May v. May, s. 57220

• Decision Date: 11 December 1990
• Docket Number: 57222,Nos. 57220,s. 57220
• Citation: 801 S.W.2d 728
• Parties: Carolyn MAY, Appellant/Cross-Respondent, v. William Leroy MAY, Respondent/Cross-Appellant.
• Court: Missouri Court of Appeals

Page 728

801 S.W.2d 728

Carolyn MAY, Appellant/Cross-Respondent, v. William Leroy MAY, Respondent/Cross-Appellant.

Nos. 57220, 57222.

Missouri Court of Appeals,

Eastern District,

Division Three.

Dec. 11, 1990.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Jan. 23, 1991.

Theodore S. Schechter, Clayton, for appellant/cross-respondent.

Irving L. Cooper, Lisa C. Toarmina, Clayton, for respondent/cross-appellant.

CRANE, Judge.

Both parties to this dissolution of marriage action appeal. They challenge the financial provisions of the decree involving maintenance, child support, the division of marital property, and attorney's fees. We remove the time limitation on maintenance and add college tuition and expenses to the child support obligations. We affirm as so modified.

William Leroy May [husband] and Carolyn May [wife] were married on September 10, 1960. Two children were born of the marriage, one of whom was still a minor at the time of trial. Wife filed a petition for dissolution of marriage on March 12, 1986. The action was tried on seven days in 1988. The court entered its Findings of Fact, Conclusions of Law and Order dissolving the marriage on May 15, 1990, and granted wife custody of their minor daughter. Wife was awarded non-modifiable maintenance in the amount of $1,250.00 per month for a period of 60 months and $350.00 per month as child support. Wife was awarded the family home, valued at $127,500.00, and was ordered to take over the outstanding indebtedness on the home in the amount of $32,321.75. Each party was awarded one-half of husband's retirement, pension and profit-sharing plans. Other marital property was more or less evenly divided. Husband was ordered to pay wife's attorney's fees and expenses in the amount of $19,562.40 and court costs. This appeal followed.

Wife objects to the trial court's decree on four grounds: 1) that the award of maintenance was improperly limited to five years; 2) that the amount of maintenance was insufficient to meet her reasonable expenses; 3) that the amount of child support was inadequate; and 4) that the testimony of wife's expert witnesses was impermissibly restricted. Husband argues that the trial court erred in 1) failing to set apart certain separate property, 2) awarding wife an excessive amount of marital property, 3) ordering him to pay wife's attorney's fees, and 4) in failing to make the award to wife of an interest in husband's pension plan sufficiently specific to be enforceable.

Wife's Appeal

Wife first argues that the trial court erred in limiting maintenance to a period of five years. We agree.

The court has broad discretion in determining the amount and the duration of maintenance pursuant to § 452.335 RSMo (Supp.1988). Our review is limited to determining whether the trial court has abused its discretion. Hahn v. Hahn, 739 S.W.2d 763, 764 (Mo.App.1987). "[A] decision to limit maintenance is justified only where substantial evidence exists of an impending change in the financial condition of the parties." Burbes v. Burbes, 739 S.W.2d 582, 584 (Mo.App.1987). At a minimum there must be substantial evidence to support a reasonable expectation that such a change will occur. Harper v. Harper, 764 S.W.2d 480, 481 (Mo.App.1989); Pemberton v. Pemberton, 756 S.W.2d 660, 662 (Mo.App.1988). Maintenance should not be prospectively terminated if there is no evidence or reasonable expectation that the circumstances of the parties will be markedly different in the future. Hefti v. Hefti, 682 S.W.2d 65, 67 (Mo.App.1984).

At the time of the trial, wife was forty-nine years old. She had married at age 20, after completing her junior year of college, and received a bachelor of arts degree at age 42. She had only eight months paid employment experience during the twenty-nine year marriage. She had a long history of professional treatment for a personality disorder and depression. Her treating psychiatrist testified that, although she would encourage wife to get a job, wife would not be able to hold a job successfully, given her depression and personality problems which required long term therapy to reverse.

After considering this evidence the trial court found:

... [W]hile [Wife] may be unable to support herself through appropriate employment and lacks sufficient property, including marital property apportioned to her, as set out herein, to provide for her reasonable needs, at least at the present, there remains certain rays of hope for the future.

The trial court noted that the psychiatrist testified that she would encourage wife to acquire a job and that a vocational expert called by husband testified that wife would be "employable" in areas in which she had expressed an interest. Based on this evidence, the court further found:

The Court finds that while, during the present on-going crisis, and probably for sometime to come, the [Wife] will not function normally, that sometime in the future she will have to find it within herself to seek and sustain full time employment.

There was no evidence of a reasonable probability that wife's psychiatric problems would be sufficiently resolved five years from the date of the decree to allow her to sustain full time employment. See Harper v. Harper, 764 S.W.2d 480, 481 (Mo.App.1989). There was no evidence of any impending change. Maintenance awards cannot be based on mere speculation as to the future condition of the spouse. Howard v. Howard, 764 S.W.2d 169, 171 (Mo.App.1989). Such speculation constitutes an abuse of discretion. Burbes, supra, 739 S.W.2d at 584. We find that the trial court erred in awarding limited maintenance. We reverse this order and enter the order which should have been entered by the trial court. Id. at 585. Maintenance shall continue unless and until a proceeding for modification is brought and a change deemed appropriate under § 452.370 RSMo (Supp.1988). Rule 84.14.

Wife next asserts that the amount of maintenance ordered was insufficient to meet her reasonable needs and that husband was able to pay a higher award. Wife was awarded the sum of $1,250.00 per month. Wife originally contended at trial that her reasonable needs were $7,430.93 per month. As a result of evidence and admissions at trial, she has now reduced this figure to $2,927.26 per month. Husband's net monthly income after taxes and social security is $4,656.00. His personal monthly expenses are $1,753.00 plus $963.00 for his daughter's college tuition and room and board and $350.00 for child support.

A trial judge has substantial discretion in awarding maintenance and is not required to meet all the needs of the spouse receiving the award. Hoffmann v. Hoffmann, 676 S.W.2d 817, 828 (Mo. banc 1984). Section 452.335 does not require the trial court to meet every need of the spouse receiving maintenance, even where the husband has adequate resources to provide a greater portion of the wife's needs than the court has ordered. Rasmussen v. Rasmussen, 627 S.W.2d 117, 120 (Mo.App.1982). The maintenance award of $1,250.00 per month was within the broad discretion of the trial judge. Wife's second point is denied.

For her third point wife asserts that the trial court's award of $350.00 per month child support is insufficient. Wife was awarded custody of the couple's minor child who was a full time college student in Texas at the time of trial. She lived with wife approximately five months per year during school vacations. Husband paid her college tuition and expenses in the amount of $963.00 per month. He has represented in his brief that he continues to pay those expenses.

Wife originally requested child support in the amount of $1,775.64 per month. In her brief she now states that she reasonably needs $459.00 per month for the five months her daughter is at home and $919.40 per month for the seven months her daughter is at school. Husband responds that the $919.40 should not be awarded to the wife because he is paying the daughter's college expenses.

Assuming he is paying those expenses, the award of $350.00 per month child support is clearly adequate and within the trial court's discretion. Coit v. Coit, 778 S.W.2d 344, 346 (Mo.App.1989).

Although husband has undertaken the obligation to pay for his daughter's college expenses, this obligation is not set out in the decree. We therefore enter the order the trial court should have entered. Burbes, supra, 739 S.W.2d at 585. We modify the decree under Rule 84.14 to provide as follows:

Respondent shall pay for the minor child all college tuition and room and board, said sum to total no less than $963.00 per month; said sums to be paid directly to the educational institution when due.

See, Toomey v. Toomey, 636 S.W.2d 313, 315-16 (Mo. banc 1982), cert. denied, 459 U.S. 1106, 103 S.Ct. 730, 74 L.Ed.2d 955 (1983).

For her fourth point wife contends that the trial court erred in disallowing the testimony of certain expert witnesses and restricting the testimony of other experts to factual observations. On June 2, 1988, five days prior to the first trial setting of June 7, 1988, wife filed her Second Amended Supplemental Answers to Interrogatories, in which she disclosed the names of nine additional individuals she intended to call as expert witnesses.

Husband filed a motion to quash the Second Amended Supplemental Answers and for an order denying the witnesses named therein the right to testify on the grounds that wife's answers were untimely under Rule 57.01(a) and Rule 32.6 of the Rules of Court of the Twenty-First Judicial Circuit.

On June 6, 1988, the presiding judge of the circuit heard these motions and ordered 1) that any doctor whose name had been disclosed prior to the filing of the Second Amended Supplemental Answers would be allowed to testify as an expert witness 2) that all doctors named for the first time in the Second Amended Supplemental Answers would be allowed to testify as fact witnesses, but not as expert witnesses and 3) that all other...