Harper v. Harper, s. 54573

• Decision Date: 10 January 1989
• Docket Number: Nos. 54573,54738,s. 54573
• Citation: Harper v. Harper, 764 S.W.2d 480 (Mo. App. 1989)
• Parties: Michael A. HARPER, Plaintiff-Respondent, v. Shirley C. HARPER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 480

764 S.W.2d 480

Michael A. HARPER, Plaintiff-Respondent, v.Shirley C. HARPER, Defendant-Appellant.

Nos. 54573, 54738.

Missouri Court of Appeals,

Eastern District,

Division Five.

Jan. 10, 1989.

Rehearing Denied Feb. 15, 1989.

Suzanne R. Reinhold, John P. Lewis, Co-Counsel, St. Louis, for defendant-appellant.

Mark H. Neill, St. Louis, for plaintiff-respondent.

PUDLOWSKI, Chief Judge.

This is an appeal from a decree of dissolution entered by the Honorable Evelyn M. Baker of the Circuit Court of the City of St. Louis.

Shirley C. Harper, appellant, and Michael A. Harper, respondent, were married on May 8, 1970 and separated in October of 1985.The couple also had one child, Laura A. Harper, born on January 2, 1972.Appellant raises seven points on appeal which will be addressed in turn.Appellant first contends that the trial court erred in only awarding appellant $300.00 per month for twenty-four months because the evidence indicated that appellant was disabled and that there was no evidence indicating that appellant would be able to support herself in the future.

As a threshold matter, respondent contends that the amendments to § 452.335 RSMo (1988 Supp.), which became effective after the court's order, should be applied retrospectively and preclude our review of this issue.Prior to the amendments to § 452.335, an order of maintenance for a fixed period of time was treated the same as a lump sum award.Such an award was not subject to modification and reviewable only on appeal.Under the new law, the court may award maintenance which includes a termination date and subsequently modify the order if there is a substantial change in circumstances which occur prior to the termination date of the original order.§ 452.335(3).Respondent claims that under the amendment to § 452.335appellant should be seeking a modification of the order by the trial court rather than an appeal.We do not have to decide if the amendments to § 452.335 should be applied retrospectively.The proper relief under both statutes, when there is an allegation of trial error in the award of maintenance, is a review of the original judgment by appeal.A modification proceeding is not the proper forum for determining the validity of the original order nor is it used to relitigate issues that have already been before the trial court.In reviewing maintenance orders our review is limited to determining whether the trial court has abused its discretion.Hahn v. Hahn, 739 S.W.2d 763(Mo App.1987).

Turning now to appellant's first point.Whether a decision to limit maintenance is appropriate depends upon whether substantial evidence existed at the time of the order to justify imposition of the limitation.Doerflinger v. Doerflinger, 646 S.W.2d 798, 802(Mo. banc, 1983).Maintenance of limited duration is proper only in circumstances where the record indicates to the trial court that there may be some impending change in the financial condition of the parties or at least a reasonable expectation that such a change will occur.Willyard v. Willyard, 719 S.W.2d 91, 93(Mo.App.1986).Appellant was forty-nine at the time of trial, with a ninth grade education and a subsequent GED certificate.Appellant also possesses basic secretarial skills.Appellant has had numerous jobs but has never been able to maintain a job for more than a few months.Appellant has a manic depressive personality that has almost totally disabled her.Her depression has lead to crying spells, loss of sleep, and an attempted suicide.Appellant also suffers from high blood pressure and may require surgery to correct an eardrum ailment.Expert testimony indicated that appellant was nearly totally disabled and although a job may be beneficial to her, she would probably be unable to keep a job due to her depression.The record is totally lacking in any evidence which would indicate that appellant would be able to support herself in the future.We therefore find that the trial court erred in limiting maintenance to twenty-four months and modify the decree to provide for maintenance unless and until a proceeding for modification is brought and a change deemed appropriate under § 452.370.

Appellant's second contention is that the trial court erred in awarding her only $300.00 per month.In determining the amount of maintenance, the trial court must balance the reasonable needs of the spouse seeking maintenance against the husband's capacity to pay.Woods v. Woods, 713 S.W.2d 292(Mo.App.1986).The record indicates that appellant's monthly expenses are approximately $1,000.00 per month.This amount greatly exceeds her monthly income of $300.00 that she would receive from the maintenance award.As previously noted, appellant is unable at this time to provide for herself and that her financial situation is unlikely to improve in the future.At the time of trial respondent was paying $340.00 per month in rent and approximately $155.00 per month for utilities to maintain appellant in the marital home for a total of approximately $500.00 per month.This amount was in addition to respondent's own living expenses.After paying this amount respondent's monthly expenses exceeded his monthly income by approximately $200.00 per month.After a review of the record it is clear that the trial court carefully weighed the factors enumerated in § 452.335 and did not abuse its discretion in awarding $300.00 per month in maintenance to appellant.

Appellant's third contention is that the trial court erred in awarding her only twenty-five percent of respondent's monthly pension when such pension is payable to respondent and twenty-five percent of any lump sum paid to respondent as a retirement fund.At the time of the trial, respondent's pension had vested and he had a right to collect retirement benefits in the amounts of $1,049.58 per month until death and a lump sum payment of $23,433.37.Respondent's pension plan provides that if he continues his employment with the police department his retirement benefits will increase until such time as he chooses to retire.Respondent has contributed for a total of twenty-three years to his pension plan, six of those years preceded his marriage to appellant.Therefore, it is proper to consider seventy-four percent of the pension as marital property subject to division under § 452.330.Weiss v. Weiss, 702 S.W.2d 948(Mo.App.1986).In reviewing a division of marital property an appellate court must give deference to the trial court's division of marital property and will interfere only if the division is so heavily and unduly weighted in favor of one spouse as to amount to an abuse of discretion.Cartwright v. Cartwright, 707 S.W.2d 469(Mo.App.1986).The trial court awarded an amount equal to twenty-five percent of respondent's pension to appellant and an amount equal to seventy-five percent of the pension to respondent.Had the trial court divided the marital property portion of the pension equally appellant would...