Hammer v. Hammer

• Decision Date: 27 July 2004
• Docket Number: No. WD 62368.,WD 62368.
• Citation: 139 S.W.3d 239
• Parties: Christina Jean HAMMER, Respondent, v. Stanley Junior HAMMER, Appellant.
• Court: Missouri Court of Appeals

139 S.W.3d 239

Christina Jean HAMMER, Respondent, v. Stanley Junior HAMMER, Appellant.

No. WD 62368.

Missouri Court of Appeals, Western District.

July 27, 2004.

Appeal from the Circuit Court, Clay County, Kathryn Elizabeth Davis, J Curtis G. Eylar, Kansas City, MO, for Appellant.

Larry S. Buccero, Lee's Summit, MO, for Respondent.

Before VICTOR C. HOWARD, HAROLD L. LOWENSTEIN, and JAMES M. SMART, JR., JJ.

JAMES M. SMART, JR., Judge.

Stanley Hammer (Husband) appeals the trial court's judgment and decree of dissolution of his marriage to Christina Hammer (Wife). Husband raises one point on appeal, claiming that the maintenance award was excessive and not supported by the evidence. We affirm.

Background

The parties to the dissolution were married in 1974. They have five children, two of which, a 13-year-old and an 11-year-old, were still unemancipated. In August 2001, Wife filed her petition for dissolution of marriage, which included a prayer for maintenance. The trial court found that Wife lacked sufficient property to provide for her own needs, that she was unable to support herself through appropriate employment, and awarded Wife $900 monthly maintenance. Husband appeals the amount of the award.

Standard of Review

Provisions in a divorce decree will be affirmed unless there is no substantial evidence to support them, they are against the weight of the evidence, or the trial court incorrectly declares or applies the law. Stangeland v. Stangeland, 33 S.W.3d 696, 700 (Mo.App.2000). The trial court has broad discretion in awarding maintenance, and its decision will not be overturned absent an abuse of discretion. Id. To determine whether the trial court abused its discretion, this court reviews the evidence in a light favorable to the decree, disregarding any evidence to the contrary and deferring to the trial court's judgment even if the evidence could support a different conclusion. Id.

Maintenance

The court's award to Wife of maintenance in the amount of $900 per month is the sole focus of this appeal. Husband does not deny that Wife should receive maintenance; he contends that $900 per month ($10,800 per year) is excessive.

Section 452.335 prescribes the approach the court is to take in determining maintenance. The court first must determine whether the threshold requirements for maintenance are met. The court can award maintenance only if it finds that the spouse seeking maintenance:

(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and

(2) Is unable to support himself 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.

§ 452.335.1. If there is a gap between the "reasonable needs" of the spouse and the resources and potential earnings of that spouse, and the other spouse has the ability to pay maintenance, maintenance should be awarded. See Estes v. Estes, 767 S.W.2d 370, 373 (Mo.App.1989).

When maintenance is to be paid, the court is to consider all relevant factors in ascertaining a just and reasonable award of maintenance:

The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:

(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;

(2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance 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 apportioned to him and the separate property of each party;

(6) The duration of the marriage;

(7) The age, and the 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) The conduct of the parties during the marriage; and

(10) Any other relevant factors.

§ 452.335.2. This statute gives broad discretion to the trial court in applying factors on which the award is based. Stangeland, 33 S.W.3d at 701. The court is to apply the factors so as to balance the reasonable needs of the spouse seeking maintenance against the ability of the other spouse to pay. Hosack v. Hosack, 973 S.W.2d 863, 872 (Mo.App.1998). "[T]he court is not required [in the absence of a request for specific findings] to announce for the record the significance of and the weight that it gave to each factor in determining its award of maintenance." See Stangeland, 33 S.W.3d at 701 (quoting McCallister v. McCallister, 809 S.W.2d 423, 429 (Mo.App.1991)).

In this case, the trial court did not make a specific finding as to Wife's needs. The court is not required to make such findings in the absence of a proper request. Id. Therefore, we must consider all factual issues as having been resolved in accordance with the results reached. Rule 73.01(c). See, e.g., Childers v. Childers, 26 S.W.3d 851, 855 (Mo.App.2000); Johnson v. Johnson, 671 S.W.2d 426, 427-28 (Mo.App.1984) (where no finding as to wife's reasonable needs and no request for specific findings, facts are assumed to have been found in accordance with the result reached). Accordingly, in view of Wife's earnings and the award of maintenance the trial court implicitly found that Wife's reasonable needs were about $29,500 per year.

Husband's and Wife's Needs and Earnings

At the outset, it must be stated that this is a somewhat unusual case, for reasons related to Wife's extremely timid and faltering attempt to prove her reasonable needs. At trial, Wife presented evidence as to some of her anticipated expenses. She submitted figures for rent, telephone, trash service, automobile gas and oil, automobile insurance, health and dental insurance, food, clothing, prescription drugs, dental care, vision care, hair salon, toiletries, and cell phone. She failed to present any estimate for expenses for utilities, renter's insurance, car maintenance, car depreciation, and personal property taxes. Thus, the "reasonable needs" she would have post-dissolution were not entirely clear. Husband, looking at Wife's proof of expenses, says that the reasonable needs she proved amount to about $20,000 per year.

Wife earns less than her reasonable needs. Wife earns $9.65 per hour as a retail clerk and works approximately forty hours per week. Wife's gross monthly income is about $1673. Her paystub indicates that her net monthly income is about $1542, or about $18,500 per year.

Husband has worked at Ford Motor Company for 35 years. He has also earned a small amount each year from part-time work as a "utility man." Wife had only occasionally worked outside the home. Husband's earnings in the recent five years had progressed steadily from $60,000 in 1997 to a high of $140,000 in 2001. The court averaged Husband's income over the past five years and found it to be an average of $7400 per month, or approximately $89,000 per year.

Apparently, the parties were used to living at the upper limit of their income. At the time of the dissolution they owned a house and swimming pool valued at $255,000 with a net equity of $5,000 and mortgage payments of $2,250 per month. They also each had credit card debt of close to $15,000. The couple owned three vehicles and other items of tangible personal property, but had little in the way of investments or other assets (apart from Husband's pension) to divide. There was no non-marital property.

There were two hearings. During the first hearing, Wife was still in the marital home. The court awarded joint legal and physical custody, and established maintenance at $900 per month. Husband then moved to reopen the evidence. The court granted Husband's motion to reopen. The court heard additional evidence, and again ruled, inter alia, that maintenance would be $900 per month. During the period Wife had remained in the marital home, Husband made the house payments, paying all the utilities. At the time of the second hearing, Wife had just moved to a townhouse having a rent of $660 per month.

The parties share joint legal and physical custody of the youngest child, Elizabeth. The thirteen-year-old, Daniel, is in Husband's custody. The emancipated nineteen-year-old, Timothy, also resides with Husband. Husband was initially ordered to pay child support in the amount of $500 per month when it appeared both children would be in joint custody. After the rehearing, the support was reduced to $350 per month, and Daniel was placed in Husband's custody. The marital home was awarded to Husband, subject to the mortgages. Two pick-up trucks, including a 1999 F-150, were awarded to Husband, and one vehicle, a 1998 Ford Windstar, to Wife. Each was awarded a portion of the household furnishings. The non-mortgage debts were distributed according to the identity of the cardholder: $13,000 assigned to Wife, and $15,000 assigned to Husband.

Wife's Anticipated Expenses

Appellant Husband argues that Wife failed to show that she had reasonable needs that could amount to more than the expenses she proved at trial. Husband does not dispute the items Wife did submit. He also acknowledges that her gas utility expense could be $75 per month, although her proof of her gas expense was at best weak.¹ He does not acknowledge any other amount for any other utility or any other expense. He argues that the court is limited to specific expenses that Wife proved, even if it is obvious she failed to prove other necessary expenses.

In response, Wife essentially acknowledges that she...