Keller v. Keller

• Decision Date: 31 May 2000
• Citation: 18 S.W.3d 589
• Parties: (Mo.App. W.D. 2000) Kathy K. Keller, Appellant, v. John B. Keller, II, Respondent. WD56970 0
• Court: Missouri Court of Appeals

18 S.W.3d 589 (Mo.App. W.D. 2000)

Kathy K. Keller, Appellant, v. John B. Keller, II, Respondent.

WD56970

Missouri Court of Appeals Western District

05/31/2000

Appeal From: Circuit Court of Cole County, Hon. Patricia S. Joyce

Counsel for Appellant: Robert E. Harris

Counsel for Respondent: Douglas Van Camp

Opinion Summary: Kathy K. Keller appeals the circuit court judgment dissolving her marriage to John B. Keller, II, with respect to maintenance and child support; the division of marital property; and its order concerning future awards of attorney's fees in any proceeding to enforce or clarify the court's judgment.

Division Four holds: (1) The trial court erred in awarding non-modifiable maintenance of a limited duration. Maintenance awards of limited duration are justified only where substantial evidence exists of an impending change in the parties' financial condition, and such evidence does not exist in this case.

(2) Ms. Keller's claim that the trial court erred in including the monthly maintenance payment to her in its child support calculation because the maintenance awarded by the court was of a limited duration and would terminate prior to the child support award is rendered moot by this court's finding that the maintenance award should be made permanent and modifiable.

(3) The trial court did not err in excluding Ms. Keller's work-related child care costs in its Form 14 child support calculation. Because the trial court did not include in its calculation any of Ms. Keller's earned or imputed income, the court was correct, under the Form 14 directions and comments, in not including any amount for her work-related child care costs.

(4) The trial court erred in not including in its Form 14 calculation an amount for uninsured extraordinary medical expenses of the parties' minor son. The evidence established that their son's medical expenses due to his autism, asthma, and allergies were reasonable, necessary, predictable, and recurring; therefore, their inclusion in the court's Form 14 was mandatory.

(5) The trial court did not err in dividing the parties' marital property by incorrectly relying on the "source of funds" rule in its division. While the record indicates that the trial court did consider each party's contribution in acquiring the marital property in its division and, in effect, traced the source of its acquisition as would be done in classifying property under the "source of funds" rule, this is permitted under section 452.330, RSMo Cum. Supp. 1999. Ms. Keller does not demonstrate that the trial court failed to consider all of the factors in section 452.330, RSMo Cum. Supp. 1999, or that it unduly relied on one of the factors to the exclusion of others in dividing the marital property.

(6) The trial court erred in ordering that any future awards of attorney's fees incurred in any proceeding to enforce or clarify the court's judgment were to be contingent upon whether the party seeking such an award had prevailed in the proceeding and had given the notice prescribed by the court. The limitations are contrary to section 452.355, RSMo Cum. Supp. 1999, which governs awards of attorney's fees in such cases.

PER CURIAM

Kathy K. Keller appeals the judgment of the circuit court dissolving her marriage to the respondent, John B. Keller, II, with respect to the court's awards to her of maintenance and child support; the division of marital property; and its order concerning future awards of attorney's fees incurred in any proceeding to enforce or clarify the court's judgment.

The appellant raises six points on appeal. In Point I, she claims that the trial court erred in awarding non-modifiable maintenance of a limited duration because such an award was not supported by the evidence. In Point II, she claims that the trial court erred in including the monthly maintenance payment to the appellant in its Form 14 calculation of the presumed child support amount, on which it based its child support award, because the maintenance awarded by the court was of a limited duration and would terminate prior to the termination of the award of child support. In Point III, she claims that the trial court erred in not including in its Form 14 calculation an amount for the work-related child care costs of the appellant because in doing so it erroneously declared and applied the law as found in the applicable provisions of the "Directions, Comments for Use and Examples for Completion of Form 14" (Form 14 directions and comments). In Point IV, she claims that the trial court erred in not including in its Form 14 calculation an amount for uninsured extraordinary medical expenses of the parties' minor son, John, because in doing so it erroneously declared and applied the law as found in the applicable provisions of the Form 14 directions and comments. In Point V, she claims the trial court erred in dividing the marital property because in doing so it erroneously declared and applied law concerning the "source of funds" rule. In Point VI, the appellant claims that the trial court erred in ordering that future awards of attorney's fees, under section 452.355, RSMo. Cum. Supp. 1999,² incurred in any proceeding to enforce or clarify the court's judgment were to be contingent on whether the party seeking such an award had prevailed in the proceeding and had given the notice prescribed by the court because in doing so it erroneously declared and applied the law as found in " 452.355.

We affirm, in part, and reverse and remand, in part.

Factual History

The parties were married on August 5, 1988, in Florennes, Belgium. There were two children born of the marriage: John Bidwell Keller, III, born on September 29, 1992; and Kathianne Kay Keller, born on January 2, 1995. The parties separated on or about October 31, 1997. At the time of their separation, they were residing in Jefferson City, Missouri. On November 7, 1997, the appellant filed a petition for dissolution of marriage in the Circuit Court of Cole County, Missouri. On December 9, 1997, the respondent filed his answer and cross-petition.

The case was heard commencing on January 14, 1999. On February 5, 1999, the trial court entered its judgment, inter alia, dissolving the parties' marriage and dividing their property. In the court's decree, the parties were awarded joint legal custody of the children, with primary physical custody to the appellant and specific visitation with the children to the respondent. The court ordered the respondent to pay monthly child support to the appellant in the amount of $900, as well as non-modifiable maintenance to the appellant for a period of eighteen months in the amount of $500.

This appeal followed.

Standard of Review

A provision in a divorce decree will be affirmed unless: (1) there is no substantial evidence to support it; (2) it is against the weight of the evidence; or (3) it erroneously declared or applied the law. Hoffman v. Hoffman, 676 S.W.2d 817, 822 (Mo. banc 1984); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Woolridge v. Woolridge, 915 S.W.2d 372, 375 (Mo. App. 1996). "The party challenging a divorce decree bears the burden of demonstrating error." Woolridge, 915 S.W.2d at 375.

The trial court has broad discretion in ordering maintenance and child support. Allen v. Allen, 961 S.W.2d 891, 893 (Mo. App. 1998). In reviewing such awards for an abuse of discretion, we are required to view the evidence in a light favorable to the decree, "'disregarding evidence to the contrary and deferring to the trial court even if the evidence could support a different conclusion.'" Id. (quoting Allen v. Allen, 927 S.W.2d 881, 885 (Mo. App. 1996)).

"The trial court has considerable discretion in dividing marital property." Holt v. Holt, 976 S.W.2d 25, 27 (Mo. App. 1998). We will not reverse the court's decision unless we find that the division is "so heavily weighted in favor of one party as to amount to an abuse of discretion." Id.

No Substantial Evidence To Support Maintenance

Of Limited Duration

In Point I, the appellant claims that the trial court erred in awarding non-modifiable maintenance of a limited duration because such an award was not supported by the evidence. In its decree, the trial court ordered that the respondent pay non-modifiable maintenance to the appellant in the amount of $500 per month for eighteen months with the first payment due on February 1, 1999. On appeal, neither party challenges the appellant's entitlement to maintenance or the amount of the award for each month. What is being challenged by the appellant is the fact that the award is for a limited time only and whether the limitation on the award was supported by the evidence.

Section 452.335.2, RSMo 1994, governs awards of maintenance and provides, in pertinent part, that such awards

"shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:

(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;

(2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;

(3) The comparative earning capacity of each spouse;

(4) The standard of living established during the marriage;

(5) The obligations and assets, including the marital property apportioned to him and the separate property of each party;

(6) The duration of the marriage;

(7) The age, and the physical and emotional condition of the spouse seeking maintenance;

(8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;

(9) The conduct of the parties during the marriage; and

(10) Any other relevant factors.

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