Newman v. Newman, 51086

Decision Date07 October 1986
Docket NumberNo. 51086,51086
Citation717 S.W.2d 568
PartiesC. Frances NEWMAN, Appellant, v. Fred D. NEWMAN, Jr., Respondent.
CourtMissouri Court of Appeals

Alisse C. Camazine, Daniel P. Card, II, St. Louis, for appellant.

Thomas M. Blumenthal, Susman, Schermer, Rimmel & Parker, St. Louis, for respondent.

CRIST, Judge.

Wife appeals from a maintenance award of $500 per month for sixty months, from the nondistribution of marital debts, and from the denial of attorney fees and costs. We affirm.

Wife was granted a dissolution after twenty-three years of marriage and three children. The trial court awarded wife maintenance of $500 per month for sixty months. Husband was awarded custody of the two minor children. No child support was ordered. The parties divided the marital property prior to the date of dissolution. There is no appeal as to custody, child support, or property division.

On wife's request, the trial court made findings of fact. The court found "the testimony of respondent [husband] more believable and credible and petitioner's [wife's] testimony ... incredible and unworthy of belief." We give deference to the trial court's determination of witness credibility. Hoffmann v. Hoffmann, 676 S.W.2d 817, 826 (Mo. banc 1984); and Busby v. Busby, 669 S.W.2d 597, 599 (Mo.App.1984).

Wife, in her first point relied on, asserts the prospective termination of maintenance after sixty months is in error because there was no evidence she would be able to support herself at that time. In her second point relied on, she claims the award of $500 is insufficient because (1) she cannot earn enough to meet her needs while husband can afford to pay more maintenance, and (2) on the amount awarded, her standard of living will diminish.

The trial court has discretion in amount and duration of maintenance awarded as long as the statutory factors are considered. Section 452.335.2, RSMo (1978); Doerflinger v. Doerflinger, 646 S.W.2d 798, 800 (Mo. banc 1983). The evidence supports finding wife was capable of self-support. Prior to the marriage wife supported herself by full-time employment. During the marriage she continued her education, including training as a color consultant. Although, not employed during most of the marriage, wife twice worked outside the home for short periods, and she did some color consulting work from home. Wife, now 44 years old, has completed training at the Wang Word Processing Academy and can do both Wang and IBM word processing. Wife has been seeking full-time work and accepting word processing jobs through three temporary agencies. She is paid as much as $6 per hour through the agencies and has worked as long as several months at a single job. During the eighteen months prior to the dissolution, wife went on five interviews through these agencies, and independently responded to around twenty newspaper advertisements.

To make a maintenance award of limited duration there must be, at the time of trial, evidence or a reasonable probability, maintenance will not be needed upon termination. Blount v. Blount, 674 S.W.2d 612, 614 (Mo.App.1984); and Vogt v. Ketzner, 634 S.W.2d 583, 583 (Mo.App.1982). Wife maintains that there is no evidence that in five years she will be self-supporting and employed full-time. However, wife has an affirmative duty to seek full-time employment. In re Marriage of Goodding, 677 S.W.2d 332, 337 (Mo.App.1984). And, husband should not always have to wait and seek modification when wife accepts a job and becomes self-sufficient. Steinmeyer v. Steinmeyer, 669 S.W.2d 65, 67 (Mo.App.1984).

The evidence of wife's training and limited job seeking, supports the trial court's finding that she "is fully capable of supporting herself through appropriate full-time employment," in spite of her not doing so prior to the dissolution. See Lampe v. Lampe, 689 S.W.2d 768, 769 (Mo.App.1985). If there is any rational basis to support the determination of future self-sufficiency, the order of limited duration maintenance should be affirmed. Hutchins v. Hutchins, 687 S.W.2d 703, 706 (Mo.App.1985).

The standard of living established during the marriage was high. However, previous standard of living is not the same as reasonable needs; it is only a factor in determining maintenance. Brueggemann v. Brueggemann, 551 S.W.2d 853, 857 (Mo.App. banc 1977). Here the standard of living was artificially high as evidenced by the debts incurred during the marriage. Since wife's marital standard of living was achieved, in part, through thriftlessness, its weight in determining appropriate maintenance is diminished.

Husband, a real-estate...

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11 cases
  • Thomas v. Thomas, WD
    • United States
    • Missouri Court of Appeals
    • March 30, 1999
    ...resources of the parties, the merits of the case and the actions of the parties during the pendency of the action. Newman v. Newman, 717 S.W.2d 568, 570 (Mo.App.1986). A trial court is given considerable discretion in the award of fees, and is considered an expert on the necessity, reasonab......
  • Marriage of Lewis, In re
    • United States
    • Missouri Court of Appeals
    • April 2, 1991
    ... ...         Jerry L. Redfern, Richard L. Schnake, Neale, Newman, Bradshaw & Freeman, Springfield, for respondent-appellant ...         PREWITT, Judge ... ...
  • Marriage of Torix, In re
    • United States
    • Missouri Court of Appeals
    • October 29, 1993 an effort to become self-supporting as soon as possible. Eckstein v. Eckstein, 748 S.W.2d 945, 947 (Mo.App.1988); Newman v. Newman, 717 S.W.2d 568, 569 (Mo.App.1986). In the instant case, Wife had applied for employment at only two locations in the three and one-half years between the se......
  • Marriage of Welch, In re, 16718
    • United States
    • Missouri Court of Appeals
    • September 18, 1990
    ...debts and does not commit error when it fails to do so. Feinstein v. Feinstein, 778 S.W.2d 253, 259 (Mo.App.1989); Newman v. Newman, 717 S.W.2d 568, 570 (Mo.App.1986). Yet, allocation of marital debts is frequently said to be a commendable practice which serves to eliminate future dissentio......
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