Judy v. Judy, WD55841
| Decision Date | 01 June 1999 |
| Docket Number | WD55841 |
| Citation | 998 S.W.2d 45 |
| Parties | This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Carol Jean Judy, Appellant, v. Gregory Terry Judy, Respondent. WD55841 Missouri Court of Appeals Western District 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Boone County, Hon. Sanford Conley, IV
Counsel for Appellant: Edward W. Brandecker, Jr.
Opinion Summary: The circuit court dissolved the parties marriage. Wife appealed.
Court holds: 1. The judgment should be modified to specify that the maintenance award is modifiable.
2. The trial court did not abuse its discretion in limiting the duration of maintenance.
3. The trial court did not abuse its discretion in the amount of maintenance awarded.
4. The trial court did not err in not including in the marital property division the spent funds from the joint bank accounts, and from the sale of cattle.
5. The judgment should be modified to exclude the award of the Ford Tempo to Wife.
6. The trial court did not abuse its discretion in failing to award attorney's fees.
This appeal is from a judgment of dissolution of marriage. Appellant wife claims that the trial court erred in (1) failing to state whether the maintenance order was modifiable or nonmodifiable; (2) limiting maintenance to $200 per month for 18 months; (3) not distributing all of the parties' marital property; (4) including in wife's share of marital property, a car which was not owned by either party, and (5) not awarding attorney's fees to wife.
Appellant Wife and Respondent Husband were previously married and divorced, remarried on May 24, 1987, and separated June, 1996. Wife filed for divorce after Husband obtained an ex parte restraining order against her. No children were born of either marriage.
During the marriage, the couple lived in Clark, Missouri. Husband worked full-time at A.B. Chance. He also worked on, and maintained both a 60-acre tract where their house is located, and a 130-acre tract they owned near there. Every morning, Husband got up at five in the morning and got the chores done in the dark, then would come back to get ready for work, where he had to be by eight. He often had farm work to do when he returned from work also. The farm lost money each year, but Husband hoped to turn it around, as the land was important to him. From 1989 until 1995, Wife worked both full-time and part-time at A.B. Chance as a literature inquiry clerk and as a photo lab assistant. She has also worked at Casey's, for the City of Columbia, and the University of Missouri. Wife is also a licensed cosmetologist. There was evidence of her good work performance at A.B. Chance. There was conflicting evidence concerning Wife's employment since the separation. Wife claims she is unable to work, and has not worked in three or four years, and Husband testified that she was working as a secretary at McBee Agri Supply.
Wife suffers from severe depression, or possibly a bi-polar disease, mixed manic or hypomanic. There was also evidence by Wife's witness that she may also suffer from vertigo. Her condition has required hospitalization, and at the time of trial she was on medication to control her illness. She currently receives social security disability of $331 per month for her mental illness. Wife claimed she is unable to work, and is unlikely to improve. However, there was conflicting testimony that employment may be therapeutic for her. She claims that her condition is severe enough to preclude her from finding employment, because any job she could do would need to be limited in hours and flexible. There was, however, evidence that she may tend to exaggerate her symptoms. The trial court specifically stated its finding that Wife is capable of employment.
Husband testified that throughout the ten years of the second marriage, he did not notice any signs of mental problems. The evidence showed she was a very good housekeeper, worked several different jobs, and as a licensed cosmetologist, she gave haircuts and permanents to people from the community. During the marriage, her son, from a previous marriage to another man, came to live with them in their one bedroom home, when he came home from the service. This arrangement caused problems between the couple, so Husband bought a trailer for the son, and set it up for him, putting in the driveway, sewer, and dug the lines. Husband paid for everything and deeded an acre of land to the son, none of which has ever been repaid. Husband still makes payments on the trailer, as it is part of his mortgage, although the son sold the land and used the money to buy a house.
Towards the end of the marriage, Wife began to be more abusive and threatening toward Husband. She was in a state of depression for a few months, started coming out of it, but then went in to a manic phase. There was testimony that the manic phase may have been brought on by conflicting medications. Wife was arrested for hitting her mom and her niece, and Husband bailed her out. She also directed anger at her husband. When he bailed her out, she told him that she was going to divorce him. Finally, Husband sought and obtained an ex parte order against her.
The trial court divided the marital property. The marital property included, among other things, land, the home, vehicles and equipment, personal property, retirement funds, stock and mutual funds, and bank accounts. The trial court divided the marital property as follows:
Awarded to Husband Equity
__________________________
Tract #1- Home and 60 acres $64,000
Tract #2- 130 acres $71,500
Debt on tracts #1 and #2 (52,184)
1989 Toyota Pickup $3,000
Four Wheeler $500
Bailer, Raker, Mower $1,000
Household Goods $1,860
401K $16,390
Bank Accounts $600
Hospital Bill (rotator cuff) ($ 1,894)
Half of Dr. Bill of Wife ($ 716)
___________________________________
Total $104,056
Awarded to Wife Equity
___________________________
Euro Pacific Growth Fund $10,059
Wal-Mart Stock $7,988
ICA Fund $47,008
Pioneer Fund $18,408
1986 Toyota Pickup $1,000
1990 Ford Tempo $4,000
Household Goods $1,825
Individual Retirement Acct. $17,884
Half of her Dr. Bill ($716)
Hospital bill- Wife ($ 1,894)
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The court found that the income producing assets set apart to Wife should produce in excess of $500 per month. The court also awarded Wife temporary maintenance of $200 per month, for 18 months.
The judgment must be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declared or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). A reviewing court in a court tried case must "view the evidence and permissible inferences most favorably to the decree and disregard all contrary evidence and inferences," and "[w]here the trial court made no specific finding of fact, we consider that fact found in accordance with the result reached." Liberty v. Liberty, 826 S.W.2d 381, 383 (Mo. App. 1992)(citations omitted).
The trial court ordered periodic temporary maintenance for 18 months, and did not state whether or not it was modifiable. In her first point on appeal, Wife contends that the trial court's failure to specify was in error. This court agrees.
According to section 452.335.3, RSMo 1994, "[t]he maintenance order shall state if it is modifiable or nonmodifiable." (emphasis added). "When the decree is silent as to whether maintenance is modifiable or nonmodifiable, if the award of maintenance was based upon need, it is presumed to be modifiable." Sprouse v. Sprouse, 969 S.W.2d 836, 838 (Mo. App. W.D. 1998). In the present case, the court stated in it's decree that Wife "is capable of employment and...is awarded $200 per month for eighteen months rehabilitative maintenance. In Harris v. Harris, 784 S.W.2d 630, 631 (Mo. App. 1990), the court found the maintenance award to be based on need, and that it should be modifiable due to the age of the wife, and "considering the uncertainty surrounding future events."
In the present case, the trial court failed to include the specification of whether maintenance was modifiable or nonmodifiable. Due to the court's silence on this matter, and because maintenance in this case was based upon need, and therefore presumed to be modifiable, the judgment is modified by specifying that the award of maintenance shall be modifiable.
Wife contends that the trial court erred in limiting maintenance to 18 months because there was no evidence that she will then be capable of supporting herself or that her economic prospects will have improved. It is Wife's contention, that because of her mental illness and vertigo, she will need to be hospitalized on an unpredictable basis and any job she had would have to be very flexible and require few hours.
Section 452.335.1, as relevant here, allows the trial court to grant maintenance if a spouse lacks sufficient property to provide for his or her reasonable needs and is unable to support themselves through appropriate employment. Section 452.335.2 prescribes the amount and period of time for maintenance after considering ten enumerated factors, including: (1) the financial resources of the party seeking maintenance; and (7) the physical and emotional condition of the spouse seeking maintenance.
The award of maintenance is within the sole discretion of the trial court, and will not be disturbed absent an abuse of discretion. Sola v. Bidwell, 980 S.W.2d 60, 67 (Mo. App. W.D. 1998); Harris, 784 S.W.2d at 630. "The burden is on the party contesting maintenance to prove that the award of maintenance shocks the appellate court's sense of justice." Sola, 980 S.W.2d at 67. The evidence is viewed in the light favorable to the decree, "disregarding evidence to the contrary and deferring to the...
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