Marriage of Tappan, In re, 18185

• Decision Date: 25 June 1993
• Docket Number: No. 18185,18185
• Citation: 856 S.W.2d 362
• Parties: In re the MARRIAGE OF Ronald P. TAPPAN and Elaine L. Tappan. Ronald P. TAPPAN, Appellant, v. Elaine L. TAPPAN, Respondent.
• Court: Missouri Court of Appeals

Page 362

856 S.W.2d 362

In re the MARRIAGE OF Ronald P. TAPPAN and Elaine L. Tappan.

Ronald P. TAPPAN, Appellant, v. Elaine L. TAPPAN, Respondent.

No. 18185.

Missouri Court of Appeals,

Southern District,

Division One.

June 25, 1993.

C. Ronald Baird, Mark J. Millsap, Dorr, Baird and Lightner, P.C., Springfield, for appellant.

Gail Berkowitz, Berkowitz & Cook, Kansas City, for respondent.

CROW, Presiding Judge.

By a decree entered April 24, 1992, the trial court dissolved the marriage of Ronald P. Tappan and Elaine L. Tappan. Ronald ¹ appeals, presenting four points relied on, each of which pertains to maintenance awarded Elaine.

Ronald, born July 14, 1934, and Elaine, born May 15, 1933, married July 30, 1955. Three children were born of the marriage; all were emancipated at time of trial. The parties were residing in Missouri in July 1988, when Elaine departed and established residence in South Carolina.

Ronald filed his petition for dissolution of marriage March 6, 1991. Elaine filed her answer and cross-petition April 8, 1991.

In a "Marital Settlement and Separation Agreement" dated April 17, 1991, the parties resolved all issues except (1) disposition of Ronald's pensions, (2) maintenance for Elaine, and (3) payment of Elaine's attorney fees. Those subjects were litigated at trial, January 2, 1992.

The trial court's adjudication of issues 1 and 3 is not attacked in this appeal. However, the pensions are pertinent to the maintenance issues; consequently, we must consider the pensions.

Ronald, a college graduate, worked thirty years for U.S. Steel Corporation, retiring in 1984 as vice president of sales. At trial, he testified he receives a pension from that company in the "gross" amount of $4,222 per month. However, he explained the benefits will decrease when he reaches 62 in that they will be "offset by Social Security."

In 1985, Ronald became employed by Paul Mueller Company in Springfield, Missouri. At time of trial he was executive vice president. He has a vested pension with that company; however, it will pay him nothing until he reaches 65.

The decree awarded Elaine half the U.S. Steel pension. In a "Qualified Domestic Relations Order," the trial court directed that Elaine's share be paid directly to her, finding that sum to be $2,311 monthly. ² Neither party disputes that amount.

The decree contained this provision regarding the Paul Mueller ("PMC") pension:

[Elaine] shall receive fifty percent

(50%) of the monthly pension benefits based

on the following computation:

# months [Ronald] has worked for PMC up

50% times monthly to and including January 1, 1992.

---------------------------------------

pension benefit X # months [Ronald] has worked for PMC

at the time of retirement

Per the separation agreement, Ronald bought Elaine a $162,000 home in South Carolina. Payments on the mortgage by which he financed the purchase include taxes and insurance, hence she is spared those expenses. The separation agreement requires Ronald to maintain a life insurance policy on himself, payable to Elaine, in an amount equal to the mortgage debt.

Additionally, Elaine received some $123,000 marital cash under the separation agreement. She used about $23,000 to furnish her home and for other expenses. At time of trial, the remaining $100,000 was invested, earning 5.8 percent annual interest.

When the parties separated, Elaine had a new Pontiac Grand Prix. A month before trial, she traded it in on a new 1991 Grand Prix, borrowing the difference ($5,000) from her mother. Elaine expected to repay her mother within ten months.

Elaine, a college graduate in business administration, was never employed outside the home during the marriage and sought no employment after the separation. Her activities at time of trial included volunteer work, church functions, aerobics and golf.

Elaine testified she has a "very low immune system" and was sick with bronchitis five months in 1991. However, she had not been hospitalized since the separation. Elaine admitted she has no ailment preventing her from working part-time, but opined, "I don't think I have any skills to make enough money to support myself."

After the separation, Ronald sent Elaine $1,500 per month and paid her automobile insurance. His health insurance paid some of her medical bills.

Elaine sought no temporary maintenance.

At trial, she presented an itemized list of her monthly expenses, totaling $4,588.42. The trial court accepted most items, but found duplication in one, found another inflated, and rejected another as unnecessary. Declaring a goal to provide Elaine a "reasonable but comfortable income," the trial court determined Elaine's reasonable monthly living expenses were $2,578. The trial court then announced:

Let's round it at 2500 and add another 500 on there for a cushion ... it seems like to me if she had $3,000 worth of disposable income a month, she'd be in very reasonable shape, and then, of course, she could increase that if she wished by taking employment, but she wouldn't have to.

After declaring Elaine should be allowed to "hang on to her interest income," the trial court asked counsel to compute the sum which, added to Elaine's share of the U.S. Steel pension, would provide her $3,000 per month "after taxes." Counsel subsequently determined maintenance of $1,681 per month would achieve that objective.

The decree awarded Elaine that sum.

Ronald's first point complains the maintenance is excessive in that Elaine's reasonable needs were shown to be $2,578 per month, she receives $2,311 per month from the U.S. Steel pension, and she was receiving $483 per month investment income (interest on her $100,000) at time of trial. Ronald points out the latter two figures total $2,794, some $200 more than Elaine's monthly needs.

Ronald asserts that inasmuch as Elaine is in the 28 percent income tax bracket, she needs only an additional $678 per month for federal and state income taxes to provide her $2,578 per month "after tax" income.

Ronald acknowledges Elaine is not required to consume her share of the marital property before receiving maintenance, and he does not argue she should receive none. Indeed, at trial he conceded she should receive monthly maintenance "somewhere between five hundred and a thousand dollars." However, Ronald emphasizes that the income Elaine earns from marital property received in the dissolution should be considered in determining the amount of maintenance. Drikow v. Drikow, 803 S.W.2d 122, 127-28 (Mo.App.E.D.1990); Kacich v. Kacich, 785 S.W.2d 606, 608 (Mo.App.E.D.1990); Kinder v. Kinder, 777 S.W.2d 339, 341-42 (Mo.App.W.D.1989).

Elaine responds that a trial court has substantial discretion in awarding maintenance, Hoffmann v. Hoffmann, 676 S.W.2d 817, 828 (Mo. banc 1984), and Ronald has the burden of demonstrating an abuse of discretion. Harris v. Harris, 784 S.W.2d 630, 631 (Mo.App.W.D.1990); Woods v. Woods, 713 S.W.2d 292, 294 (Mo.App.E.D.1986). Elaine reminds us that the statutory factors to be considered in awarding maintenance include the comparative earning capacity of each spouse, § 452.335.2(3) ³; the standard of living established during the marriage, § 452.335.2(4); and Ronald's ability to meet his needs while meeting hers, § 452.335.2(8).

Elaine cites evidence that Ronald's "gross pay" from Paul Mueller Company in 1991 (the year preceding trial) was $186,000, which allowed him to reinvest his investment income (his bonds, stocks and individual retirement accounts totaled "just under half a million").

Elaine notes the following passage from Brueggemann v. Brueggemann, 551 S.W.2d 853, 857 (Mo.App.1977):

In a marriage of lengthy duration where one spouse has foregone career development, the marital standard of living may serve as an important guide in computing the spouse's reasonable needs. In a very practical sense it is frequently the best evidence of what the parties have together determined their "reasonable needs" to be.

Elaine testified she did not work outside the home during the marriage because the family moved a lot and she was busy raising the children and keeping the household organized. Additionally, as Ronald ascended the corporate "ladder" she traveled with him to several conventions a year and engaged in business-connected entertaining.

Ronald did not dispute that testimony, but avowed that after the children were grown he encouraged Elaine to work outside the home, "not for the income ... but just ... it would be something she could do."

Elaine refers us to Richardson v. Richardson, 803 S.W.2d 45 (Mo.App.E.D.1990), for the proposition that a maintenance award will be upheld even though the maintenance combined with the receiving party's investment income from marital property slightly exceeds the sum which the trial court found to be such party's reasonable needs. While that is the holding, we observe the case was an appeal by the recipient that the maintenance was inadequate, not an appeal by the payor that the maintenance was excessive.

Elaine insists that because Ronald can meet all his needs and obligations out of his Mueller earnings, without having to spend his investment income, it is inequitable to include her investment income in calculating the maintenance she should receive.

The trial court was mindful of Ronald's superior earning capacity, as manifested by this comment:

... I have to consider ... that Mr. Tappan makes more money, but he works. And Ms. Tappan ... doesn't. She gets to be retired today while Mr. Tappan doesn't get to retire for another five years or whatever it is. She doesn't have any kids to raise now. She doesn't have to entertain for him now. She doesn't have anything to do but take it easy, unless she wants to.

As reported earlier, the trial court found Elaine could increase her income by obtaining employment.

Elaine testified her monthly expenses reflect a "far less luxurious lifestyle" than she enjoyed before the separation. Howe...