Marriage of Baker, In re

• Court: Missouri Court of Appeals
• Writing for the Court: KENNETH W. SHRUM
• Citation: Marriage of Baker, In re, 986 S.W.2d 950 (Mo. App. 1999)
• Decision Date: 23 March 1999
• Docket Number: No. 21897,21897
• Parties: In re the MARRIAGE OF BAKER. Richard H. Baker, Petitioner-Respondent, v. Mary Sue Baker, Respondent-Appellant.

Page 950

986 S.W.2d 950

In re the MARRIAGE OF BAKER Richard H. Baker, Petitioner-Respondent, v. Mary Sue Baker, Respondent-Appellant.

No. 21897.

Missouri Court of Appeals,

Southern District,

Division Two.

March 23, 1999.

Mark J. Millsap, Baird, Lightner & Millsap, Springfield, for appellant.

June Clark, Carmichael, Gardner & Clark, Springfield, for respondent.

KENNETH W. SHRUM, Presiding Judge.

Mary Sue Baker (Wife) appeals from a judgment dissolving her marriage to Richard H. Baker (Husband). Wife challenges those portions of the judgment that limited her maintenance award to $100 per month, divided the parties' marital property, and denied her request for attorney fees. We affirm the trial court's division of property and decision regarding attorney fees. We modify the maintenance award by increasing it to $400 per month, effective August 14, 1998.

FACTS

The parties were married on June 9, 1962. They separated on May 1, 1995, and Husband filed a petition for dissolution. Two children were born of the marriage: Christina, born October 8, 1971, and Richard, born October 9, 1973. Richard is emancipated and no longer lives with either parent. Christina, who is severely physically and mentally disabled, functions at the level of a nine-to thirteen-month-old child. ¹ She cannot walk, talk, or care for herself. Someone must care for Christina twenty-four hours a day. She is incontinent (bowel and bladder) and must wear diapers at all times, she must be dressed and fed by others, and she moves about via wheelchair or by crawling. There is little or no expectation that Christina can develop further.

Wife, born September 12, 1942, finished high school and has a few college hours. Her work history began with a telephone company in California where she worked for thirteen years. After Richard was born, she quit that job to care for the children. In 1978, Husband and Wife moved to Springfield, Missouri. Two years later, Wife started working part time for Easter Seals. In 1981, she returned to full-time employment, first as a medical records assistant and then as a secretary. At the time of trial, Wife was working in the medical records office of a local hospital. In this job, she worked forty hours per week, 8:30 a.m. to 5:00 p.m., Monday through Friday, and earned $8.62 per hour. It is essential that Wife work only the assigned hours because her schedule must coordinate with those of the agencies and their personnel who assist her in caring for Christina.

Husband, born December 2, 1940, graduated from high school and attended one year at a community college. He had worked in the retail food and beverage business since high school. At the time of trial, he managed the liquor department of a local supermarket. As a salaried employee, he worked 7:00 a.m. to 6:00 p.m., Monday through Saturday, with Thursday afternoon off. He also worked most holidays. His salary was $525 per week. He also received quarterly bonuses that varied in amount and were not guaranteed. Husband's gross employment income in 1996 was $32,941.

At time of trial, Husband's health was good. In contrast, Wife had "degenerative knee syndrome," for which she received cortisone injections. She also had "bilateral carpal tunnel syndrome" and "fibromyalgia." She regularly took medications to treat fluid retention and depression. Although Wife's medical conditions did not prevent her from working, she claimed they restricted her job selections.

Since the parties' separation, Christina has been cared for as follows. Each morning, Wife gets Christina up, dresses her, and fixes her a meal. During the week, Christina is picked up at approximately 7:10 a.m. and taken to Adult Tendercare where she remains until 3:45 p.m. Adult Tendercare is an adult day-care center for mentally and physically disabled persons operated by Dr. Clarence Ketch. Although Adult Tendercare ordinarily would not transport Christina to and from its facilities, Dr. Ketch was, at the time of trial, gratuitously transporting Christina back and forth as a favor to the family. When Christina gets home around 3:45 p.m., she is cared for by a firm called Family and Friends. Missouri's Division of Aging pays for this service. The service is limited, however, to only two hours of caregiving per day. Consequently, Wife has had to arrange her schedule so she can be home by 5:45 p.m.

Part of Christina's care is also provided through a program known as "respite care," which works as follows. Wife pays $21.50 per month and receives twenty-three hours of caregiver assistance each month. The balance of the caregiver's fees are subsidized by the Greene County Developmental Disability Board. Wife generally uses the respite time to "get her hair done," run errands, grocery shop, or go to Branson.

Since the parties' separation, Wife has stayed with and cared for Christina at all times except when Christina has been cared for by Adult Tendercare, Family and Friends, respite caregivers, or private caregivers hired by Wife. Wife normally pays $5.00 per hour for private caregivers.

At the time of trial, Christina's financial needs were being met through (1) Wife's employment income, (2) the agencies described above, and (3) Christina's monthly SSI check for $484.

We set forth additional facts as necessary in the discussion of Wife's points relied on.

THE DECREE

The court awarded Husband personal property classified as marital valued at $71,212.23. This award consisted largely of Husband's vested retirement accounts, i.e., a pension fund through a union in California, valued at $55,310, and a 401(k) plan with Husband's current employer, valued at $6,439.61. The court ordered Husband to pay $20,187.66 in debts. Husband's nonmarital property was valued at $1,345.

Wife's award of marital personal property was valued at $35,900.30. This award contained no income-producing property. The only item of significant value was Wife's pension fund, valued at $29,942. The court ordered Wife to pay $3,253.68 in debts. Wife's nonmarital property was valued at $500.

The court ordered the marital home sold, with proceeds to be disbursed in the following order: (1) pay costs of sale including broker's fee, (2) pay current and past real estate taxes, (3) pay the deed of trust lien, (4) reimburse Husband for house payments made from the date of the decree to the date of sale, (5) pay Wife $18,378 "to make the division of all marital property more equitable," and (6) divide the remaining balance equally between Husband and Wife.

With regard to Christina, the court found her unemancipated due to her disability. The court awarded Husband and Wife joint legal and physical custody of Christina but apportioned the greater share of physical custody to Wife. The court adopted Husband's Form 14 calculation of child support but deviated therefrom and imposed no support obligation "because of the Social Security Administration policy of off setting S.S.I. benefits for money paid by a non-custodial parent." The court ordered Husband to pay all of Christina's medical expenses not covered by insurance, Medicare, or Medicaid.

With regard to Wife's request for maintenance, the court found:

"a. [Wife] has requested $500 per month as periodic maintenance and the Court finds that to meet her reasonable needs that request is reasonable given her income and expenses. However the Court finds that [Husband] given his income and expenses has only limited ability to pay periodic maintenance. The Court notes that both parties have borrowed from relatives and [Husband] has borrowed from a 401-K fund to meet ordinary expenses. The Court does not have a solution for the parties maintaining 2 households with the income that is presently available."

"b. That [Wife] lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs, and is unable to support herself through appropriate employment, and that after considering all relevant factors including those set out in Section 452.335 RSMo., that [Husband] should pay $100 periodic maintenance...."

The court also denied Wife's request for an award of attorney fees.

SCOPE OF REVIEW

Our review is governed by Rule 73.01(c) and the principles enunciated in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). Mistler v. Mistler, 816 S.W.2d 241, 245 (Mo.App.1991). Thus, we must affirm the judgment of the trial court unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d at 32. Within the confines of the law and the evidence, the trial court has sound discretion in awarding maintenance, Franke v. Franke, 747 S.W.2d 202, 203 (Mo.App.1988); dividing marital property, In Re Marriage of Lafferty, 788 S.W.2d 359, 361 (Mo.App.1990); and awarding attorney fees, Mistler, 816 S.W.2d at 256. On these matters, we review for an abuse of discretion.

DISCUSSION AND DECISION

Maintenance

In her first point on appeal, Wife lists the following reasons in support of her claim that the trial court's award of $100 per month maintenance was a misapplication of the law, an abuse of discretion, not supported by substantial evidence, and against the weight of the evidence:

(a) she has reasonable monthly expenses for herself and Christina totaling $2,423 and a net monthly income of only $935 plus Christina's $484 to provide for their reasonable needs;

(b) she has a limited earning capacity due to her lack of formal education;

(c) she is fifty-four years old and has physical impairments that restrict her daily activities and "impair her continued gainful employment and additional employment;"

(d) she is the custodian of Christina who is severely physically and mentally handicapped and totally dependent on Wife for full-time care; thus Wife is precluded from holding other jobs to supplement her monthly income;

(e) she received no income-producing property in the court's...