Nieters v. Nieters, 59228

• Decision Date: 10 September 1991
• Docket Number: No. 59228,59228
• Citation: Nieters v. Nieters, 815 S.W.2d 124 (Mo. App. 1991)
• Parties: In re the Marriage of Russel J. NIETERS, Petitioner-Respondent, v. Gayle E. NIETERS, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 124

815 S.W.2d 124

In re the Marriage of Russel J. NIETERS, Petitioner-Respondent, v.Gayle E. NIETERS, Respondent-Appellant.

No. 59228.

Missouri Court of Appeals,

Eastern District,

Division One.

Sept. 10, 1991.

Patrick O. Boyle, St. Louis, for respondent-appellant.

Pulos, Blankenship & Jianakoplos, P.C., Thomas A. Spoon, St. Louis, for petitioner-respondent.

PUDLOWSKI, Presiding Judge.

Wife, Gayle Nieters, appeals the trial court's dissolution of marriage decree that was modified in response to husband, Russell Nieter's, motion to amend the judgment.We reverse and remand.

Husband filed his verified petition for dissolution of marriage on June 12, 1989.The petition stated husband and wife separated around November, 1988, and there was no reasonable likelihood the marriage could be preserved.Based upon wife's default and failure to answer, an initial decree of dissolution was entered on November 3, 1989.This initial decree incorporated a separation agreement signed by both husband and wife.The separation agreement contained provisions for child custody, visitation rights, child support, division of marital property, and other issues.

On November 29, 1989, wife filed a motion for new trial contesting the dissolution because the separation agreement was coerced.On December 1, 1989, the trial court set aside the initial decree of dissolution.The matter was placed on the contested docket and scheduled for hearing.

Wife filed her answer to husband's petition on May 4, 1990, denying that the marriage was irretrievably broken.Wife's answer requested no affirmative relief, but only prayed that husband's petition be dismissed.

On September 19, 1990, a trial was held in the St. Louis County Circuit Court.At trial, husband testified that the couple had been separated since September, 1988.He also testified concerning the problems the couple had during the marriage and his current relationship with a woman named Cindy Yates.Wife testified that husband left in October, 1988, and that the marriage was not irretrievably broken.She also stated that there were differences about how the children should be raised and that she donated some money she earned to tele-evangelists.Both parties testified concerning their property, children, and incomes.

On September 25, 1990, the trial court entered a decree dissolving the marriage of the parties, dividing the marital property, awarding primary custody of the minor children to wife, and awarding temporary custody and visitation to husband.The trial court also awarded wife child support in the amount of $360 per month per child, maintenance in the amount of $150 per month, and attorney's fees in the amount of $1,200.

Husband timely filed an amended motion to amend judgment or in the alternative motion for new trial on October 3, 1990.He alleged that the trial court improperly awarded wife maintenance and attorney's fees because wife sought no relief for these in her pleadings and no evidence was presented to the court on these issues.On October 23, 1990, the trial court sustained husband's motion in part by striking wife's award of maintenance from the decree.The trial court denied husband's motion with respect to the attorney's fees.

On October 24, 1990, wife filed her motion to amend judgment or in the alternative to order a new trial alleging that husband had not provided sufficient evidence to sustain a finding that the marriage was irretrievably broken.The trial court denied wife's motion.From this denial wife appeals the orders of the trial court.

Under the Missouri Dissolution of Marriage Statute§ 452.320.2, RSMo 1986, when one party denies that the marriage is irretrievably broken, the court after considering all the relevant factors and hearing the evidence, must be satisfied that petitioner has established one of the following five facts in order to find that the marriage is irretrievably broken:

(a) That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b) That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c) That the respondent has abandoned the petitioner for a continuous period of at least six months preceding the presentation of the petition;

(d) That the parties to the marriage have lived separate and apart by mutual consent for a continuous period of twelve months immediately preceding the filing of the petition;

(e) That the parties to the marriage have lived separate and apart for a continuous period of at least twenty-four months preceding the filing of the petition.

Section 452.320.2(1), RSMo 1986.The trial court is not required to make specific findings of fact warranting dissolution.Busch v. Busch, 639 S.W.2d 864, 865(Mo.App.1982).Although fact issues are deemed to accord with the result when no findings of fact are requested, Kaczmarczyk v....