Johnson v. Johnson, WD

• Decision Date: 29 May 1984
• Docket Number: No. WD,WD
• Citation: 671 S.W.2d 426
• Parties: Norma Ruth JOHNSON, Respondent, v. Billy Wayne JOHNSON, Appellant. 34443.
• Court: Missouri Court of Appeals

Page 426

671 S.W.2d 426

Norma Ruth JOHNSON, Respondent, v. Billy Wayne JOHNSON, Appellant.

No. WD 34443.

Missouri Court of Appeals Western District.

May 29, 1984.

George E. Kapke, Independence, for appellant; Cochran, Kramer, Kapke & Willerth, Independence, of counsel.

John W. Dennis, Jr. and James T. Cook, Independence, for respondent; Paden, Welch, Martin, Albano & Graeff, Independence, of counsel.

Before PRITCHARD, P.J., and MANFORD and NUGENT, JJ.

PRITCHARD, Presiding Judge.

In this dissolution of marriage proceedings, two issues are presented: (1) Whether the trial court erred in allowing respondent maintenance; and (2) whether the trial court erred in awarding respondent one-third of the present value of the husband's pension plan with Armco, Inc.

The parties were married on July 10, 1958, and separated on November 3, 1981. No children were born of the marriage, but each of them had two children born during their previous marriages. Respondent was 51 years of age at the time of trial. She had only an 8th grade education, and no special training or skills for employment. She had worked at Neevel Manufacturing Company, a luggage manufacturer, as a bender from about 1965 to 1972, at which time she had to quit because of injuries incurred in an automobile accident, for which she received a $10,000 settlement which was deposited in the parties' credit union account and which was set off to respondent on the division of the property. The last place respondent worked was a nursing home for about two months prior to January, 1982, but she had not worked since because of an arthritic condition of her shoulder, arm and hand which affects her ability to lift. In addition to the arthritic condition, respondent described her other physical ailments as being stomach problems which resulted from beatings. (The record is replete with evidence of appellant's physical abuse administered to respondent during the marriage.) She has had two hernia operations. She still has low right side back pain from the 1972 automobile accident. She was hospitalized at M.C.I. for two weeks and at St. Luke's Hospital for two weeks, and she was under a doctor's care at the time of trial, August 24, 1982, at which time she testified that she was physically unable to work. She had filed two applications for social security benefits which were denied, apparently upon the basis of a finding that she was able to work.

Plaintiff's Exhibit 9, respondent's statement of marital and non-marital property and income and expenses, was admitted into evidence without objection. It shows her gross income on the last year's tax return to have been $321.67, and her expenses to have been $742.00 per month, testified by her to have been accurate at the time of trial. She did estimate some expenses such as future rent, $150 per month, which seems to be very reasonable. The $742.00 per month figure did not include future costs of hospitalization and medical insurance costs.

Appellant was 51 years of age at the time of trial, employed at Armco, Inc., and had been since 1954. The trial court found that his earnings were about $1,750 per month, and awarded respondent $300 per month maintenance. Appellant contends that there was no substantial evidence of her needs, and that the evidence shows that she was capable of reasonable employment, and with that employment and the portion of marital property distributed to her, she would be able adequately to meet her anticipated needs.

The trial court found that respondent "is not presently employed and is only capable to part-time minimal employment." Certainly respondent's testimony, which could be considered by the court as true, is substantial that she was not able to be employed sufficiently to provide for her needs. She was 51 years of age, had no extensive education or any special skills, and certainly, as the trial court could believe [In re Marriage of Jackson, 592 S.W.2d 875, 877 (Mo.App.1980) ], she had physical problems which would detract from her ability to be full-time employed. The fact that she was turned down for social security disability benefits is not conclusive on the issue. Appellant himself testified that respondent had several problems, so much that it was hard to keep up with. He attributed her arthritis to the 1972 accident, since that time she had not really been the same. He admitted that his deposition testimony that "I knew she needed money to get by on. She wasn't able to work or hold a job" was true when given.

Appellant argues that the trial court made no finding regarding respondent's reasonable needs but the record shows that neither party made a request for specific findings, and thus the facts are to be assumed to have been found in accordance with the result reached. In re Marriage of Brewer, 592 S.W.2d 529, 533 (Mo.App.1979); Stamme v. Stamme, 589 S.W.2d 50, 53 (Mo.App.1979). The recitation of the decree as to employability, above, reaches that result. Compare Moseley v. Moseley, 642 S.W.2d 953, 958 (Mo.App.1982), a case where the wife had no special skills, a poor job history, and had severe physical and emotional problems.

Although it is true that respondent may have extra investment income from liquid marital property set off to her, possibly around $300.00 per month, that does not require an interference with the maintenance award. It should be noted that the trial court did not allow respondent an award for any attorney fees. She had paid prior to trial $250 in attorney's fees, there were $1,795 incurred by her to the time of...