Nichols v. Nichols

• Decision Date: 14 March 2000
• Citation: 14 S.W.3d 630
• Parties: (Mo.App. E.D. 2000) . Robert Kenneth Nichols, Respondent, v. Alice Faye Nichols, Appellant Case Number: ED75921 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

14 S.W.3d 630 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Robert Kenneth Nichols, Respondent, v. Alice Faye Nichols, Appellant

Case Number: ED75921

Missouri Court of Appeals Eastern District

Handdown Date: 03/14/2000

Appeal From: Circuit Court of St. Louis County, Hon. David Lee Vincent

Counsel for Appellant: Merle Silverstein and Jeffrey Cohen

Counsel for Respondent: James R. Hanlin

Opinion Summary: The wife appeals from the trial court's judgment and decree of dissolution. The wife challenges the provisions of the decree (1) ordering the wife rather than the husband to pay the mortgage debt on the marital residence which the wife was awarded, and (2) denying any award of maintenance to the wife to meet her reasonable needs. The wife argues that in determining the need for maintenance, her "reasonable needs" should include expenses for care and support of the parties' two grandchildren who had lived with the parties for many years prior to their separation and for whom she is now legal guardian.

AFFIRMED.

Division Three holds: (1) In view of the substantial assets the wife received in the overall division of marital property, and the income she could derive therefrom, the court did not abuse its discretion in apportioning the mortgage debt on the marital residence to the wife. (2) Given the assets that the wife was awarded and the income she could derive therefrom, when measured against the evidence regarding the amount of her own reasonable needs, the court did not abuse its discretion or misapply the law in denying maintenance. In determining the need for maintenance by a requesting spouse, the needs of the parties' grandchildren residing with that spouse are not to be considered.

Opinion Author: Richard B. Teitelman, Presiding Judge

Opinion Vote: AFFIRMED. Ahrens and Mooney, JJ. concur.

Opinion:

Wife appeals from the judgment and decree dissolving the parties' marriage. Wife claims the trial court erred (1) in its distribution of marital property by ordering Wife rather than Husband to pay the mortgage on the marital residence, and (2) in failing to order Husband to pay maintenance to Wife to meet her reasonable needs which, she argues, should include the care and support of the parties' two grandchildren who had lived with the parties prior to their separation. We affirm.

FACTUAL BACKGROUND

The parties were married in the summer of 1964. They separated in October of 1997. Husband filed a Petition for Dissolution of Marriage approximately two months after the separation. Trial was held on December 8, 1998. At the time of the hearing, Husband and Wife were 59 and 57 years old, respectively. The parties adopted two female children during their marriage, both of whom were in their thirties at the time of the hearing.

Wife met Husband while he was working with the City of St. Louis Police Department. Husband has done police work his entire career, beginning in the City of St. Louis, where he worked until he retired in 1985. Thereafter he was employed by the Maryland Heights Police Department, where he continues to work. After the parties were married Wife worked at Monsanto from 1964 until March of 1996, when she retired. Wife's career at Monsanto consisted of secretarial work at first, but over the years developed into a very highly specialized area of paralegal work involving international patent applications.

In 1972 the parties purchased the marital home in Maryland Heights. The trial court found the residence had a fair market value of $160,000 with an outstanding mortgage debt of approximately $64,000, for a net equity value of $96,000.

In 1987, using marital assets, the parties purchased a vacant 5-acre lot on Mack Avenue in Maryland Heights for $59,500. In 1988 the parties purchased two adjacent lots on Hedda Avenue in Maryland Heights, one vacant and one with a house on it; the two parcels were purchased together for $50,000. The parties took out an $80,000 mortgage loan on their marital residence; $30,000 of the mortgage loan went to improvements of the marital residence itself and the remainder was used to purchase the properties on Hedda. At the time of trial the balance on the marital residence mortgage loan had been reduced to $64,000, and the house on Hedda produced a gross rental income of $475 per month. The court found the combined fair market value of the three properties located on Hedda and Mack Avenue to be $127,000.

It is undisputed that Husband engaged in significant marital misconduct. At trial Husband admitted that he had engaged in a longstanding affair with another woman for approximately three-and-one-half years prior to the time of the hearing. When Husband separated from Wife, approximately 14 months prior to the trial hearing, he began residing with the other woman.

At the time of trial Husband's net (after-tax) employment income was $2926 per month. Additionally, he received $1054 per month net income from his City of St. Louis retirement account, and $475 per month in gross rental income from the house on Hedda. The evidence showed that his total net monthly income was, at a minimum, approximately $4200. He testified to living expenses of approximately $2500 per month. By far the biggest single expense item listed in his Income and Expense Statement was $1250 per month for recreation, which was for expenses related to his hobby of racing cars. Wife testified that her net (after-tax) income was approximately $3300 per month, consisting entirely of investment income from her retirement accounts. Wife further testified that her reasonable expenses, as of the time of trial, were approximately $5600 per month.

Those expenses included substantial sums for care and support of the parties' two granddaughters, Jennifer and Ashley. At the time of trial, these two grandchildren were ages 15 and 11 respectively. The youngest, Ashley, had resided with the parties (prior to their separation) all of her life, and the oldest, Jennifer, for approximately twelve years. The grandchildren's mother occasionally resided with the parties during that time span, but she had intermittent criminal problems and drug problems, and at the time of the hearing had criminal charges and sentencing pending against her arising from drug use. During the time that the grandchildren had resided with the parties, in addition to providing the primary care and parenting for the grandchildren, the parties provided virtually all of the financial support for the grandchildren. Following the separation, Wife was granted letters of guardianship for the two girls by the probate court on June 1, 1998. At the time of the dissolution hearing there was no realistic expectation of obtaining any future financial support for the grandchildren from either of their parents; Wife testified that she expected to raise the grandchildren, including sending them to high school and college. Wife stated that she was seeking an award of maintenance from Husband which included "the expenses I have with the grandchildren," which she testified had been a part of the couple's standard of living. The final amended judgment and decree ordered that no maintenance was to be paid by either party.

The court made findings with respect to the division of marital property. First, the court awarded Wife the marital residence, finding its fair market value to be $160,000, with a mortgage balance of approximately $64,000, resulting in a net value of $96,000, and ordered Wife to pay the outstanding mortgage. Husband was awarded the properties on Mack Avenue and Hedda, which were free and clear of any indebtedness, and cumulatively valued by the court at $127,000. The parties were each awarded their respective retirement accounts. The court found that Husband's retirement accounts, including his 401(k) Plan, his 457 Plan and his St. Louis Police retirement fund, were valued at $576,457. Wife's retirement fund from Monsanto was valued at approximately $866,000. The court found that that fund, together with IRA and credit union accounts, totaled $922,346. Miscellaneous other assets and items of personalty, most of relatively modest value, were divided among the parties. In total, Wife was awarded $1,027,476 in assets, and Husband was awarded $720,105 in assets---reflecting a division of approximately 59% to Wife and 41% to Husband. Additionally, the trial court ordered Husband to pay Wife's attorneys fees in the amount of $6,500.

Wife appeals, challenging the trial court's distribution of marital property insofar as it required her to pay the mortgage debt on the marital residence, and also challenging the court's denial of her request for maintenance.

DISCUSSION

We review the trial court's judgment in a dissolution decree pursuant to the general principles set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc. 1991). The judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or misapplies the law. Id. We view the evidence and the reasonable inferences therefrom in the light most favorable to the decree. Id. If there is a conflict in testimony, we defer to the trial court's determination of the credibility of the witnesses. In re Marriage of Julian, 868 S.W.2d 182, 184 (Mo. App. E.D. 1994).

In her first point on appeal, Wife contends that the trial court erred in ordering her to pay the mortgage on the marital residence, in that the mortgage was obtained by the parties to purchase income-producing rental properties," which were subsequently awarded to Husband free and clear of any indebtedness.¹ Wife argues that the court failed to properly consider several of the factors set forth in section 452.330.1 RSMo Cum. Supp. 1998, and that it is unjust for her to bear the burden of the home mortgage when the...