Merritt v. Merritt, 11632
| Decision Date | 07 May 1981 |
| Docket Number | No. 11632,11632 |
| Parties | Carl Glen MERRITT, Sr., Petitioner-Appellant, v. Rosalee MERRITT, Respondent. |
| Court | Missouri Court of Appeals |
Theodore M. Henson, Jr., Scott & Henson, Poplar Bluff, for petitioner-appellant.
Ralph R. Bloodworth, Jr., Bloodworth & Bloodworth, Poplar Bluff, for respondent.
This is an appeal from a judgment in a dissolution proceeding in which the trial court dissolved the marriage of the parties, awarded custody of the two minor children to petitioner-husband with reasonable visitation rights to respondent-wife, awarded respondent $5,500 alimony in gross and $450 attorney fees, awarded respondent a freezer and ironing board that were gifts from her mother, awarded petitioner all other personal property owned by the parties, and declared that a stipulation and property settlement agreement previously entered into by the parties "is hereby set aside and is not made a part of this decree."
The decree did not contain any findings of fact other than jurisdiction of the court to hear the suit, a finding that the marriage was irretrievably broken, the fact that the two children were born of the marriage, and that the stipulation and property settlement was not approved and was set aside.
On appeal, petitioner contends that the trial court erred in 1) awarding respondent $5,500 alimony in gross because, among other things, the trial court did not make any findings that respondent was unable to support herself through appropriate employment, or was the custodian of children whose condition or circumstances made it appropriate that she not be required to seek employment outside the home, 2) failing to find that the property settlement entered into by the parties on July 27, 1978 was unconscionable, which is the basis for setting aside or failing to approve a property settlement, and 3) awarding respondent's attorney $450 attorney fees, as there was no evidence that petitioner was financially able to pay the fee.
Section 452.335, RSMo 1978, provides that in a proceeding for dissolution of marriage, a court may award maintenance to either spouse (here designated as alimony in gross by the trial court) but only if it finds that the spouse seeking maintenance 1) lacks sufficient property, including marital property apportioned to him to provide for his reasonable needs; and 2) is unable to support himself through appropriate employment, or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
The trial court was not well served either by the quality or quantity of evidence from the parties on why respondent was entitled to maintenance. Regardless of such deficiency, the trial court was obligated to decide, and specifically announce that respondent lacked sufficient property, including marital property, to provide for her reasonable needs, and since respondent was not the custodian of minor children, that she was unable to support herself through appropriate employment. Abney v. Abney, 575 S.W.2d 842, 844 (Mo.App.1978). No such findings...
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