Hogan v. Hogan, 57280

• Decision Date: 11 September 1990
• Docket Number: No. 57280,57280
• Citation: 796 S.W.2d 400
• Parties: In re the Marriage of James L. HOGAN, Respondent, v. Magdalena HOGAN, Appellant.
• Court: Missouri Court of Appeals

Page 400

796 S.W.2d 400

In re the Marriage of James L. HOGAN, Respondent, v. Magdalena HOGAN, Appellant.

No. 57280.

Missouri Court of Appeals,

Eastern District,

Division Four.

Sept. 11, 1990.

Susan M. Hais, Theresa Counts Burke, St. Louis, for appellant.

Ellen F. Watkins, Clayton, for respondent.

STEPHAN, Judge.

Magdalena Hogan appeals from the judgment of the trial court dissolving her thirty year marriage with James L. Hogan. She raises several points on appeal concerning the award of maintenance and attorney's fees, the valuation of certain marital property and the division of marital property. We affirm.

The parties married May 3, 1958, and separated May 30, 1985. At the time of trial on June 13, 1989, husband was fifty-eight and wife was fifty-nine years old. Their three children were already emancipated.

Husband worked as a commercial artist at various jobs until 1963 or 1964 when he started his own business, the James Hogan Art Studio located on Macklind Avenue in the City of St. Louis. In 1968 he also began teaching full-time at Forest Park Junior College. In 1985, after seventeen years at the college, he decided to retire under its early retirement incentive program and to pursue only his business at the art studio. That same year he also formed a partnership in Grae Gallery of St. Louis, a fine arts gallery where art on consignment was displayed for sale. The gallery space was located in the same building as his studio on Macklind. By the time of trial, however, he had shuttered the gallery because it was losing money.

Wife, a woman with excellent academic credentials upon completing college, had worked initially as a dress designer full-time for five to seven years. She continued to work part-time in that field until 1964. From 1965 to 1979, she worked occasionally with her husband in the commercial art field; however, she directed her energy primarily as homemaker and caretaker for the couple's three children.

Wife had various surgeries in the 1970's and a breast biopsy in 1986. At the time of trial, she was under doctor's care for back and neck problems and osteoporosis. She also was receiving psychiatric treatment.

After hearing this evidence, and more, in a one day trial, the trial judge issued lengthy findings of fact and conclusions of law. A summary from the dissolution decree reflects the marital property distribution (other than husband's pension):

                             Petitioner/Husband                        Respondent/Wife
                Macklind Building                 $64,540.00  Greenview Residence    $64,400.00
                1972 Oldsmobile Cutlass               400.00  1986 Oldsmobile          7,000.00
                                                                Calais
                1981 Mercury Lynx                     100.00  Jewelry, furs and        1,000.00
                                                                luggage
                Household items                       750.00  Household items          9,060.00
                Assets of Grae Gallery                   "0"  Bank accounts           17,790.83
                  partnership
                Assets of James Hogan Art Studio    3,000.00
                Bank accounts                      15,716.05
                                                  ----------                         ----------
                                                  $84,506.05                         $99,250.83
                

The trial court also awarded wife substantial furnishings and household goods as her separate property, in addition to about seventeen thousand dollars in funds from certificates of deposit. Husband was awarded furniture and antiques from his family valued at about sixteen hundred dollars as his separate property.

Before we address appellant's five points, we note at the outset that our review is governed by the principles of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We will affirm the trial court's judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Id. at 32[1-3]. Further "[a]s trier of fact, it is the function, indeed the duty, of the trial court to decide the weight and value to be given to the testimony of any witness. On appeal, we view the evidence in a manner favorable to the decree and disregard contradictory evidence." Wynn v. Wynn, 738 S.W.2d 915, 918 (Mo.App.1987). "We defer to the trial court even if the evidence could support a different conclusion." Id.; Langdon v. Langdon, 792 S.W.2d 645, 646 (Mo.App.E.D.1990).

Appellant's first point asserts the trial court's award of maintenance was flawed. In its decree, the trial court made several findings of fact germane to the issue of maintenance. The court noted that, subject to a pendente lite order entered October 27, 1986, husband had made monthly payments of $1,050 to wife for temporary maintenance. Of that amount, wife attested in her deposition taken in October 1988 that she had saved about $150 monthly up to that time. However later, at trial, wife testified that she had only saved $100 per month. Husband had also been paying wife's health insurance premiums; however, by the time of trial, wife had begun to make her own health insurance payments of $185 per month. The trial court determined, after adding the expense of the health insurance premiums to the support amount husband had paid wife during their separation, that $1235 reflected wife's reasonable needs. He found wife capable of contributing $500 per month to meet these needs and ordered husband to pay $930 in maintenance which, after deducting federal and state income tax, netted $735, the difference between wife's needs and her own contribution to those needs.

The trial court further provided that husband's obligation to pay wife maintenance be reduced dollar for dollar by whatever amount wife receives from husband's retirement plan, not to exceed $400 per month, beginning October 1990 or whenever husband's retirement plan actually commenced. The trial court implemented the same strategy in reducing wife's monthly maintenance award based on any social security benefits she would receive as his ex-spouse beginning when wife turns sixty-five on May 23, 1995.

Wife criticizes the maintenance award for seven reasons. She states the trial court erred in awarding certain marital property as maintenance causing her to dissipate the property to support herself; in decreasing the maintenance award with no substantial evidence to support it; in attributing income to her without sufficient evidence to do so; in basing the amount needed by her on a pendente lite award; in not taking into account her age and health; in failing to take into account husband's imputed earnings from having quit a job when the parties separated; and in considering disability payments without the necessity of modification. We address each of her seven subpoints.

Wife's first subpoint contends the trial court erred in finding that husband's Missouri State Teachers' Retirement Plan was a marital asset which could be used to fund a portion of her maintenance. She recognizes that husband's retirement plan is a marital asset subject to division but argues that the trial court's order permitting husband's maintenance payments to her to be reduced, dollar for dollar, by the amount she receives from his retirement fund effectively requires wife to expend her marital property to fund her maintenance. She concludes that, in this case, the court considered maintenance first and determined how it could be funded by marital property.

We are at a loss to understand wife's specific complaint about the trial court's reduction of wife's maintenance based on her receipt of future pension benefits. Pursuant to section 452.335.1 RSMo Cum.Supp.1989, a court may award maintenance if the spouse seeking maintenance "[l]acks sufficient property, including marital property apportioned to him, to provide for his reasonable needs"; and is unable to support himself through appropriate employment. (Emphasis added.) The court here ordered husband's pension to be divided equally between the parties. It found that the pension had a present cash value of approximately $51,520.00, but that to distribute it in a lump sum cash form would hurt both parties by denying them the benefit of the matching funds contributed by the State through the St. Louis Community College District. The court elected for a deferred payment plan in which both parties would receive about four hundred dollars a month for the rest of their respective lives. To the extent that wife would receive the pension proceeds in the future, the trial court impliedly found this apportionment of the pension offset any lack of property by wife in meeting her reasonable needs otherwise entitling her to maintenance. This court has recently recognized that upon valuation and division of a pension plan, such sum may reduce the amount of maintenance awarded. See e.g. Schelsky v. Schelsky, 796 S.W.2d 888, 893 (Mo.App.1990).

Wife's second and third attacks on the maintenance award claim the trial court's determination that wife could contribute $500.00 to meet her reasonable needs lacked any substantial evidence. The trial court stated as follows:

Respondent [wife] is to some extent able to obtain employment on a limited basis and to help contribute towards her own support. Respondent testified that she knew how to sew, had sewn for herself and knew of no reason why she could not sew clothing for others if they were paying her to do so. The testimony of various witnesses, including Respondent herself, indicated that Respondent is an intelligent woman with a college degree and a background in fashion design and commercial art. Although the Respondent has been out of the work force for some time, the Court believes and finds that she can secure work as a seamstress either outside the home or inside the home depending on her preference.

The court attributed to wife the ability to work some fifteen to twenty hours weekly, grossing $645.00 monthly at a minimum,...