Howard v. Howard, 40079
| Decision Date | 22 May 1979 |
| Docket Number | No. 40079,40079 |
| Citation | 583 S.W.2d 553 |
| Parties | In re Marriage of William HOWARD, Petitioner-Appellant, v. Zeola HOWARD, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Robert M. Susman, Susman & Susman, St. Louis, for petitioner-appellant.
Charles J. McMullin, St. Louis, for respondent-respondent.
The husband appeals from an order of the Circuit Court of the City of St. Louis denying a motion to convert a decree of legal separation to a decree of dissolution. The specific issue presented is whether the trial court properly exercised its discretion in denying the motion on the ground that dissolution would terminate health, welfare, life insurance and pension benefits furnished the wife by the husband's union and employer. This issue naturally raises the broader question, one of first impression, of what standards should guide a trial court in exercise of its discretion in passing upon motion to convert a decree of legal separation to a decree of dissolution of marriage.
The judgment is affirmed in part, reversed in part, and remanded with instructions.
The parties were married in 1943 or 1945 in Columbus, Mississippi. They separated in 1964 and have lived since that time in separate residences. In April of 1974 the husband filed a petition for dissolution, alleging the separation and irretrievable breakdown. In her amended answer, cross-bill and counterclaim the wife denied irretrievable breakdown and requested separate maintenance and legal separation. After a trial of the issues, a decree of legal separation was entered on December 20, 1976. Maintenance, support and custody orders were made and the parties' property divided. The husband was also ordered "to retain and keep in full force and effect all employee's and union member's medical, hospital, pension, welfare, benefit programs and insurance plans and specifically name respondent as beneficiary thereof within 20 days of the date of this decree and he is to retain, maintain and continue in force all life insurance policies, and name therein respondent as said owner and beneficiary thereof within 20 days of the date of the decree."
On May 12, 1977 the husband filed a motion to convert the decree of legal separation into a decree of dissolution, alleging he and his wife had not communicated with each other since the granting of the legal separation and had made no attempt to reconcile their differences and preserve their marriage. A hearing was held on this motion on July 22, 1977 and the husband presented evidence showing no efforts at reconciliation since the decree had been granted. In response, the wife stated her opinion that the marriage was not irretrievably broken. No expert testimony or competent documentary evidence on the issue of health, welfare and insurance benefits was produced. The wife testified the husband had told her dissolution would cut off all her benefits. The wife's counsel also read into evidence the husband's answer to an interrogatory which stated that the husband's counsel believed dissolution would terminate the wife's eligibility for the benefits. The answer also outlined the benefits provided by the employer and union. The wife had continued to receive medical benefits after the decree of legal separation was issued, but it was not absolutely clear that legal separation would not reduce her benefits in some way.
Further testimony on the wife's health, income and use of the available health benefits was heard on October 7, 1977. On January 16, 1978 the trial court entered judgment denying the motion to convert the decree of legal separation into a decree of dissolution. In its memorandum opinion the court found the wife was in poor health, of limited financial means and in "direct, immediate and continuing need of the benefits secured to her in the present Decree of Legal Separation." This appeal followed.
Section 452.360.3, RSMo Cum.Supp.1975, the statutory section to be construed here, provides:
The legislature, in enacting the legal separation sections of the Dissolution Act, took a different position than the drafters of the Uniform Marriage and Divorce Act. Section 302(b) of the Uniform Marriage and Divorce Act (9 ULA Matr., Fam., & Health Laws (1973)) provides: Missouri chose to delete the emphasized phrase and provide, instead, a mandatory legal separation at one party's request (Section 452.305.2; McRoberts v. McRoberts, 555 S.W.2d 682 (Mo.App.1977)) and a mechanism for converting the legal separation into a decree of dissolution (Section 452.360.3).
By choosing this plan and selecting the word "may" in § 452.360.3, the legislature intended to place the decision to convert the legal separation in the sound discretion of the trial court. See, Bloom v. Missouri Board for Architects P.E. & L.S., 474 S.W.2d 861 (Mo.App.1971). It is clear, however, that the trial court's exercise of that discretion must be guided by the legislative intent evidenced by the other language of the section and the general philosophy of the act.
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