McCallister v. McCallister, No. 17067

• Decision Date: 14 May 1991
• Docket Number: No. 17067
• Citation: McCallister v. McCallister, 809 S.W.2d 423 (Mo. App. 1991)
• Parties: Wanda Gail Pingleton McCALLISTER, Petitioner-Respondent, v. Stanley Curby McCALLISTER, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 423

809 S.W.2d 423

Wanda Gail Pingleton McCALLISTER, Petitioner-Respondent, v. Stanley Curby McCALLISTER, Respondent-Appellant.

No. 17067.

Missouri Court of Appeals,

Southern District,

Division Two.

May 14, 1991.

G.H. Terando, Wilhoit, Edmundson, Terando & Welch, Poplar Bluff, for respondent-appellant.

James E. Spain, Keith D. Sorrell, Spain, Merrell and Miller, Poplar Bluff, for petitioner-respondent.

SHRUM, Judge.

In this domestic relations case, we must decide two questions: (1) whether the trial court erred in entering a decree of legal separation rather than dissolution when the wife failed to deny, by verified pleading or sworn testimony, the husband's allegation that the marriage was irretrievably broken and (2) whether the trial court erred in awarding maintenance of unlimited duration to the wife.

Because the wife did not deny under oath that the marriage was irretrievably broken, we have determined that § 452.320.1, RSMo 1986, is applicable and we remand for entry of an order of dissolution. We conclude the evidence and the law support the maintenance award and we affirm that portion of the judgment.

FACTS

The wife initiated this action with her verified petition for legal separation. Despite the requirement of § 452.310.2, the wife did not allege the marriage was irretrievably broken. In his verified responsive pleadings, the husband alleged the marriage was irretrievably broken, and he requested a dissolution. In an unverified response to the husband's pleadings, the wife denied the marriage was irretrievably broken.

At trial, the wife presented no evidence that the marriage was not irretrievably broken; neither attorney directly asked her about the irretrievable breakdown of the marriage. ¹ The husband testified that the marriage was irretrievably broken, and there was ample evidence to support the husband's assertion.

The trial transcript and the wife's medical records provide the following facts relevant to the issues on appeal. The McCallisters were married on October 16, 1983, and separated December 3, 1988. The husband is retired from the United States Army and receives a monthly pension of $773. He operates a combined grocery, gasoline, laundry, and rental business which provides him a gross income of $2,309. (The trial court awarded the business, subject to indebtedness, to the husband.)

At the time of trial the wife was employed as a part-time bookkeeper at a real estate firm and was attending a real estate school. She testified her take-home pay was $135.84 per week and she "sometimes" received $25 per week child support for a son born of a former marriage. ² The wife's income and expense statement listed her expenses at $1,051 per month.

The record contains much evidence about the wife's medical condition. In November, 1987, suffering from liver cancer, she underwent surgery at the medical center at Lackland Air Force Base, Texas. In a letter, the chief surgeon of the oncology unit at the Lackland medical facility described the surgery as successful but said that without "vigorous intervention" in the form of "additional radiotherapy treatments and possibly chemotherapy" the wife might not survive more than four months. He described the wife's prognosis at the time of surgery as "not bright" and said "the chances for a cure are very small."

The record reveals that "vigorous intervention" did prolong the wife's life. She returned to work in February 1988, but by April 1988 a pre-existing ulcer condition flared up and required treatment. The ulcer condition necessitated hospitalization in August 1988 and hospitalization and surgical treatment in November 1988.

The wife testified that because of the cancer she must undergo extensive testing every three months, each session requiring approximately two weeks hospitalization. One of the quarterly testing sessions occurred the week before trial and the wife had been told she was "in very good shape" and that no evidence of cancer had been found. Nevertheless, because of radiation and surgery, the wife still had numerous medical problems including hypoglycemia, potential "scarring down" of the liver causing bile duct blockage and severe sickness, necessity of sleeping in three- to four-hour increments because the radiation to her spine prevented staying in bed for an uninterrupted eight hours, the inability to do physical labor, and dietary restrictions.

Regarding her future, the wife testified her goal was to finish real estate school so that she could be independent and enjoy prolonged survival. She described herself as capable of holding a job and earning income. Her choice of real estate sales was motivated, in part, by her belief that such a job would enable her to work as her medical situation dictated.

The parties appeared to have a good marriage until the wife was diagnosed as having cancer. There was evidence that, following the wife's illness, the husband had been amorously involved with another woman, and he admitted that she moved in with him after the separation. There was substantial conflict between the parties in the months before separation, including at least one incident of physical violence directed toward the wife by the husband, threats by the husband to kill the wife and her son, and evidence that the husband removed the wife's name from bank accounts.

The trial court entered a decree of legal separation and awarded the wife maintenance of $550 per month. The court stated its maintenance award had no termination date but was subject to modification as provided by § 452.335.3. There is no challenge to the court's division of marital property or the order that the husband pay the wife's attorney fees.

ANALYSIS AND DECISION

Dissolution or Legal Separation

The husband contends the trial court erred in granting a decree of legal separation rather than dissolution because the wife did not, by verified pleading or sworn testimony, deny that the marriage was irretrievably broken. On this issue, the trial court concluded,

The [husband's] argument that a dissolution should be granted is based upon the failure of the [wife] to file a verified denial of the [husband's allegation that] the marriage was irretrievably broken and the fact that [the wife] made no efforts at trial to deny the allegation once [the husband] testified that the marriage was irretrievably broken and could not be preserved. [The husband] cites § 452.020 ³ to support this position. The court in reviewing the facts with the applicable statutes and case law, i.e., Colabianchi v. Colabianchi, 646 S.W.2d 61 (Mo.1983) finds no merit in [the husband's] position. Section 452.320.1 does not apply to this proceeding. Pursuant to § 452.305.2, a decree of legal separation is granted....

Resolution of the husband's first point requires our consideration of the following statutory provisions:

Section 452.305.1: The circuit court shall enter a decree of dissolution of marriage if ... (2) The court finds that there remains no reasonable likelihood that the marriage can be preserved and therefore the marriage is irretrievably broken....

Section 452.305.2: If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall grant the decree in that form.

Section 452.320.1: If both of the parties by petition or otherwise have stated under oath that the marriage is irretrievably broken, or one of the parties has so stated and the other has not denied it, the court, after considering the aforesaid petition or statement, and after a hearing thereon shall make a finding whether or not the marriage is irretrievably broken and shall enter an order of dissolution or dismissal accordingly.

Section 452.320.2: If one of the parties has denied under oath ... that the marriage is irretrievably broken, the court shall consider all relevant factors ... and after hearing the evidence shall (1) Make a finding whether or not the marriage is irretrievably broken....

We note the potential conflict between §§ 452.305.2 and 452.320.1. Where facts exist that would make § 452.320.1 applicable but one of the parties has requested a legal separation under § 452.305.2, the trial court, upon a finding of irretrievable breakdown, is faced with conflicting statutory directives: § 452.320.1 directs an order of dissolution and § 452.305.2 directs a decree of legal separation. Our supreme court has held that when the two provisions are in conflict, § 452.320.1 (amended in 1977) prevails over § 452.305.2 (enacted in 1973). Colabianchi v. Colabianchi, 646 S.W.2d 61, 63 (Mo.banc 1983). See also O'Neal v. O'Neal, 673 S.W.2d 126, 127 (Mo.App.1984).

At issue is the applicability to our facts of § 452.320.1. If § 452.320.1 applies and the trial court finds the marriage is irretrievably broken, Colabianchi requires dissolution rather than the legal separation the wife requested pursuant to § 452.305.2. The wife candidly admits that if her answer should have been verified, then the trial court, pursuant to § 452.320.1 and § 452.305.1, should have entered a decree of dissolution. The wife argues, however, that her denial of the husband's allegation of irretrievable breakdown did not need to be verified, and, therefore, her unverified denial renders § 452.320.1 inapplicable. If § 452.320.1 does not apply, her argument continues, the trial court properly ordered legal separation under § 452.305.2. ⁴ For the reasons that follow, we conclude § 452.320.1 contemplates a verified denial and, therefore, the section applies to the facts before us.

Citing In re Marriage of Dunn, 650 S.W.2d 638 (Mo.App.1983), the wife argues that the only purpose of verification is to provide jurisdiction to the trial court. We read Dunn to stand for the proposition that verification of a petition in a dissolution proceeding is a jurisdictional requirement; we do not see in Dunn any statement that jurisdiction is the only purpose of verification. Relying on Ellis v....