Johnson v. Johnson, 52326
| Decision Date | 19 January 1988 |
| Docket Number | No. 52326,52326 |
| Citation | 743 S.W.2d 595 |
| Parties | In re the Marriage of Roxann JOHNSON, Petitioner-Appellant, v. Donald JOHNSON, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Susan M. Hais, Clayton, for petitioner-appellant.
John A. Schneider, Hillsboro, for respondent-respondent.
Wife appeals after the trial court dissolved the parties' marriage. We affirm in part and reverse and remand in part.
The parties were married in Jefferson County, Missouri, on January 22, 1973. At that time, husband was a member of the United States Army. He remained in the Army throughout the marriage and at the time of the dissolution. One child, a daughter, was born of the marriage on April 13, 1975.
In dissolving the marriage on September 9, 1986, the court found the parties' "Separation Agreement is not a conscionable agreement" and stated that it would not enforce it. However, in accordance with the agreement, the court distributed the marital property, awarded custody of the daughter to wife, and ordered husband to pay child support of $375.00 per month. Although the parties had agreed that husband would pay wife maintenance of $475.00 a month, the court ordered him to pay maintenance of only $250.00 a month for 36 months.
In the separation agreement the parties also had agreed "to divide equally any and all property rights that husband may have or acquire, now or in the future, to any military retirement/pension which the husband has or may acquire in the future." Although the agreement was admitted into evidence, there was no other evidence at trial concerning the existence or value of a pension. Nevertheless, the court awarded wife "such rights as granted by U.S Government to [husband's] pension rights...." Subsequent to the entry of the judgment, husband filed a motion to amend the judgment alleging
[Husband] believes both the Court and both attorneys were unaware of the provisions of 10 U.S.C. Section 1408, which authorizes division of military pension to a divorcing spouse within the discretion of the trial court.
....
Since [husband] believes it was the Court's position that [wife] would receive only such part of the pension as is mandated by Federal law, and since no part of it is required to be divided to the divorcing wife under Federal law, the judgment is ambiguous and incomplete.
Wherefore, [husband] prays the Court amend the judgment specifically awarding [husband] 100% of his military pension and [wife] 0%....
The parties dispute whether a hearing was held on husband's motion to amend; there is nothing in the record to indicate a hearing was held. On September 18, 1986, the court entered the following order:
On appeal wife alleges the court erred in finding the separation agreement to be unconscionable, in awarding 100% of the military pension to husband, and in awarding only limited maintenance.
The evidence relevant to the issues raised by wife was that husband had been in the Army for almost 14 years and was a sergeant first-class at the time of dissolution. In February 1985, husband was assigned to Ft. Riley, Kansas, where he and wife resided in a mobile home they jointly owned. In April 1985, wife told husband that she desired a separation. At husband's suggestion they went to a legal assistance officer at Ft. Riley. Both parties were aware that the legal advisor represented wife. The legal advisor drafted a separation agreement which provided for wife to have custody of the daughter and for husband to pay child support of $375.00 a month and maintenance of $475.00 a month. The parties also agreed that wife was to receive the mobile home and a 1984 Chevrolet pickup truck and that she was responsible for the indebtedness on each. According to the evidence at trial, the mobile home was valued at $9,000.00 to $10,000.00, and $29,000.00 was owed on it. The pickup truck was valued at $4,500.00 with $6,680.00 owed on it. 1 Under the agreement husband was to pay all other debts. From the record it appears the other debts totaled less than $10,000.00. There was some other personal property involved but it appears to have been of insignificant value.
According to husband's income and expense statement in evidence at trial, his gross wages were $2,051.68 a month and his net monthly pay was $1,767.15. His pay included various benefits he received because he was married; he testified he would lose some of those benefits after the dissolution. His total average monthly expenses of $1,931.32 2 included the $375.00 a month child support, the $475.00 a month maintenance, and about $450.00 a month to make installment loan payments.
During the marriage wife had been sporadically employed at various discount stores, never earning more than $4.00 an hour. During periods of unemployment she was able to earn $30.00 to $40.00 a week babysitting. She also had received unemployment compensation for about six months. Her net earnings in 1985 were $1,100.00. At the time of trial wife was working at a Wal-Mart store in Texas 30 hours a week at a rate of $3.90 an hour. She was not guaranteed a minimum number of hours of work. According to wife's income and expense statement, her monthly expenses were $1,453.97, exclusive of specified expenses for the daughter.
The separation agreement was entered into evidence without objection from husband; however, he testified he had signed it "out of love for her." He said wife told him she needed the money to live in Texas "while she was thinking over the problems." He said he believed "she was going to get her problems solved and come back."
Wife offered into evidence a letter from husband that she summarized as saying "I could have my divorce with the agreements that we had made in the separation agreement." Husband said it was an agreement that "I would not fight her on a divorce if she held to her promise that she was going to take time after this and actually give our marriage a chance to work out." He said that because she had not come back, he did not feel she should receive maintenance from him. Nevertheless, husband did testify that wife had been a good spouse and he did not accuse her of any misconduct.
Upon review of a court-tried case, we will affirm the judgment of the trial court...
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Tillock v. Tillock, 64172
...the date of the decree. See, e.g., In re Marriage of Thomas, 829 S.W.2d 491 (Mo.App.1992); Howard, 764 S.W.2d at 169; Johnson v. Johnson, 743 S.W.2d 595 (Mo.App.1988). Moreover, there was no evidence that husband expected a substantial decrease in his income after one year. We therefore hol......