Marriage of Deatherage, In re

• Decision Date: 21 January 1980
• Docket Number: 10893,Nos. 10892,s. 10892
• Citation: 595 S.W.2d 36
• Parties: In re The MARRIAGE OF Sara DEATHERAGE and Paul R. Deatherage. Sara Deatherage, Petitioner-Respondent-Appellant, and Paul R. Deatherage, Respondent-Appellant-Respondent.
• Court: Missouri Court of Appeals

Page 36

595 S.W.2d 36

In re The MARRIAGE OF Sara DEATHERAGE and Paul R. Deatherage Sara Deatherage, Petitioner-Respondent-Appellant and Paul R. Deatherage, Respondent-Appellant-Respondent.

Nos. 10892, 10893.

Missouri Court of Appeals, Southern District.

Jan. 21, 1980.

Rehearing Denied Feb. 15, 1980.

H. Lynn Henry, Henry, Henry & Henry, West Plains, for petitioner-respondent-appellant.

Eugene E. Reeves, Ward & Reeves, Caruthersville, R. Jack Garrett, Garrett & Butts, West Plains, for respondent-appellant-respondent.

MAUS, Judge.

In this dissolution proceeding the court made the following awards to the petitioner wife upon her motion for temporary maintenance, child support and attorney's fees: for maintenance $2200 per month; for support of the 18 year old son $350 per month; for support of the 15 year old son $300 per month; $3500 for attorney's fees and $500 for suit money. The wife appeals contending the allowances were too low. The husband appeals contending they were too high. The appeals were consolidated.

The parties agree that an appeal lies from this order. However, an order not otherwise appealable cannot be made so by agreement. An appeal lies from a "final judgment". § 512.020 V.A.M.S. Ordinarily orders made upon motions are not of that character. Cases are not to be presented for appellate review in "piecemeal" fashion. However, historically it has been recognized: "The power of the court to order and enforce an allowance for alimony pendente lite, though an adjunct of the action of divorce, is an independent proceeding, standing upon its own merits, and in no way dependent upon the merits of the issues in the divorce suit, or in any way affected by the final decree upon those merits." State ex rel. Gercke v. Seddon, 93 Mo. 520, 522-523, 6 S.W. 342, 343 (1887). A long line of cases before the adoption of the Dissolution of Marriage Act have held orders granting temporary maintenance and support in actions for divorce and separate maintenance appealable. McCarthy v. McCarthy, 329 S.W.2d 236 (Mo.App.1959); Glaze v. Glaze, 311 S.W.2d 575 (Mo.App.1958); Bradley v. Bradley, 295 S.W.2d 592 (Mo.App.1956); Meredith v. Meredith, 151 S.W.2d 536 (Mo.App.1941). The Dissolution of Marriage Act does not expressly deal with the question. § 452.315 V.A.M.S., authorizing restraining orders, temporary injunctions and orders for temporary maintenance and support, in subsection 6(2) expressly provides that restraining orders and temporary injunctions may be revoked or modified prior to final decree upon the same basis as the modification of a final decree under § 452.370. This section is silent concerning revocation or modification of orders for temporary maintenance and support. However, § 452.370 provides in part "any decree respecting maintenance or support may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable." Because of the differences in historical background and statutes involved, cases from other jurisdictions, the majority which hold such orders appealable, are of little precedential value. ¹ 4 Am.Jur.2d, Appeal and Error, § 138. There are arguments pro and con concerning whether or not such orders should be appealable. The "pro" arguments, primarily because of the argument of the need for a right of appeal from an oppressive order, seem to preponderate. By the inter-relation of § 452.315 and § 452.370, it appears to have been the intent of the legislature to cause the orders authorized by § 452.315 to be final, except for changed conditions. This is mandated to prevent the trial court from being bombarded with a series of such motions amounting to nothing more than dissatisfaction with the previous action of the court. With such orders bearing that degree of finality, they should be final judgments for the purpose of appeal. The Missouri Court of Appeals, Eastern District, has held such orders made under the Dissolution of Marriage Act to be appealable. Richardson v. Richardson, 524 S.W.2d 149 (Mo.App.1975). ² This court does likewise.

The parties were married in 1957. They had two children: John, age 18 and Ted, age 15. Since the separation, which preceded the filing of the petition, the wife continued to live in the family home. The husband has lived in an apartment. The children are in the custody of the wife, although the older is attending a university. The husband has practiced his profession of dentistry for 21 years. Prior to the birth of the first child the wife was employed in general office work. She has no training beyond high school and has not worked for 181/2 years. She had no immediate plans for employment or furthering her education as she felt she should be at home with the younger child.

Although the wife owns a 371/2 interest in a corporation that owns and operates a motel, she has no income from that source. The husband also owns a 371/2 interest. Since 1971 the husband has received the income from both interests. There was no indication in the record this practice would change. The corporation is a "Small Business Corporation" under the Internal Revenue Code. The wife has savings and checking accounts of undisclosed amounts. The husband has a substantial income from his profession, from the motel corporation and securities. The parties own other non-income producing property. By the use of income tax returns for 1971 through 1976 the wife prepared a schedule showing the husband's gross income and net income from his profession and the motel and the adjusted gross income from those sources and his investment income. From the latter figures for each year she has subtracted the income taxes and then added their share of the depreciation of the business assets. The results are denominated as the husband's spendable income for each year. In 1976 the figure was shown to be $70,819.53. By adding retirement plan contributions and tax free interest (not included in the previous figures) she projects an average annual spendable income for those six years of $105,990.02. The husband acknowledged the accuracy of the schedule with the exception of the figures representing spendable income. He disputes those figures by pointing out principal payments on motel indebtedness, the Deatherage portion of which is $2025 per month or $24,300 per year. The husband has additional indebtedness upon which no principal payments are required and none shown to be contemplated in the near future. He also argues that the amount of depreciation should not be added in determining his spendable income. At the hearing he pressed this contention by pointing out in a general way that the amount of depreciation will decrease each year. The decrease between 1975 and 1976 was approximately $4000. However, all other factors remaining constant, any such decrease will result in a correspondingly higher net income which, less any increase in income taxes, may be considered in determining available resources. Upon appeal the husband, without citation of authority, also argues that depreciation should not be considered an available resource. These are cases indicating that the amount of depreciation is in toto to be considered as an available asset, Commonwealth ex rel. ReDavid v. ReDavid, 251 Pa.Super. 103, 380 A.2d 398 (1977); Commonwealth ex rel. Rankin v. Rankin, 170 Pa.Super. 570, 87 A.2d 799 (1952), and others that it should not be considered at all. (depletion) Brackob v. Brackob, 265 Wis. 513, 61 N.W.2d 849 (1953); Sylvan v. Sylvan, 373 P.2d 232 (Okl.1962). See Annotation 1 A.L.R.3d 295. The extent to which depreciation should be considered an available resource would seem to depend upon the nature of the asset being depreciated and the need to apply the allowance for depreciation to improvement or replacement to maintain the production of income. Commonwealth v. Miller, 202 Pa.Super. 573, 198 A.2d 373 (1964). These determinations are of greater significance in fixing maintenance and support in a final decree than in fixing temporary allowances. This decision does not require the adoption of any standard or detailed analysis of the allowance involved, which could not be accomplished on the record before the court, as irrespective of such a determination the record establishes the husband's ability to pay the allowances.

The parties enjoyed a high standard of living. Their style of life included a four-bedroom home, several automobiles, and numerous social, recreational and civic activities. The husband in particular enjoyed extensive domestic and overseas travel. As the trial court remarked in announcing his decision, "the standard of living is indeed on a scale that is unparalleled in this area literally, with the possible exception of one or two people." The wife presented a projection of her annual needs which she based upon an average of expenditures over the past several years. This list included such items as $4000 for college expenses, $5640 for home maintenance, repair and furnishings, $7500 for income taxes, and $3000 for clothing. These anticipated needs totaled $42,000 or $3500 per month which she would allocate as $2600 for her maintenance and $450 for each child. The husband did not agree and estimated the domestic expenses at $4500 per year plus $600 per month household allowance which totaled $11,700. He did not include in these figures expenditures for the university, income taxes or major home maintenance. The only figures of the wife he specifically questioned were: $250 for personal property tax instead of $1250 and $488 for house and automobile insurance instead of $1000. The husband did not present any estimate of or figures concerning his living expenses. It is with this background the trial court fixed the allowances.

A motion for an order for temporary maintenance and child support is authorized by § 452.315. An order for...