Heins v. Heins, WD

• Decision Date: 30 January 1990
• Docket Number: No. WD,WD
• Citation: 783 S.W.2d 481
• Parties: In re the Marriage of Katherine Ann HEINS, Respondent, v. Gerald Lee HEINS, Jr., Appellant. 41424.
• Court: Missouri Court of Appeals

Page 481

783 S.W.2d 481

In re the Marriage of Katherine Ann HEINS, Respondent, v. Gerald Lee HEINS, Jr., Appellant.

No. WD 41424.

Missouri Court of Appeals Western District.

Jan. 30, 1990.

A.V. McCalley, McCalley and Gorham, Richmond, for appellant.

Michael W. Bradley, Carrollton, for respondent.

Before MANFORD, P.J., and SHANGLER and CLARK, JJ.

CLARK, Judge.

In this dissolution of marriage case, the husband appeals contending that the trial court erred in its award of child support, maintenance and attorney fees and in the division of marital assets. The basis for the claims of error in support and maintenance allowances lies in the husband's contention that the court overvalued both the wife's needs and the husband's ability to pay while, at the same time, failing to take into account the wife's ability to generate income for herself. As to the division of marital assets, the complaint is that the distribution was grossly and unfairly disproportionate.

Few of the facts in the case were contested. The parties were married in 1977 and separated eleven years later. Three children were born, the oldest being age six at the time of trial. The husband was employed at all relevant times by his father who owned and operated a construction business. The parties' joint income in 1986 amounted to $40,219 and in 1987, was $41,755, the majority of which was attributable to the husband's wage of $9.00 per hour. In 1988, it was expected that the husband's earnings would be reduced because of a downturn in the construction business, but the husband was assured by his father of having work, if any was to be had, even if no one else in the company was employed.

At the time the parties separated, the wife had no employment. During the marriage, she did some work on a part-time basis. In 1985, 1986 and 1987, she earned income as an accounting and payroll clerk working for her father-in-law. The wife's health was good, but her income generating prospects were limited, first by her current inability to find employment, and by the need to provide child care for the three young children.

The parties had acquired two residences during the marriage, an original house known to them as the old home, and another house bought in September, 1987. Both properties were mortgaged. After the separation, the husband ceased making payments on the debt owed on the home bought in 1987, the mortgage was foreclosed and the property was purchased by the husband's parents.

The trial court was not requested to value the marital assets and it did not do so. The wife was awarded the old home, subject to the remaining mortgage debt, a 1984 Chevrolet and personal items and household goods in her possession, and was ordered to assume a marital debt of $3741.00 owed a bank. The husband was awarded the 1983 Chevrolet truck, a camping trailer, farm implements and personal property in his possession. The husband was ordered to pay two bank notes totalling $6683.00 and another bank note for a loan the husband obtained after the parties had separated.

The wife was awarded custody of the three children. The husband was ordered to pay $50.00 per week per child as child support and $200.00 per month maintenance to the wife. The wife was also allowed $1550.00 attorney fees. In a post-judgment motion hearing, after the husband had filed his notice of appeal, the wife was allowed an additional attorney fee payable by the husband for services on the appeal.

The first two points of the husband's appeal will be addressed concurrently, the complaint being that the amounts of child support and maintenance were excessive when balanced against the wife's needs and the husband's ability to pay.

The primary infirmity in the trial court's award, discounting entirely the husband's assertions that his ability to pay was not sufficiently noted and that the wife's earning capabilities were ignored, lies in the fact that the needs of the wife and children were over satisfied. The wife testified that the living expenses for herself and the children amounted to $378.00 per month, exclusive of housing. Because the trial court set over to the wife the residence known as the old house, her need for shelter is met by payment of the mortgage installments on that property in the amount of $125.00 per month. Under the evidence presented, the total cost for full support of the wife and children amounted to $503.00 per month, not counting such income as the wife was occasionally generating from part-time occupation. Under the court's decree, however, the husband was ordered to pay over $800.00 per month for child support and maintenance.

It is apparent that the wife's estimates of her support needs were modest, but presumably accurate because they were itemized and based on several months' experience while living apart from the husband after the separation. The wife makes no effort in her brief to explain why an allowance of child support and maintenance of some $300.00 per month over her stated expenses was or is justified. Certainly support payments must be limited to the demonstrable needs of the party receiving support and not to provide an accumulation of capital.

As to the two points on appeal regarding the amounts of child support and maintenance, appellant asks only that the awards be reduced. The amounts of reduction are not suggested nor does any ready basis appear in the record from which this court could fashion a formula to allocate the reductions between child support and maintenance. This is not a case, such as Arnold v. Arnold, 771 S.W.2d 914 (Mo.App.1989), in which we elect to apply Rule 84.14 and enter the judgment the trial court should have rendered. There is doubt that justice would thereby be served. Moreover, the cause must be returned to the trial court for consideration of the issue discussed below, whether the award of maintenance is to be designated as modifiable.

Having in mind that the trial court is primarily responsible to exercise its discretion in entering awards of child support and maintenance, and that considerable discretion rests there for both decisional purposes, Steffens v. Steffens, 773 S.W.2d 875, 876 (Mo.App.1989); In Re Marriage of Reed, 762 S.W.2d 78, 85 (Mo.App.1988), it is appropriate in this case that it be returned to the trial court to re-examine the awards of child support and maintenance and to reduce the allowances at least to amounts of not more than the actual demonstrated support requirements for the wife and children. In those respects, appellant's points one and three are sustained.

In point two of his appeal, the husband complains that the decree in general and the maintenance award in particular failed to take account of the fact that the wife, being young and able bodied, was capable of generating income from employment and in fact had some income during the period since the separation. He points to the statute which instructs the court that...