King v. King, WD

• Decision Date: 03 January 1989
• Docket Number: No. WD,WD
• Citation: 762 S.W.2d 544
• Parties: Mary Ann KING, Respondent, v. Wesley Dean KING, Appellant. 40575.
• Court: Missouri Court of Appeals

Page 544

762 S.W.2d 544

Mary Ann KING, Respondent, v. Wesley Dean KING, Appellant.

No. WD 40575.

Missouri Court of Appeals Western District.

Jan. 3, 1989.

Douglass F. Noland, Kansas City, for appellant.

William B. Korth, Kansas City, for respondent.

Before FENNER, P.J., and MANFORD and GAITAN, JJ.

FENNER, Presiding Judge.

Appellant, Wesley Dean King (Husband) appeals from a Decree of Dissolution of Marriage. He contends that the trial court erred in provisions of the decree regarding the division of marital property, maintenance and attorney's fees awarded to respondent, Mary Ann King (Wife).

The parties were married on July 1, 1978. There exists some dispute as to when the parties separated, the Wife claiming March, 1986, and the Husband claiming October, 1982. There were no children born of the marriage. Both parties had previously been married and had children from their prior marriages.

At the time of the marriage, Wife was employed at TWA. During the marriage, she held various other employment positions. Currently, Wife is employed at the Kansas City Police Department, where she has worked since July, 1986. Her current gross salary is approximately $12,000 per year. Husband is, and at all times during the marriage was, employed at TWA, having been employed there since 1959. His current income is approximately $42,000 per year.

In the beginning of the marriage the parties resided at 7113 North Cherry, Kansas City, Missouri, in a home Wife had received in a previous dissolution, which was her sole and separate property. During the time the parties lived together in the residence, both made contributions toward the payments of $204.00 per month.

In October, 1982, the parties separated for the first time and began what was to become a series of separations and reconcilations. The remainder of the marriage proved to be quite turbulent, to say the least. The parties' final separation was, according to the trial court, in March, 1986.

The trial court set apart to the parties their non-marital property and made a distribution of the marital assets. The total value of the marital property amount was determined to be $31,828.40. Included in the marital property figure were the portions of Husband's TWA Retirement Plan and TWA Trust Annuity Plan found by the court to be marital property. Wife was awarded marital property that had a total value of $13,773. Husband was awarded marital property that had a total value of $18,055. However, Husband was also ordered to pay a marital debt in the amount of $8,774 which was an encumbrance, against an automobile distributed to Husband as part of his marital property. Taking this debt into consideration reduced the value of the property that Husband received to the amount of $9,281. The trial court awarded maintenance in gross to Wife in the amount of $7,500, payable at $300 per month until paid in full. Wife was also awarded $1,500 attorney's fees.

In his first point, Husband takes issue with the portion of the divorce decree which awarded $7,500 maintenance in gross to Wife. He asserts that the trial court abused its discretion because the findings required for maintenance to be awarded as set forth in § 452.335, RSMo 1986 ¹, infra, were not here present. Husband maintains the evidence demonstrated that Wife was employed, had job skills and was awarded a significant portion of the marital property. Therefore, there was no evidence to support a finding that Wife lacked sufficient property to provide for her reasonable needs or was unable to support herself through appropriate employment.

The trial court has a great deal of discretion in awarding maintenance. Colabianchi v. Colabianchi, 646 S.W.2d 61, 66 (Mo. banc 1983). The standard of appellate review of an award of maintenance requires affirmance unless there is no substantial evidence to support the decision, it is against the weight of the evidence, or it erroneously declares or applies the law. P.L.K. v. R.J.K., 682 S.W.2d 486, 489 (Mo.App.1984); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Unless the amount of maintenance is patently unwarranted and wholly beyond the means of the spouse who pays, interference by this court is not warranted. Petty v. Petty, 739 S.W.2d 738, 741 (Mo.App.1987), citing Bull v. Bull, 634 S.W.2d 228, 229 (Mo.App.1982).

The initial query in deciding the question of maintenance is whether the requesting party, herein the Wife, has sufficient property, including marital property apportioned during the proceedings, to provide for her reasonable needs. § 452.335.1(1). If the property is insufficient then the trial court must determine whether those reasonable needs can be met through appropriate employment of the requesting spouse. § 452.335.1(2). If the court finds an award of maintenance appropriate then the amount and duration must be determined. Section 452.335.2 lists several factors to be considered in making this determination. Those relevant to the case herein are as follows:

(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently;

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

(4) The duration of the marriage;

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

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

At trial evidence was presented that Wife had no property other than personal belongings. Wife testified that she had no savings account and could not support herself based upon her salary alone which is approximately $12,000 per year. She stated that she was 44 years old and had no educational training other than a GED. In Wife's current employment she has no pension built up or retirement. The award to Wife of a portion of Husband's TWA retirement benefits is of no value to Wife at present as they will not be distributed until such time as Husband retires. Further, Wife received no income producing property in the property distribution.

As previously stated, the parties were married on July 1, 1978, and according to the trial court findings, were separated on or about March 1, 1986, a period of nearly eight years, although for most of this time period the marriage was...