Layton v. Layton, 46172
| Decision Date | 22 May 1984 |
| Docket Number | No. 46172,46172 |
| Parties | Nina J. LAYTON, Petitioner-Respondent, v. Jerry D. LAYTON, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Patricia A. Riehl, Hollingsworth & Kramer, Hillsboro, for respondent-appellant.
L. Richard Brinkman, Jr., Gumersell, Denk & Brinkman, Arnold, for petitioner-respondent.
On appeal, husband contests the provisions of a dissolution of marriage decree concerning maintenance, visitation rights, division of marital property and attorneys' fees. We affirm.
Husband's first point relates to the trial court's order of maintenance in the amount of $70 per week for twelve months. The evidence disclosed that wife had not been employed during the thirteen years of the marriage. After the parties separated she obtained employment in a factory earning $195 per week in take-home pay. At the time of the hearing she had been laid off, but hoped to be recalled. On direct examination she testified that because of this hope she was not asking for alimony. Seizing upon this single statement, husband contends wife has waived maintenance. He relies upon In re Marriage of Noeltner, 569 S.W.2d 8, 11 (Mo.App.1978) wherein this court reversed an award of $1 a year to a wife who had expressly waived maintenance. This reliance is misplaced.
In reviewing an award of maintenance it is the limited function of an appellate court to determine only whether the broad discretion vested in the trial court has been abused. In re Marriage of Zuniga, 622 S.W.2d 705, 706 (Mo.App.1981). In Noeltner, except for evidence of gross misconduct on the part of the wife, the record appears to be devoid of any evidence regarding the other six factors which § 452.335.2, RSMo 1978, requires the trial court to consider in determining the justness of a maintenance order. Therefore, the award of $1 per year for maintenance after an express waiver thereof by the wife was totally unsupported by evidence and amounted to abuse of discretion. 569 S.W.2d 8, 11 (Mo.App.1978).
Under different circumstances, this court reached an opposite conclusion in Rickard v. Rickard, 616 S.W.2d 95 (Mo.App.1981). Despite a wife's express waiver of maintenance, we found that the evidence of her financial situation warranted the trial court's award of maintenance. Id. at 97. In similar fashion in Kalish v. Kalish, 624 S.W.2d 531 (Mo.App.1981), we approved the decision of the trial court to award a wife $350 per month despite her request for an award of only $215 per month. "The award of maintenance is within the power of choice of the trial court and a grant or deprivement thereof will not be displaced unless there is an illustration of misuse of that discretion." Id. at 532. Based upon this same principle, we reviewed the record in Walker v. Walker, 631 S.W.2d 68 (Mo.App.1982), found the evidence to support a wife's waiver of maintenance, and overturned the trial court's award of $5 per week as "clearly against the weight of the evidence." Id. at 70. These decisions clearly reflect that the trial court is not bound by any stipulation, agreement or waiver regarding maintenance, but rather the court must exercise its discretion to determine the granting or denial, the amount and duration of maintenance as guided by the factors set forth in § 452.335.2, RSMo 1978.
This conclusion is in harmony with the basic concept underlying the procedural requirements of the dissolution of marriage act. Section 452.325.3, RSMo 1978 authorizes the trial court to disregard unconscionable separation agreements and to make such orders for the disposition of property, support, and maintenance as it deems just. We may not disturb such a determination on the part of the trial court so long as it is supported by the evidence, is not contrary to the weight of the evidence and does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
Considering wife's unemployment during the marriage, her unemployment at the time of the dissolution hearing, and the deferral for as long as twelve months of her share of the proceeds from the marital residence, the principal asset, we find ample support for the trial court's award of temporary maintenance.
Husband's second point attacks the provision of the decree regarding visitation rights with his twelve year old daughter. The decree provides that husband shall have "reasonable temporary custody ... but no visitation rights...." The temporary custody is specified as "including at least every Sunday from 10:00 a.m. to 5:00 p.m. at the home of [husband] and his son." Husband had requested the court to establish flexible visitation rights since his employment as a truck driver followed no set schedule. The record discloses considerable evidence of husband's excessive drinking and acts of violence. The daughter testified in chambers that she would like to see her father "every now and then" but that she would not want to spend the night with him or be in a car he was driving. The decree is fashioned to comply with the daughter's wishes and to reduce the potential endangerment to her. The decree sets forth a minimum, leaving to the parties the determination of what additional periods of temporary custody may be reasonable from time to time. We find no abuse of the trial court's discretion to determine what arrangement will serve the best interest of the child. C.A.Z. v. D.J.Z.,...
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