Kessler v. Kessler, 50597
| Decision Date | 04 November 1986 |
| Docket Number | No. 50597,50597 |
| Citation | 719 S.W.2d 138 |
| Parties | June L. KESSLER, Respondent, v. Robert M. KESSLER, Appellant. |
| Court | Missouri Court of Appeals |
Timothy H. Battern, St. Louis, for appellant.
Gerald J. Harvath, Pacific, for respondent.
Husband appeals from the decree dissolving his thirty-three year marriage to wife. He challenges the award of maintenance to wife and the division of marital property. The judgment of the trial court is modified and, as modified, affirmed.
The standard of review of this appeal is set forth in the often-quoted case of Murphy v. Carron, 536 S.W.2d 30, 32 [1-3] (Mo. banc 1976). The judgment must be affirmed unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Id. at 32.
Neither party requested findings of fact or conclusions of law and none were entered by the court. When the court does not provide specific findings on fact issues or conclusions of law, all findings of fact are presumed determined in accordance with the result reached by the trial court. Rule 73.01; Mastin v. Mastin, 709 S.W.2d 545, 548 (Mo.App.1986). The judgment of the trial court is to be upheld under any reasonable theory presented and supported by the evidence. McKnight v. McKnight, 638 S.W.2d 789, 790 (Mo.App.1982).
Husband's point relied on which challenges the division of the marital property is summarily denied. The trial court in a dissolution action is not required to make an equal division of the marital property, only an equitable one. Golleher v. Golleher, 697 S.W.2d 547, 551 (Mo.App.1985). No error of law appears and an extended discussion of this issue would have no precedential value. Rule 84.16(b).
Husband's other points relied on challenge the propriety of the maintenance award. He claims the trial court erred because it ordered maintenance exceeding wife's demonstrated need, exceeding the amount wife requested, and exceeding its authority to award.
Wife's earnings as a restaurant cashier were approximately $110.00 net weekly, or about $476.00 per month. Her gross annual income has never exceeded $6,000.00 in her eight years on the job and her earnings for the year prior to the trial amounted to a little over $4,000.00.
Husband is employed as a photographic maintenance manager where he earns a monthly net income of $1540.00. He also receives a military pension of $697.00 net per month, making husband's total monthly net income $2,237.00. In 1984 his salary was $45,400.00 gross with an expected annual increase of between 6 and 10%.
Wife asked for monthly maintenance payments of $500.00. She also requested 1/2 of his military pension, the two amounts totalling $848.00. She testified that she would be able to take care of herself if she received those two items in addition to her earnings. The trial court awarded her $550.00 maintenance and 1/3 of husband's military pension, totalling $782.00 monthly.
Husband argues wife offered no evidence of her need for maintenance. He emphasizes an attachment to wife's interrogatory answers where she listed monthly expenses of only $465.00. Husband contends the $550.00 monthly maintenance was erroneously awarded because it exceeded wife's list of expenditures and exceeded the amount that wife had actually requested by $50.00.
The question of maintenance is within the sound discretion of the court and review on appeal is to determine only whether that discretion is abused. McKnight, 638 S.W.2d at 790 . On appeal it is the burden of the party challenging the maintenance award to show that the award was so excessive that it constituted an abuse of the trial court's discretion. In re Marriage of Souter, 700 S.W.2d 545, 547 (Mo.App.1985). Husband has not met that burden.
Husband ignores that wife's statement was filed while wife was living with her sister during the parties' separation and that the statement reflects no allocation for: mortgage payment; utility payments for gas, water, telephone, sewer, or electricity; car insurance, life insurance; health, medical hospitalization,...
To continue reading
Request your trial
-
Marriage of Hunt, In re, s. 20382
...lacks authority to grant retrospective maintenance. In re Marriage of Tappan, 856 S.W.2d 362, 370 (Mo.App.1993); Kessler v. Kessler, 719 S.W.2d 138, 140 (Mo.App.1986). Section 452.335, RSMo 1994, authorizes the granting of maintenance "following dissolution of marriage." Whether the statute......
-
McKee v. McKee, 20839
...support statute, § 452.340. 1988 Mo.Laws, H.B. Nos. 1272, 1273, and 1274, pp. 951-67. C.M.D. was decided in 1986, as was Kessler v. Kessler, 719 S.W.2d 138 (Mo.App.1986). Yet, the legislature took no action while amending § 452.335 in 1988 to authorize awards of retrospective maintenance. I......
-
Marriage of Tappan, In re, 18185
...to do so waived any claim she may have had for more support during that period. Id. C.M.D. was cited and applied in Kessler v. Kessler, 719 S.W.2d 138 (Mo.App.E.D.1986). There a dissolution decree awarded the wife maintenance retroactively for the eight-month period immediately preceding tr......
-
Rogers v. Rogers, 57396
...the sound discretion of the trial court and review on appeal is to determine only whether that discretion is abused. Kessler v. Kessler, 719 S.W.2d 138, 140 (Mo.App.1986). On appeal it is the burden of the party challenging the maintenance award, here husband, to show the award was so exces......