Llana v. Llana

• Decision Date: 02 December 2003
• Docket Number: No. WD 61317.,WD 61317.
• Parties: Pamela McCarley LLANA, Appellant, v. Angelo Antonio LLANA, Respondent.
• Court: Missouri Court of Appeals

121 S.W.3d 286

Pamela McCarley LLANA, Appellant, v. Angelo Antonio LLANA, Respondent.

No. WD 61317.

Missouri Court of Appeals, Western District.

December 2, 2003.

Gail Berkowitz-Gifford, Kansas City, MO, for Appellant.

Ronald R. Holliday, St. Joseph, MO, for Respondent.

Before ELLIS, C.J., LOWENSTEIN and HOWARD, JJ.

HAROLD L. LOWENSTEIN, Judge.

This is an appeal from a dissolution of marriage. The facts adduced at trial favorable to the judgment are as follows:

The parties to the dissolution, Dr. and Ms. Llana were married in 1989. Two children were born of the marriage: Chandler, born in 1992, and Schaefer, born in 1996.

The appellant, Ms. Llana, received a degree in medical technology in 1981. Prior to the marriage, Ms. Llana worked as a pharmaceutical representative, earning $40,000-50,000 per year.¹ Her job required her to travel extensively from Monday through Thursday. She continued working in this capacity until shortly after the birth of the parties' first child. Ms. Llana has not been employed since 1992. Ms. Llana also has not received any significant training or education since she left the workforce.

Dr. Llana graduated from medical school in 1986 and completed his residency in 1989. Dr. Llana began working for Specialists of Internal Medicine in St. Joseph, Missouri, after completing his residency. In 1995, Specialists of Internal Medicine was purchased by Heartland Health Systems. Dr. Llana has been employed by Heartland Health Systems since 1995. Dr. Llana currently earns approximately $200,000 per year.

During the marriage, the family had an affluent standard of living. The parties lived in a home that was sold for over $600,000 after Ms. Llana filed for divorce; they drove expensive cars, which were frequently traded for newer cars; and they bought expensive jewelry and clothing.

In her petition, Ms. Llana requested, inter alia, maintenance and child support. On March 20, 2002, the trial court awarded Ms. Llana monthly maintenance and child support of $2500 and $2062, respectively, until January 2003.² However, the trial court ordered that monthly income of $2917 be imputed to Ms. Llana beginning January 2003. Accordingly, the trial court prospectively reduced the amount of maintenance and child support to $1100 per month and $1757 per month, respectively. In addition to the $1757 monthly child support, the court ordered Dr. Llana to pay eighty-five percent of all work-related child care expenses incurred by Ms. Llana. Ms. Llana has appealed.

STANDARD OF REVIEW

Provisions in a divorce decree will be affirmed unless there is no substantial evidence to support them, they are against the weight of the evidence, or the trial court incorrectly declares or applies the law. Stangeland v. Stangeland, 33 S.W.3d 696, 700 (Mo.App.2000). The trial court has broad discretion in awarding maintenance, and its decision will not be overturned absent an abuse of discretion "where the award is such that it shocks the appellate court's sense of justice." Id. To determine whether the trial court abused its discretion, this court reviews the evidence in a light favorable to the decree, disregarding any evidence to the contrary and deferring to the trial court's judgment even if the evidence could support a different conclusion. Id. If there is a rational basis to support a decision to limit maintenance, that decision should be affirmed. Judy v. Judy, 998 S.W.2d 45, 50-51 (Mo. App.1999).

MAINTENANCE

In her first point on appeal, Ms. Llana claims that the trial court erred in awarding her monthly maintenance beginning November 2001 in the amount of $2500 that was to be prospectively reduced to $1100 beginning January 2003. She argues that there was insufficient evidence for the trial court to conclude that she would be employed within ten months and earning $35,000 per year. Consequently, Ms. Llana asserts that it would be error for the court to prospectively decrease the maintenance award based on this conclusion.

The trial court concluded that Ms. Llana was able to immediately reenter the workforce. However, the court held that "she should have until January 1, 2003, to secure full time employment ... This will give [Ms. Llana] an additional ten months to re-enter the work force after an absence of approximately ten years." Ms. Llana claims that there is no credible evidence to support this finding.

The trial court should not prospectively decrease or terminate maintenance unless there is evidence or a reasonable expectation that the circumstances of the parties would be markedly different in the future. Burrus v. Burrus, 754 S.W.2d 882, 886 (Mo.App.1988). Ms. Llana earned a degree in medical technology from the University of Mississippi in 1981. Prior to the marriage, Ms. Llana worked as a pharmaceutical representative. She continued working as a sales representative for the first two years of the marriage. There was trial testimony indicating that Ms. Llana earned $40,000-$50,000 per year. Ms. Llana's education and past work experience was sufficient evidence for the trial court to conclude that there was a reasonable expectation that she would be able to find employment. Howsmon v. Howsmon, 77 S.W.3d 752, 756 (Mo.App.2002).

Furthermore, it was well within the trial court's discretion to impute a present annual income of $35,000 to Ms. Llana, especially in light of testimony elicited at trial indicating that she had earned $40,000-50,000 per year and that present entry-level positions at two different pharmaceutical companies pay in excess of $40,000 per year in base salary. There was testimony concerning employment opportunities open to Ms. Llana. A pharmaceutical sales representative working for Merck Pharmaceuticals testified that entry-level sales representatives with no previous experience earn $42,500 per year in base salary working for the company. The representative also indicated that such positions offer bonuses and a company car. He further testified that the company had in the past hired sales representatives after several years absence from the workplace. A second pharmaceutical sales representative working for Roche Laboratories, a pharmaceutical company, testified that an entry-level sales representative with the company receives an annual salary in the low to mid $40,000 range, a company car, and additional benefits. Finally, a human resources manager working for Heartland Health testified that she had spoken with Ms. Llana about career opportunities and that Ms. Llana had the minimum job qualifications for some of the positions offered by Heartland Health.

Ms. Llana attempts to minimize the impact of the testimony concerning her employability by pointing to the potential bias of the witnesses in favor of the respondent. Two of the three witnesses derive a portion of their income from selling pharmaceutical products through prescriptions made by the respondent. However, it is well within the trial court's discretion to accept as true the testimony of these witnesses. Judy, 998 S.W.2d at 50.

Ms. Llana testified that she had not obtained employment and that none of the witnesses (or the respective companies for which they work) have offered her a position.³ This was not a prerequisite for the court to find that the appellant is able to find gainful employment or to impute income to the appellant. The payor spouse should not be required to make higher maintenance payments, then seek a modification, simply because there is not an absolute certainty that the payee spouse will be self-sufficient. Bixler v. Bixler, 810 S.W.2d 95, 99 (Mo.App.1991).

Ms. Llana also states that she was unable to work, because she needed to stay home and care for her two children. First, spouses seeking maintenance have a duty to use their best efforts to seek employment. Id. Therefore, a spouse's personal desire to not work is irrelevant. Second, Ms. Llana's two children are old enough⁴ and do not have any condition that requires Ms. Llana to provide constant care. Third, the children would not have required constant care because they would have started school several months before January 2003, the date by which Ms. Llana was to be employed and have income imputed to her.

Ms. Llana cites LoPiccolo v. LoPiccolo, 547 S.W.2d 501 (Mo.App.1977), for the proposition that "stair-step" maintenance is improper. However, that case does permit such "stair-stepping" if there is evidence or a reasonable expectation that the parties will experience changed circumstances in the future. Id. at 505-06. Based on the evidence concerning Ms. Llana's education and prior experience as a successful pharmaceutical representative and the testimony concerning employment opportunities, the trial court had sufficient evidence to conclude that Ms. Llana could find work and earn $35,000 per year. The trial court did not engage in idle speculation as the appellant suggests. Consequently, this court affirms the portion of the trial court's judgment imputing income to Ms. Llana beginning January 2003 and to reduce the maintenance award to $1,100 per month based on the imputation of income.

In her second point on appeal, Ms. Llana also claims that the trial court erred in awarding an inadequate amount of maintenance, because the evidence did not support the monthly maintenance awards of $2500 and then $1100. First, she argues that her monthly expenses were in excess of $6000⁵ and the ordered maintenance was insufficient to provide for her reasonable needs. Ms. Llana's claim is problematic. First, "[t]he credibility of witnesses is a matter that is within the sound discretion of the trial court, which can either accept or reject all, part or none of the testimony it hears." Crews v. Crews, 949 S.W.2d 659, 665 (Mo.App.1997). The trial court may even disbelieve testimony that is uncontradicted. Hernandez v. Hernandez, 872 S.W.2d 161, 165 (Mo. App.1994). Therefore, the trial court need not accept Ms. Llana's estimated monthly...