

(1) The financial resources of the party seeking maintenance, ... and his ability to meet his needs independently ...;

(2) The 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 established during the marriage;

(5) The obligations and assets, including the marital property ... and the...