Franke v. Franke

• Decision Date: 12 January 1988
• Docket Number: No. 52560,52560
• Citation: Franke v. Franke, 747 S.W.2d 202 (Mo. App. 1988)
• Parties: William E. FRANKE, Appellant, v. Cynthia J. FRANKE, Respondent.
• Court: Missouri Court of Appeals

Page 202

747 S.W.2d 202

William E. FRANKE, Appellant, v. Cynthia J. FRANKE, Respondent.

No. 52560.

Missouri Court of Appeals,

Eastern District,

Division Four.

Jan. 12, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Feb. 18, 1988.

Application to Transfer Denied April 19, 1988.

Theodore S. Schechter, Bruce E. Friedman, Clayton, for appellant.

John A. Turcotte, Janet E. Young, St. Louis, for respondent.

GRIMM, Judge.

Husband, William E. Franke, appeals an order pendente lite, entered in his dissolution of marriage action, concerning awards of temporary maintenance and attorneys' fees; and requiring the deposit of $4,000 as additional security for costs, from which guardian ad litem fees were paid.

On appeal, husband claims that the trial court abused its discretion: (1) in awarding $4500 per month maintenance to wife because there was insufficient evidence of the needs of the wife for that amount; (2) awarding $20,640 as partial payment of attorneys' fees and $11,662.50 as suit monies on account; and (3) requiring husband to deposit $4000 to secure the fees of the guardian ad litem and then directing the clerk to pay $2861.60 to the guardian ad litem. Finding no abuse of discretion, we affirm.

Husband filed his petition for dissolution of marriage on August 15, 1986. On August 19, 1986, wife filed a motion seeking temporary custody, child support, maintenance, attorneys' fees, suit money, injunction, restraining order, and costs pendente lite. During this marriage, two children, now ages 4 and 7, were born. Following two hearings on the motions, Allen Stewart was appointed guardian ad litem for the two children on September 9, 1986. On October 21, 1986, the guardian ad litem filed a motion for deposit of additional court costs to secure guardian ad litem fees and for partial distribution. On October 22, 1986, the hearing on wife's motion and on the guardian's ad litem motion concluded and orders were entered, from which husband now appeals.

On the issue of maintenance, husband's attorney at oral argument acknowledged that husband does not dispute his ability to pay the award. Rather, husband asserts that the award of $4,500 per month was excessive and not supported by substantial evidence showing wife needed that amount.

Several well established principles control our consideration of husband's complaint. First, the determination of the amount of maintenance is a matter resting in the sound discretion of the trial court, and we review the record only to determine whether that discretion was abused. Naeger v. Naeger, 542 S.W.2d 344, 347 (Mo.App.E.D.1976). Second, the burden is, of course, on an appellant to demonstrate an abuse of discretion. Id. at 347. Third, where there is a conflict in the evidence, the trial court has the prerogative to determine the credibility of the witnesses, accepting or rejecting all, part, or none of the testimony. Trunko v. Trunko, 642 S.W.2d 673 (Mo.App.E.D.1982). Thus, our scope of review is narrow.

Wife's first amended statement of income and expenses, received in evidence indicated expenses of $8,463.00; she has no income. Deleting from that amount those expenses attributable to the children, since the husband agreed to be responsible for their expenses, the expenses totaled $5,143.00.

Husband, on the other hand, presented evidence based on a review of the checks written by the wife for the first 8 1/2 months of 1986. John Shipley, husband's personal accountant, reviewed the wife's checks and prepared spread sheets. Because the expenses were for the family of four, two of whom were children, Mr. Shipley adjusted some of the expenses, reducing them by one-half, two thirds, or three-fourths. As a result of these computations, Shipley indicated that wife's expenses totaled $1,744.00 per month, excluding gifts. However, Shipley acknowledged that charge accounts paid by some other means than the household checking account were not included, nor were clothes obtained from one of the companies owned by the parties.

Here, the trial court had evidence from the wife that she needed $5,143.00 per month. Husband's accountant stated that his computations indicated she needed only $1,744.00 per month, excluding gifts and clothing obtained from a company the parties own. Under the well established principles which control our review, we find no abuse of discretion. Husband's point is denied.

Husband's second issue alleges that the award of attorney's fees and suit monies was an abuse of discretion, not supported by substantial evidence, and was against the weight of the evidence. We disagree. The court, under § 452.355, RSMo 1986, may from time to time, order one party to pay the other a reasonable amount for the cost of maintaining or defending...