Orange v. White, ED 103872

• Decision Date: 22 November 2016
• Docket Number: No. ED 103872,ED 103872
• Citation: 502 S.W.3d 773
• Parties: Hal Orange, Appellant, v. Jeanine R. White, Respondent
• Court: Missouri Court of Appeals

502 S.W.3d 773

Hal Orange, Appellant,

v.Jeanine R. White, Respondent,

No. ED 103872

Missouri Court of Appeals, Eastern District, DIVISION TWO.

FILED: November 22, 2016

Susan M. Hais, Dzenana Delic, Clayton, MO, for Appellant.

Patricia K. Susi, Katherine E. Henry, St. Louis, MO, for Respondent.

ROY L. RICHTER, Judge

H.O. ("Husband") appeals from the trial court's judgment and decree of dissolution awarding modifiable maintenance to J.W. ("Wife") in the amount of $350 per month. We reverse and remand with instructions.

I. Background

Husband and Wife were married on February 14, 2006. The parties had no children during the marriage and separated in December 2013. On March 26, 2014, Husband filed his Petition for Dissolution of Marriage. Wife filed her Answer and Counter Petition for Dissolution of Marriage on June 30, 2014.

From 2005 to 2010, Husband was a school teacher in the Riverview Gardens School System. After being laid off in 2011, Husband worked partially during 2012 and retired later that year. Following his retirement, Husband began receiving social security retirement benefits and benefits from the Public School Retirement System of Missouri.

Husband receives $1,844.36 monthly from the Public School Retirement System of Missouri and $1,547 from his social security retirement benefit for a total gross receipt of $3,391.36. Considering Husband's 2012 and 2013 tax returns, the court determined that his monthly income was $4,873.83. While Husband did not provide his income tax returns for 2014, the trial court did hear testimony from Husband and Wife regarding Husband's limited income in 2014 and prospectively.

Husband received unemployment compensation in 2012 and 2013, however, he stopped receiving unemployment compensation in 2013. Both parties testified that Husband's sole source of income since 2014 has been from his retirement and social security benefits. Despite this testimony, the trial court did not consider any 2014 financial information in its calculation of Husband's monthly income for maintenance purposes.

Husband is currently behind on his state and federal taxes, medical bills, and several credit card statements. The trial court deducted $500 from his submitted expenses for credit card payments, but did not include outstanding medical bills or state and federal taxes in its calculation of Husband's monthly expenses because the record did not reflect whether the expenses were regular or short term expenses.

Wife was diagnosed with breast cancer in 2009 and was deemed permanently disabled by the Social Security Administration. Consequently, she receives $1,671.90 monthly in social security benefits. Though she performed clerical work for 19 years, nerve damages have made her unable to move her arm or fingers on the right side of her body and has prevented her from finding appropriate employment. Noting her inability to work and upcoming housing expenses, the trial court determined that Wife's monthly expenses totaled $3,406.16.

After examining the parties' financial situations, the court determined Wife could not meet her financial needs and that Husband's income enabled him to meet his own needs while also providing assistance to Wife. The court ordered Husband to pay Wife $350 per month as modifiable maintenance. On November 19, 2015, Husband filed his Motion for Reconsideration of Findings of Fact, Conclusions of Law, and Partial Judgment and to Hear Additional Evidence and Request for Hearing. His motion was heard and denied. Husband now appeals.

II. Discussion

Husband raises three points on appeal. First, Husband claims that the trial court erred in including his social security and teacher's retirement benefits in its calculation of his income because the benefits are nontransferable and unassignable under Section 169.572 (RSMo. 2000 )¹ and the Social Security Act, 42 U.S.C. Section 407 (2000). He further argues the statutes prevent these benefits from being subject to maintenance.

Second, Husband alleges the trial court erred in awarding maintenance in the amount of $350 per month because the award was unjust, pursuant Section 452.335, and against the weight of the evidence in that the court failed to consider his current income when it only averaged his 2012 and 2013 income in determining the maintenance amount. Husband maintains that the income of those two years is not reflective of his current income and the trial court failed to consider that his expenses now exceed his current income.

Third, Husband argues the trial court erred in awarding Wife maintenance in the amount of $350 per month because it was unjust, pursuant Section 452.335 and against the weight of the evidence in that Wife is capable of earning sufficient income to meet her reasonable needs and the calculation of her housing expenses was based on conjecture.

A. Standard of Review

In an appeal from a court-tried civil case, the trial court's 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 applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Trial courts have considerable discretion regarding the amount of maintenance awarded. Ferry v. Ferry, 327 S.W.3d 599, 602 (Mo. App. E.D. 2010). "A trial court abuses this discretion when its ruling is clearly against the logic of the circumstances before the trial court and is so arbitrary as to indicate indifference and a lack of careful judicial consideration." Roche v. Roche, 289 S.W.3d 747, 757 (Mo. App. E.D. 2009) (citing Alberty v. Alberty, 260 S.W.3d 856, 860 (Mo. App. W.D. 2008) ). However, a maintenance award cannot stand without evidence to support it. Lindsey v. Lindsey, 336 S.W.3d 487, 497 (Mo. App. E.D. 2011) (citing Brooks v. Brooks, 957 S.W.2d 783, 788 (Mo. App. W.D. 1997) ).

B. Inclusion of Social Security and Teacher's Retirement Benefits in Income

Husband's first point on appeal contends that the trial court erred in awarding maintenance because his income only included his teacher's retirement and social security. Husband maintains that the trial court cannot consider teacher's retirement and social security benefits in its calculation of maintenance because the benefits are separate and non-divisible property under the Social Security Act and Section 169.572.

Husband maintains that the Social Security Act's limitation of subjecting social security benefits to "execution, levy, attachment, garnishment, or other legal processes" prevents the benefits from being considered in dissolution of marriage proceedings. Husband further claims that because the benefits are his sole source of financial support and constitute non-marital and non-divisible assets, they may not be considered in an award of maintenance. We disagree.

Section 452.335 outlines the factors considered when determining an award for maintenance:

(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;

(2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;

(3) The comparative earning capacity of each spouse;

(4) The standard of living established during the marriage;

(5) The obligations and assets, including the marital property apportioned to him and the separate property of each party;

(6) The duration of the marriage;

(7) The age, and the physical and emotional condition of the spouse seeking maintenance;

(8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;

(9) The conduct of the parties during the marriage; and

(10) Any other relevant factors.

The inclusion of "any other relevant factors" illustrates the trial court's broad discretion in evaluating the parties' financial situation when calculating maintenance awards. This Court has specifically considered social security benefits as a relevant factor when granting maintenance orders. Hogan v. Hogan, 796 S.W.2d 400, 407 (Mo. App. E.D. 1990). While agreeing that social security benefits are unassignable as marital or separate property, the court in Hogan expressly stated that the "benefits derived from social security are economic factors to be considered, along with other factors, in the disposition of marital property and the award of allowances, including maintenance." Id.

Pursuant Section 169.572"no court shall divide or set aside any federal old-age, survivors or disability insurance benefit provided to any party pursuant to the federal Social Security Act, 42 U.S.C. Section 200 et seq., in any proceeding for dissolution of marriage." The Social Security Act, 42 U.S.C. Section 407 notes, "the rights of any person to receive social security benefits shall not be transferable, assignable, at law or in equity, and none of the money payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process ...."

The Supreme Court examined this statute's use of the "other legal process" factor and explicitly noted that it should be applied restrictively. Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 123 S.Ct. 1017, 1019, 154 L.Ed.2d 972 (2003). The Court stated that when a general term, like other legal process, follows a list of more specific terms, such as execution, levy, attachment, and garnishment, the general term should be "construed to embrace only objects similar to those enumerated by the specific words." Id.

Here, the process of maintenance differs from the statute's expressly stated processes of execution, levy, attachment, and garnishment. The maintenance award is not garnished, executed, levied, or attached directly to Husband's benefits;...