Nelson v. Nelson

• Decision Date: 09 December 1986
• Docket Number: No. WD,WD
• Citation: 720 S.W.2d 947
• Parties: Howard NELSON, Jr., Respondent, v. Evelyn I. NELSON, Appellant. 37384.
• Court: Missouri Court of Appeals

Page 947

720 S.W.2d 947

Howard NELSON, Jr., Respondent, v. Evelyn I. NELSON, Appellant.

No. WD 37384.

Missouri Court of Appeals,

Western District.

Dec. 9, 1986.

Catherine P. Logan, Kansas City, for appellant.

Michael J. Albano, John W. Dennis, Jr., Paden, Welch, Martin, Albano and Graeff, Independence, for respondent.

Before SHANGLER, P.J., and DIXON and LOWENSTEIN, JJ.

SHANGLER, Presiding Judge.

The marriage of Howard Nelson and Evelyn Nelson, contracted in 1949, severed by divorce and then recontracted in 1957, was dissolved in 1985. The pleadings of the principals acknowledge that the marriage was irretrievably broken. The two children born to them were by then emancipated. The court set apart to the wife certain nonmarital property, and then divided to the spouses the marital property. The value of the property divided to the husband, as recited and found in the judgment, was $203,908.58, and to the wife--$164,606.84. The court awarded the wife an attorney fee of $7,697.00, and maintenance in gross in these terms:

IT IS FURTHER ORDERED, ADJUDGED and DECREED that Petitioner [husband] shall pay Respondent [wife] as maintenance-in-gross the sum of $49,500.00, payable in installments of $1,500.00 per month, with the first such payment to be due on the 1st day of June, 1985 and on the same date each month thereafter until fully paid, same to terminate earlier in the event of the death of either party or remarriage of Respondent [husband]. [emphasis added]

The wife appeals and asserts as error that (1) the statutes do not allow a court to order that a maintenance in gross award terminate at the death of either spouse or the remarriage of the obligee spouse, and (2) that the self-sufficiency of the wife was not a foreseeable event, and hence the award should have been for indeterminate maintenance as well as for the sum in gross.

The couple married when he was 27 years of age, and she, 23. The husband was 62 at the time of the dissolution, and the wife, 58. At the time of the marriage, the husband was a student at the school of dentistry at Howard University in Washington, D.C., and the wife, who had already earned an undergraduate degree from Howard, was employed. The tuition for dental school was paid for by a governmental benefit, but the husband nevertheless worked part-time to supplement that aid. The wife worked full-time until the husband completed dental school in 1954--except for a period of pregnancy. When the governmental aid to the husband was depleted, the wife's mother assumed the care of the child so that the wife could resume employment to support the family. Upon graduation from the professional school in 1954, the husband went to California to seek licensure, and then to Texas, where he found a position as a dentist. They divorced in 1957, and remarried within the year. In that interim, the wife earned a master's degree in education and taught school in St. Louis. A second child was born to the remarriage, they removed to Kansas City, and the husband established a successful dental practice. The wife taught in the public schools from the remarriage in 1957 to 1977. The couple attained, and practiced, a comfortable mode of life.

The husband was a sole practitioner for twenty years, until 1979, when he formed a professional corporation--the Nelson-Wren Dental Associates, Inc.--in partnership with another dentist. The wife performed some financial services for the professional corporation and also kept the family books. In 1977, the wife retired from teaching to attend law school, completed the course, but did not pass the Missouri bar examination after two attempts. There was evidence to explain that the failure was due in part to a malady, later diagnosed as carpal tunnel syndrome, which affected the use of both of her hands. That condition was later treated surgically. There was evidence also that the wife suffered from osteoarthritis to her hands, and also from a species of rheumatoid arthritis. She then attempted a clothes business, but was unsuccessful. She then went to work, but without salary, in the office of her sister and daughter, both lawyers. She discontinued that occupation in 1983, shortly before the surgery to her hands.

The suit for dissolution was the initiative of the husband. He acknowledges that both spouses contributed to the accumulation of assets, and that an equal division of the marital property would be equitable. The husband contests any award for maintenance. It was his expectation to retire at age 65--thirty-three months from the time of the hearing. The husband enjoyed a gross income of $6,000 per month from the professional corporation, which reduced to $3,693.83 per month in net terms. The wife removed to Washington, D.C., at the separation, and lived with a sister. She was employed there as a lobbyist for six months at $1,200 per month, and the continuation of that work relationship depended upon her success during that trial period. It was her objective to seek licensure to practice law in Virginia, but had not yet taken the bar examination since she did not yet reside there.

An asset of the marriage was the pension and profit sharing plans established by the Nelson-Wren professional corporation. That property was divided equally--$102,291.85 to each spouse--by the judgment. The normal retirement age under the terms of the plans is 65 years. The husband attains that age in February of 1988, and the benefits are then payable. The maintenance payments ordered by the court extend over 33 months--the period from the date of the judgment of dissolution, June of 1985, until the 65th birthday of the husband, February of 1988. The wife, by that date, will be 60 years of age and can draw on the asset without penalty--since the benefit accrues to her at age 59 1/2 (an age already attained in October of 1986). There was evidence that $100,000 of the retirement asset used then by the wife to purchase an annuity would yield to her $20,500 per annum over her life expectancy of 22.5 years.

The spouses accede to the terms of judgment, except for the award of maintenance. At the trial, the wife requested an award of $2,000 per month for maintenance until she passed the Virginia bar and obtained employment as an attorney. The award of the court was, as we note, a gross sum of $49,500, payable in installments of $1,500 per month [that is, for 33 months], unless terminated earlier by the death of either spouse or the remarriage of the wife. On appeal, the wife contends that the strictures of prior death or remarriage the award imposes as terms of judgment are not valid in law. She contends also that only an award for indefinite, modifiable maintenance, as well as the definite [in gross], unmodifiable maintenance, may be properly entered under the evidence. The husband does not contest the award of gross maintenance as entered.

The court rendered neither findings of fact nor conclusions of law, therefore the judgment does not articulate the statutory ground for the order of maintenance as formulated and entered. The spouses accede that the award was designated, and designed, as maintenance in gross. The wife argues, however, that the stricture the award imposes--that it terminate upon the remarriage of the wife or death of either party--contradicts the statute law as well as the essential attributes of such a judgment. A decree of maintenance in gross, the wife argues, is empowered by §§ 452.080 and 452.335, RSMo 1978. Our decisions under these statutes, she says, attribute two distinctive characteristics to a maintenance in gross judgment: such an award is not subject to modification, and vests in favor of the obligee. That is to say, such an award is reviewable only by direct appeal, and constitutes an obligation which survives the death or remarriage of the obligee spouse, and constitutes a general lien against the realty of the obligor spouse. Thus, she concludes, the terms of an award of maintenance in gross which impose contingencies upon full payment deny to a spouse the unimpaired benefit these statutes sanction.

The enactment of the Dissolution of Marriage Act in 1974 worked an essential repeal of the predecessor Divorce Law, except for intermittent sections. Section 452.080 of the Divorce Law remained intact. It provided then, as now:

Upon a decree of divorce in favor of the wife, the court may, in its discretion, decree alimony in gross or from year to year. When alimony is decreed in gross, such decree shall be a general lien on the realty of the party against whom the decree may be rendered, as in the case of other judgments.

A decree of divorce, and hence of alimony, issues under § 452.080, but only to a wife--an innocent and injured wife. Adkins v. Adkins, 325 S.W.2d 364, 367[2-4] (Mo.App.1959). A decree of dissolution under new §§ 452.300 and 452.310 issues not on fault, but on a marriage irretrievably broken, and maintenance issues to a spouse under § 452.335--wife or husband--although neither innocent nor injured. ¹ Schnitker v. Schnitker, 646 S.W.2d 123, 125 (Mo.App.1983). It is that anomaly between the virtual no-fault premise of the new enactment and the anachronistic vestige of the fault premise of retained § 452.080 which prompted our supreme court in Doerflinger v. Doerflinger, 646 S.W.2d 798 (Mo. banc 1983), to comment that the nonrepeal of § 452.080 was "inexplicable." Id. at 800, n. 3. The court completed the comment with the declaration that, although § 452.080 "remains as authority to award alimony in gross," since "under § 452.080, an award of periodic alimony or alimony in gross may only be made to the wife and then only if she is the injured and innocent party," it would be "a rare situation in which this section would ever be utilized." Id. It is explicit in Doerflinger that § 452.080 is defunct as a basis to adjudicate maintenance, and that such an award--whether in the form of periodic maintenance of indefinite duration or as...