Hilger v. Hilger

• Court: Missouri Court of Appeals
• Writing for the Court: Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON; SWOFFORD
• Citation: Hilger v. Hilger, 570 S.W.2d 736 (Mo. App. 1978)
• Decision Date: 31 July 1978
• Docket Number: Nos. KCD,s. KCD
• Parties: Irene Rose HILGER, Appellant, v. Earl George HILGER, Jr., Respondent. 28675, KCD 28800.

Page 736

570 S.W.2d 736

Irene Rose HILGER, Appellant, v. Earl George HILGER, Jr., Respondent.

Nos. KCD 28675, KCD 28800.

Missouri Court of Appeals, Kansas City District.

July 31, 1978.

Motion for Rehearing and/or Transfer Denied Aug. 28, 1978.

William Brandecker, Ronald E. Smull, Brandecker & Smull, Columbia, for appellant.

David V. Bear, III, Bear, Hines & Thomas, Columbia, for respondent.

Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J SWOFFORD, Chief Judge.

These appeals arise from a dissolution of marriage proceeding. The trial court entered a decree of dissolution, division of property, an award of custody of two children to the petitioner-mother (appellant), child support, and separate maintenance. The appellant's motion for a new trial was overruled and she took an appeal from that decree, which was lodged here as number KCD 28,675. Thereafter, in the court below, the appellant filed a motion for maintenance, child support pendente lite pending appeal of the principal decree, and for costs and attorney's fee on appeal. A hearing on this motion was had and an order entered allowing appellant such an award for attorney's fee and costs on appeal, and she took an appeal from that judgment, which was lodged here as number KCD 28,800. By order of this Court, these appeals were consolidated and are thus submitted.

The appellant's assignments of error, in summary, are (I) the Court erred in the division of marital property contrary to Section 452.330 RSMo Supp.1973, and that the division was unjust, arbitrary and an abuse of discretion; (II) the Court erred in its award of child support contrary to Section 452.340 RSMo Supp.1973, and that such award was inadequate, arbitrary and an abuse of discretion; (III) the Court erred in failing to specifically set over to the appellant a Union Mutual Insurance Company policy as her separate property and that the portion of the decree dealing with the parties' life insurance policies is vague, indefinite and ambiguous; and (IV) the Court erred and abused its discretion in allowing inadequate attorney's fee and costs to appellant on appeal.

The transcript of the proceedings below consisting of 470 pages has been carefully reviewed. For the purpose of decision of these appeals, the great mass of evidence and exhibits need not here be discussed in detail. The facts now pertinent disclose that the appellant and respondent were married in 1951 and were permanently separated in April of 1973. They both agreed in the court below that the marriage was irretrievably broken and the extent and nature of the marital estate was stipulated. The respondent was a practicing dentist in Columbia, Missouri, in good health, whose adjusted gross income from his profession at the time of the hearing was approximately $50,000.00 and was shown to have gradually increased to that figure during his years of practice. The appellant had devoted her married life to being a mother and housewife, possessed no job skills, and had been under treatment for depression and other mental problems for a number of years. Her doctor testified that she had shown improvement since the separation. He stated that she is an adequate parent and able to care for the children.

There were four children born of the marriage. Carolyn, the older, was 22 years of age at the time of the hearing, did not live with either parent, and was fully emancipated. Randy, 19 years old at the time of the hearing, lived with his sister Carolyn, was earning $100 per week, and testified he was able to take care of himself. Debbie, aged 12 years, and Gene, 10 years, lived with the appellant and the decree of dissolution awarded their custody to her with visitation rights to respondent.

Without setting forth the detailed evidence, the appellant testified that her and the two children's monthly living expenses were about $1,313.00. The evidence showed that the respondent's expenses, including the payment of insurance premiums and taxes, were approximately $3,000.00 per month. There was no real dispute or conflict in this evidence, although the appellant testified that Randy, the older son, needed assistance from his parents when he was attending college to the extent of $100.00 per month, although he did not express such need.

The decree of dissolution awarded the appellant $500.00 per month for her maintenance and $200.00 per month per child for the two younger children.

In addition, the decree awarded the appellant $2,500.00 for attorney's fee and $150.00 suit money. In addition, the court later awarded appellant additional sums of $750.00 attorney's fee and $750.00 as suit money on appeal, but left the maintenance and child support awards as in the decree of dissolution.

The appellant's position here is that these awards are so unjust and arbitrary as to evidence an abuse of discretion.

It is to be noted that the appellant asks this Court to so find and to award her $250.00 per month for each child in her custody, but makes no request for an increase in her maintenance award. The dispute in this area therefore now involves an increase of $1,200.00 per year in child support. She also asks this Court to increase the award of attorney's fees on appeal to $2,000.00 ($1,250.00 increase) and the award for suit money on appeal to $1,000.00 ($250.00 increase).

The burden of demonstrating the error and abuse of discretion charged is upon appellant. Suesserman v. Suesserman, 539 S.W.2d 741, 743(3) (Mo.App.1976) and cases cited therein. Generally, awards of maintenance and child support in dissolution proceedings rest within the sound discretion of the trial court to be exercised within the legislative guidelines in Section 452.340 RSMo Supp.1973, and the record below is reviewed here only to determine whether that discretion was abused. Naeger v. Naeger, 542 S.W.2d 344, 347(6-8) (Mo.App.1976) and cases cited therein. See also, Roark v. Harvey, 544 S.W.2d 287, 291(1) (Mo.App.1976) wherein this Court applied the principles of review delineated by the Supreme Court in Murphy v. Carron,536 S.W.2d 30, 32(1) (Mo.banc 1976) and held that the fact that evidence appearing in the record which would support a different conclusion than that reached by the trial court did not warrant a reversal. 536 S.W.2d 30, 32(3), supra.

While the award made below cannot be said to be liberal, upon the facts in the record, the court below maintains continuing control over the matter of maintenance and child support and will from time to time upon proper showing review the awards and, if necessary and appropriate, adjust them to the then existing conditions. It cannot be said that the awards for child support, attorney's fees and suit money here under review were arbitrary and unjust, and no abuse of discretion appears. Appellant's Points II and IV are ruled against her.

Appellant's Points I and III are considered together since both basically attack the decree below as it relates to the division of marital property. The decree of dissolution herein made the following division of such property (in summary):

1. To appellant: A mink coat and rings and other personal effects, an automobile, silver, and other specific items of household effects, silver coins and trophies. No value was placed on these items, except the automobile, which appellant stated was worth $300.00.

To respondent: Century State Bank stock representing an investment of $1,500.00 and, at the time of the hearing, of doubtful value; dental office equipment of undepreciated tax value of $9,691.00; professional accounts receivable, $30,877.25; Mercury automobile, $1,000.00; four (4) paintings, value not shown, and clothing and personal effects.

The court ordered that all other household goods be divided in kind or, in the absence of an agreement, be sold at private sale if parties agreed within six months or thereafter by the Sheriff of Boone County, and the net proceeds (in either event) to be divided equally.

2. The decree further provided that the family home be sold at private sale, if agreed upon, or at public sale after six months by the Sheriff. The net proceeds to be divided equally. The value of this property was $60,000.00-$65,000.00.

3. A pleasure boat owned by the parties to be sold under the same conditions and the net proceeds divided equally. Its value was placed at $1,900.00.

4. U.S. Savings Bonds to be divided equally, in kind, at their current value, which at the time of the hearing was $2,338.12.

5. An allowance to appellant of $15,000.00 "as portion of value of...