Hileman v. Hileman, 66449

• Decision Date: 21 March 1995
• Docket Number: No. 66449,66449
• Citation: 909 S.W.2d 675
• Parties: Deborah HILEMAN, Respondent/Cross-Appellant, v. Randy Lee HILEMAN, Appellant/Cross-Respondent.
• Court: Missouri Court of Appeals

Page 675

909 S.W.2d 675

Deborah HILEMAN, Respondent/Cross-Appellant, v. Randy Lee HILEMAN, Appellant/Cross-Respondent.

No. 66449.

Missouri Court of Appeals,

Eastern District,

Division One.

March 21, 1995.

Case Transferred to Supreme Court

April 20, 1995.

Case Retransferred to Court of

Appeals Oct. 24, 1995.

Original Opinion Reinstated Nov. 22, 1995.

Sally Rajnoha, Ballwin, for appellant.

Bruce Hilton, Lawrence G. Gillespie, Webster Grove, for respondent.

GARY M. GAERTNER, Judge.

Appellant/Cross-Respondent, Randy Lee Hileman ("husband"), appeals from that part of a decree of legal separation issued by the Circuit Court of the County of St. Louis awarding Respondent/Cross-Appellant, Deborah Hileman ("wife"), maintenance of $800 per month. Wife cross-appeals from that part of the decree ordering her to refinance the marital home within sixty days or put it up for sale. We affirm as modified.

Husband and wife married on August 31, 1985. The couple had no children. ¹ Husband and wife separated on or about November 15, 1993. Wife filed for a decree of legal separation in December of 1993. Trial was held on April 7, 1994, in St. Louis County Circuit Court.

Husband testified to the following. At the time of trial husband worked as a chemical operator for Mallinckrodt Chemical. He earned approximately $47,000 in gross pay for 1993, or a little under $4,000 per month. However, husband claimed his base pay was $32,000 to $33,000 per year; due to flooding in 1993, he was able to earn an unusually large amount of overtime pay which would not be available in a normal year. Husband had earned $6,689.66 through February 11 of 1994. According to husband, his total average monthly expenses were $1,873. This last amount included the $800 husband sent wife every month since their separation.

Husband and wife had two loans on their marital home: a mortgage with Leader Federal, for $79,000; and a home equity loan with Boatmen's Bank, for $8,709. Wife made monthly payments of $814.19 on the mortgage to Leader Federal with the money husband sent her. ² The home was assessed at $90,200 by the county assessor. According to husband, the home was appraised for purposes of the equity loan at $103,000, although in his opinion its value was $113,000. Husband asked that the home be sold and the proceeds split equally between he and wife.

Wife testified to the following. She was 42 years old at the time of the trial, in generally good health, ³ and a high school graduate. She had worked for Petrolite Corporation ("Petrolite") full-time for 17 years, first as a billing clerk and later as a "weigher/packer/marker" in the plant. Wife earned approximately $34,000 in 1990 and 1991, and between $28,000 and $30,000 in the preceding five years. Wife had worked and supported herself for ten years prior to meeting husband, who also worked for Petrolite.

In 1991, both husband and wife took voluntary dismissals from Petrolite upon being informed the plant was closing. ⁴ Prior to leaving Petrolite, wife applied for two different positions and received offers; however, she rejected both offers as they paid much less than what she was currently earning. After leaving Petrolite, wife applied for various jobs over the course of a year. Wife received one offer for a full-time position; she turned down that offer as well, as it offered lower pay ($7 per hour) than she had been earning, and no benefits. Wife collected weekly unemployment compensation during her year-long job search.

In April of 1993, wife landed a part-time position as a warehouse clerk with NARCO Medical Services ("NARCO"). At the time of trial, wife worked four hours a day, five days a week, and earned $8 per hour. Wife claimed she liked her job with NARCO and was told when hired that her position might become full-time, although her part-time status had not changed in the year she had worked there. Wife had applied for an additional part-time position shortly before the trial to supplement her income.

Wife conceded she could not support herself working at her current part-time position, but if she worked full-time she could possibly support herself. Upon questioning by the court, wife admitted there was nothing preventing her from working full-time; she had not sought full-time employment with any other company since she started working for NARCO; and there had been no indication or offer of full-time employment from NARCO in the year she had been working there.

According to wife, her monthly expenses totaled $1,677.29. Wife testified she could not support herself on the income she was currently earning, and asked for maintenance of $1,000 per month. She also asked that she be awarded the marital home. According to wife, the appraisal value of the home was $101,000. Wife believed the marriage was not irretrievably broken and could be preserved with counseling.

On April 29, 1994, the court issued a decree of legal separation. The court made the following findings with respect to the parties' incomes and expenses. Husband earned $3,942 per month in 1993, and $4,143 per month in 1994; his average net monthly income was $2,812. Husband's total average monthly expenses were $1,873, which included the $800 he had been paying wife every month since their separation. For her part, wife's gross earnings were $6,198.38 or $517 per month in 1993, and $767 per month in 1994. Wife's reasonable average monthly expenses totaled $1,677.29.

The court awarded the following property to wife: the marital home; various items of personal property in wife's possession, i.e. furniture ($2,685 total value); one-half of the couple's approximately $4,000 in federal and state income tax refunds; a 1985 Lincoln Town Car ($1,000 value); one-half of the proceeds from a jointly-owned piece of property on Woodland Lake (valued at $2,400); a life insurance policy with $662 cash value; wife's pension from Petrolite for seventeen years' employment ($393.85 per month beginning at age 65); and all checking and savings accounts in wife's possession.

The court found wife was without adequate means to support herself, while husband possessed adequate means to provide support to wife. The court also found the following:

Despite Wife's testimony that she hopes to be employed full time at NARCO ... within a year from the entry of the Decree of Legal Separation and despite that Wife was employed full time outside the home for six of the nine years of the parties' marriage, there is no evidence that establishes that there is an impending change in the financial conditions of the parties; there is no reasonable expectation that such a change will take place within the foreseeable future which would allow Wife to become self-supporting with the exception of Wife's testimony that she will be self-supporting within two years of the entry of the Decree of Legal Separation; and therefore an award of maintenance for Wife of limited duration would be inappropriate.

The court ordered husband to pay wife $800 per month "as and for periodic non-modifiable maintenance for two years, said maintenance to be subject to modification thereafter." The court's decree further ordered:

Wife shall immediately, upon Husband quit-claiming his interest in the marital residence to Wife, within sixty (60) days thereof, either refinance the current obligations or obtain subsequent financing in order to remove Husband's name from the underlying obligations to Leader Federal and the home equity loan at Boatmen's Bank. Failure of Wife to remove Husband's name from those indebtedness [sic], said house shall be sold, and the indebtedness thereon shall be paid. All net proceeds shall be retained by Wife.

Both husband and wife appealed. Their appeals were consolidated on August 23, 1994.

The rules enunciated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), govern our review of this case. See Bixler v. Bixler, 810 S.W.2d 95, 99 (Mo.App.E.D.1991). We will sustain a decree or judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32. We view the evidence in the light most favorable to the decree, disregarding contrary evidence and deferring to the trial court even if the evidence could support a different conclusion. Bixler, 810 S.W.2d at 99 (Mo.App.E.D.1991). "We acknowledge the superior position of the trial court to judge factors such as credibility, sincerity, character of the witnesses, and other intangibles that are not revealed in a trial transcript." Jones v. Jones, 866 S.W.2d 507, 508 (Mo.App.E.D.1993).

We first address husband's appeal, which consists of two points. For his first point, husband contends the circuit court abused its discretion in awarding wife maintenance, as she was capable of supporting herself through appropriate employment.

Our review of maintenance awards is extremely constrained. Maintenance awards rest within the broad discretion of the trial court; we review only for abuse of that discretion. Jung v. Jung, 886 S.W.2d 737, 740 (Mo.App.E.D.1994). The party challenging the maintenance award has the burden of showing an abuse of discretion. Vehlewald v. Vehlewald, 853 S.W.2d 944, 953 (Mo.App.E.D.1993). Judicial discretion is abused when the court's judgment is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock one's sense of justice and indicate a lack of careful consideration. In re Marriage of Vinson, 839 S.W.2d 38, 43 (Mo.App.S.D.1992).

In proceedings for dissolution or legal separation, a spouse seeking maintenance must meet a two-part threshold test: the spouse must (1) lack sufficient property--including marital property apportioned to him or her--to provide for his or her reasonable needs; and (2) be unable to support himself or herself through appropriate employment. RSMo § 452.335.1 (1994); Jung, 886 S.W.2d at 740. We will...