Hosack v. Hosack
| Decision Date | 03 March 1998 |
| Docket Number | No. WD,WD |
| Citation | 973 S.W.2d 863 |
| Parties | James Leonard HOSACK, Respondent, v. Cynthia D. HOSACK, Appellant. 53782. |
| Court | Missouri Court of Appeals |
Gwendolyn S. Froeschner, Shurtleff, Froeschner, Bunn & Aulgur, Columbia, for appellant.
Gary L. Stamper, Walther, Antel & Stamper, P.C., Columbia, for respondent.
Before LAURA DENVIR STITH, P.J., and HANNA and RIEDERER, JJ.
The court below entered a judgment dissolving the marriage of Cynthia D. Hosack and James L. Hosack, dividing the marital and non-marital property, awarding Ms. Hosack primary physical custody of the children and child support totalling $859.01 per month, and sub silencio denying Ms. Hosack's request for maintenance. Ms. Hosack appeals the trial court's denial of maintenance, various aspects of its division of property, its failure to order Mr. Hosack to pay for his son's post-secondary education despite a willingness and ability on his part to do so, and its failure to order Mr. Hosack to provide health insurance for the children.
We agree with Ms. Hosack that the trial court abused its discretion in denying her maintenance. Because she clearly met the threshold test for maintenance under Section 452.335.1, RSMo 1994, we remand with instructions to the court below to determine the amount of maintenance to which she is entitled. We also agree with Ms. Hosack that we must remand because the court erred in failing to award either party $19,277.99 in certificates of deposit in Mr. Hosack's and his children's names, and further direct the court to consider how the award of this property affects the fairness of the prior division of the marital property.
We further agree with Ms. Hosack that the court erred in failing to order Mr. Hosack to pay some or all of his son's tuition and expenses for post-secondary education where, as here, the evidence showed the father had the resources and willingness to do so, and in fact was voluntarily doing so. As it appears the major basis of Mr. Hosack's objection to an order directing him to pay these expenses was his concern that the moneys would go to his spouse and might be in excess of those needed for his son's education, the court on remand should consider ordering Mr. Hosack to pay an amount directly to the school or to his son, as appropriate.
Finally, as both parties agree that the court below erred in failing to order Mr. Hosack to pay for health insurance for the children, we remand for entry of an order so requiring. We reject the parties' other claims of error.
When viewed most favorably to the judgment, the evidence reveals that James L. Hosack and Cynthia D. Hosack were married in Nebraska in 1972. Also in 1972, Ms. Hosack received a Bachelor of Science degree in agricultural economics and a Nebraska teaching certificate. At the time of their marriage, Ms. Hosack was working as a school teacher. She continued in that position for a year or two after the marriage and before the couple had children. Ms. Hosack was primarily responsible for taking care of the couple's children, including, as the children grew older, chauffeuring them to the various activities in which they were involved. In 1988, the couple moved to Missouri. Ms. Hosack has worked at a number of part-time jobs while in Missouri, but none of them as a teacher. Within the five years preceding the dissolution, she had worked part-time at day care centers, and in other minimum wage positions. At the time of dissolution, she was working at Apple Pre-School, on an as-needed basis, for $6.00 to $6.50 per hour. Ms. Hosack was forty-seven years old. At the time of dissolution, Mr. Hosack was fifty years old and had worked as an economist for the United States Soil Conservation Service for twenty-three and one-half years; he was earning $4,485.86 per month. He had several hours of post-graduate work towards an M.B.A.
The Hosacks had two sons together. At the time of dissolution in 1996, the youngest son was fifteen years old and was in the ninth grade; the oldest son was eighteen years old and was a senior in high school. Mr. Hosack testified that the oldest son was enrolled in and would be attending DeVry Institute of Technology in Kansas City, Missouri, beginning in July of 1997 and that this would cost about $9,000 per year, plus room and board. Mr. Hosack testified that he would voluntarily pay for these costs.
Both parties had health problems. Ms. Hosack suffered from depression and high blood pressure, both of which required medication. In January 1995, Mr. Hosack had an aortic aneurysm which damaged an aortic valve and required several surgeries. Mr. Hosack returned home from the hospital on March 10, 1995. Initially, while convalescing, Mr. Hosack was only allowed to get out of bed for fifteen minutes at a time, and visiting nurses and his wife tended to him. Mr. Hosack's condition continued to improve. By the time of trial, Mr. Hosack was working full-time in his previous position.
Ms. Hosack testified that on June 24, 1995, Mr. Hosack became "violent and threatening" during an argument about her and the boys' plans for a trip to Nebraska to visit her family, and her lack of plans to see his mother while there. Mr. Hosack pushed her against the laundry room door and pinned her there and said "If I were O.J., I would do the same thing to you with no regrets." Ms. Hosack called the police, who suggested that one of the two needed to leave. Ms. Hosack and the children, therefore, took the trip she had been planning and stayed for three weeks instead of one week as originally planned. She testified that prior to planning this trip, her husband's nurses had assured her that Mr. Hosack could take care of himself in her absence, and that he could drive, go to work, and feed himself. Ms. Hosack also testified that Mr. Hosack had been violent in the past, but that she had not called the police on these previous occasions.
On July 14, 1995, Mr. Hosack was removed from the family home in accordance with an ex parte order of protection filed by Ms. Hosack upon her return from her trip. After a hearing, on August 4, 1995, and by consent of both parties, the court entered a full order of protection for 180 days. Mr. Hosack denied the allegations of abuse and testified that, in fact, he was the "abused person." Although Mr. Hosack went to see a counselor after the protective order was entered, he claimed he went because Ms. Hosack had abused him.
On August 8, 1995, Mr. Hosack filed a Petition for Dissolution. On November 5, 1996, the court granted Mr. Hosack's Petition finding the marriage to be irretrievably broken. It awarded custody of the children to Ms. Hosack and ordered Mr. Hosack to pay $859.01 per month in child support. The court expressly adopted Mr. Hosack's Form 14 in making this award. The judge also divided all of the couple's separate and marital property, except $19,277.99 held in Certificates of Deposit (CDs). He failed to rule on Ms. Hosack's request for maintenance. Ms. Hosack filed a motion to set aside judgment, for new trial, or entry of judgment for her. This motion was also denied. This appeal follows.
Our review of a court-tried case, such as this one, is limited, and "the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In a dissolution case, the trial court's determination must be given even greater deference that in other cases. Humphrey v. Humphrey, 888 S.W.2d 342, 345 (Mo.App.1994). We must affirm the trial court's judgment, under any reasonable theory supported by the evidence, unless we are left with a firm belief that the trial court's judgment was incorrect. Guier v. Guier, 918 S.W.2d 940, 946 (Mo.App.1996).
Ms. Hosack asserts that the court below erred in its division of marital property, resulting in an inequitable division of marital property, by: 1) not considering the husband's misconduct during the marriage; 2) not considering the relative disparity of the parties' income and resources; and 3) not dividing $19,277.99 in CDs that her husband acknowledged were in his name.
In dividing the nonmarital property, the court awarded Mr. Hosack the property listed on his Exhibit 14. That exhibit was not included in this record and there was no testimony as to what it listed as the total value of his separate property. We, therefore, have no basis on which to assess the value of his separate property, except to note that the testimony does show that the award included Mr. Hosack's guns, with a stipulated value of $1,850.00. The court awarded Ms. Hosack the household property, which had been appraised by Mr. Hosack's experts at a value of $10,585.00, 1 and which the parties stipulated to as her separate property. The appraised value, however, included the value of the guns. Because Mr. Hosack, rather than Ms. Hosack, was in fact awarded the guns, the value of the household property awarded to Ms. Hosack was, thus, $8,735.00. We are unable to determine how this compares to the non-marital assets awarded to Mr. Hosack, since, as noted, the record does not reveal their value.
We turn to the division of marital property under Section 452.330. 2 The division of marital property does not have to be equal, but it must be "fair and equitable." Whitworth v. Whitworth, 806 S.W.2d 145, 150 (Mo.App.1991), citing D'Aquila v. D'Aquila, 715 S.W.2d 318, 320 (Mo.App.1986). In dividing the marital property, the court found that Mr. Hosack's civil service retirement system benefits had a value of $231,711.00. It...
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