Isakson v. Isakson

• Decision Date: 06 February 2009
• Docket Number: No. SD 28977.,SD 28977.
• Citation: 277 S.W.3d 784
• Parties: Timothy R. ISAKSON, Appellant, v. Tracie L. ISAKSON, Respondent.
• Court: Missouri Court of Appeals

277 S.W.3d 784

Timothy R. ISAKSON, Appellant, v. Tracie L. ISAKSON, Respondent.

No. SD 28977.

Missouri Court of Appeals, Southern District, Division One.

February 6, 2009.

Petition for Rehearing or Reconsideration and Transfer Denied March 2, 2009.

Application for Transfer Denied March 31, 2009.

Edward C. Clausen, Jason H. Ludwig, Carson & Coil, P.C., Jefferson City, for Appellant.

Stephan F. Gaunt, Steelman, Gaunt & Horsefield, Rolla, for Respondent.

DANIEL E. SCOTT, Presiding Judge.

The marriage of Tim and Tracie Isakson (hereinafter "Husband" and "Wife") was dissolved after 17 years. Husband attended medical school early in the marriage and is a physician with a lucrative income. Wife was a stay-at-home mom for most of the marriage at Husband's request. During the period of separation, Husband rarely visited his three children, and engaged in misconduct by diverting marital assets and incurring enormous debt for gifts and trips for his paramours. Husband raises numerous points on appeal.

We will affirm a dissolution decree 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. In re Marriage of Taylor, 244 S.W.3d 804, 808 (Mo.App.2008).

Statutory Findings (Point I)

Husband attacks the adequacy of statutorily required findings as to child custody. See § 452.375.¹ He claims the judgment did not relate its findings to the statutory factors, or make findings on all such factors, and argues therefrom that "meaningful appellate review of custody issues is made nearly impossible."

Relocation (Point II) is the only custody issue raised by Husband, and we find the judgment adequate for meaningful appellate review thereof. The findings mandated by § 452.375.6 "`need not mechanically discuss all eight factors listed in section 452.375.2, [but] must discuss the relevant factors in such a manner that meaningful appellate review is possible.'" Strobel v. Strobel, 219 S.W.3d 295, 299 (Mo.App.2007) (quoting Alberswerth v. Alberswerth, 184 S.W.3d 81, 91 (Mo.App.2006)). We deny Point I, again quoting Strobel (219 S.W.3d at 300):

Rule 84.13(b) provides: "No appellate court shall reverse any judgment unless it finds that error was committed by the trial court materially affecting the merits of the action." The judgment here permits us to engage in meaningful review. The findings made support the judgment entered, and any deficiencies therein are not material to the merits of this action.

Relocation (Point II)

Husband claims the trial court "erred in ordering that Tracie and the children be allowed to relocate to Nixa." In disputing the evidentiary basis for "said order" and whether relocation is in the children's best interests, Husband blurs the distinction between initial custody determinations and custody modifications.

Section 452.377.9, which requires proof that relocation is in a child's best interest, governs modification of existing custody arrangements. Day ex rel. Finnern v. Day, 256 S.W.3d 600, 603 (Mo.App.2008). This was an initial custody determination, wherein Wife's intent to relocate was only one factor for the trial court to consider (§ 452.375.2(7)), and which it plainly did. Noting Husband's failure to spend time with the children, Wife's request for permission to relocate, and Nixa's "excellent" education opportunities, the court found that relocation was in the children's best interest and Husband would not lose parenting time thereby. The trial court properly considered Wife's proposed relocation in determining custody, and its ruling is supported by substantial evidence. Point II is denied.

College Expenses (Point III)

The judgment provided, in part, that:

Husband shall pay 100% of the cost of Wife's fees, tuition and books to attain a bachelor's and master's degree up to the cost then in effect at Missouri State University in Springfield, Missouri. Husband shall pay such costs within ten (10) days of submission of a bill for same to him by Wife.

Husband contends the trial court lacked authority to enter such an order. He also claims the order is vague and unenforceable.

If such an order is to be upheld, it must be as rehabilitative maintenance,² as Wife now argues that it is. Yet the judgment did not denominate this obligation as maintenance, or state whether it was subject to future modification. A maintenance award "shall state if it is modifiable or nonmodifiable." § 452.335.3. Failure to do so is reversible error. In re Marriage of Goodin, 5 S.W.3d 213, 219 (Mo.App.1999).

Moreover, rehabilitative or limited maintenance is awarded where substantial evidence demonstrates an impending change in the recipient's financial position, or a reasonable likelihood such change will occur. See Knigge v. Knigge, 903 S.W.2d 225, 226 (Mo.App.1995); Clark v. Clark, 801 S.W.2d 95, 97-98 (Mo.App.1990). This may occur, "for instance, where one spouse is pursuing additional training or education which will markedly change that person's earning capacity, and a known time frame exists for completion of that training or education." Knigge, 903 S.W.2d at 226. Rehabilitative maintenance routinely is limited to a time period — our research has found no case otherwise — since implicit in such an award is that the recipient "will be self-supporting at the end of the time period." Clark, 801 S.W.2d at 97.

Wife, age 45 at trial, essentially has a high school education. Under her evidence, she would need six years of full-time study for bachelor's and master's degrees. She made it clear, however, that her first priority is raising her children. She indicated only that she plans "to maybe go part-time to start with." She suggested no schedule or timeframe to pursue her education. She could not say when she would be able to earn an income with her degrees, or how much she might earn. There was no evidence that Wife would start or finish her education within any specified time period, or that she felt obliged to do so, and the judgment sets no timetable therefor and no requirement of satisfactory progress. The order, as currently worded, is too vague and indefinite to be upheld under existing rehabilitative maintenance case law.

Thus, while the trial court did not lack authority to enter such an order, these provisions are unenforceable as framed. We reverse that part of the judgment relating to payment of Wife's college expenses and remand for further proceedings and entry of an amended judgment in this regard, consistent with this opinion and applicable law.

Spring Creek Property (Point IV)

Husband claims the trial court erred in ordering him to make mortgage payments on some 40 acres "in Spring Creek" until it is sold, and in not attaching any conditions to the sale of the property.

A trial court has broad discretion in dividing marital debts and determining how they will be paid, which we will not disturb absent a clear abuse of discretion. See Rivers v. Rivers, 21 S.W.3d 117, 122 (Mo.App.2000); In re Marriage of Myers, 845 S.W.2d 621, 626 (Mo.App.1992). Husband complains that he must pay the mortgage after dissolution, with no offset for such payments when the property is sold. Other cases have upheld such orders. See, e.g., Rivers, 21 S.W.3d at 122-23; Ansley v. Ansley, 15 S.W.3d 28, 34 (Mo.App.2000). There was no abuse of discretion in this regard.

Still, we must remand for inclusion of a complete legal description of this and any other real estate awarded in the decree. In re Marriage of Tanner, 245 S.W.3d 922, 923 (Mo.App.2008). The trial court also should clarify its order for sale in appropriately enforceable terms³ and determine if a sale deadline is appropriate in light of this court's recent opinion in Bussen v. Bussen, 273 S.W.3d 90 (Mo.App.2008).

Double Charges (Points VI & VII)⁴

The judgment orders Husband to pay Wife $20,000 for marital funds diverted to other women and for property equalization. Husband attributes...