Osborne v. Osborne

• Court: Missouri Court of Appeals
• Writing for the Court: Before ULRICH; LOWENSTEIN
• Citation: Osborne v. Osborne, 978 S.W.2d 786 (Mo. App. 1998)
• Decision Date: 27 October 1998
• Docket Number: No. WD,WD
• Parties: Christie OSBORNE (Palma), Respondent, v. Garold F. OSBORNE, Appellant. 54285.

Page 786

978 S.W.2d 786

Christie OSBORNE (Palma), Respondent, v. Garold F. OSBORNE, Appellant.

No. WD 54285.

Missouri Court of Appeals Western District.

Oct. 27, 1998.

As Modified Nov. 24, 1998.

Lauri J. Laughland, Grandview, for Appellant.

James T. Cook, Kansas City, for Respondent.

Before ULRICH, C.J., and LOWENSTEIN and HOWARD, JJ.

LOWENSTEIN, Judge.

Following a two day trial and entry of a decree of dissolution, the husband, Garold Osborne (Husband) has appealed and presented eight points for consideration. Christie Osborne (now Palma), the respondent (Wife), and Husband had a tempestuous marriage and separation including physical abuse of Wife, an incident where Wife was locked out of the house while unclothed, as well as suicide attempts, affairs and continuing financial problems stemming, in part, from a construction business the two operated. There was little or no unencumbered marital property to distribute, and the total marital debt, a good part of which was owed to the Internal Revenue Service, was over $60,000.

The facts are further complicated by the ramifications of Husband's parents' (who are third-party respondents) efforts to help the couple financially. Two separate suits by the third-party respondents, one against Wife for eviction, and one against both Husband and Wife for recovery of money (some $30,000--$38,000) advanced to the couple, have been consolidated with this action. Also consolidated here is the Wife's suit against the third-party respondents for declaration of a trust relating to a piece of marital property.

The trial judge awarded Wife $750 a month in maintenance, $20,000 attorney's fees and the unimproved real property in Platte County, subject to her paying $6,107.21 to Husband's parents. Additional facts will be supplied in the discussion of Husband's points relied upon. Review is under Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The burden for demonstrating error in the decree is on the party challenging the decree. Woolridge v. Woolridge, 915 S.W.2d 372, 375 (Mo.App.1996).

I.

Husband states the trial judge erred by awarding Wife $750 per month in maintenance, based on his earnings and ability to pay. The parties were married in December 1985. This petition was filed October 1994. There were no children from this marriage, although Wife had custody of a child from a previous marriage. At the time of trial, Wife was working for Vanguard Airlines earning $7.25 per hour, resulting in a substantial monthly shortfall. Little or no property of any value was divided. In this point, Husband seems to say the trial court erred in awarding maintenance, § 452.335.1, RSMo 1994, and alternatively, the award was excessive under the relevant factors under § 452.335.2.

The court's finding and judgment was correct. Under the threshold test of .1, Wife lacked sufficient property, including marital property, to provide for her reasonable needs. Whitworth v. Whitworth, 878 S.W.2d 479 (Mo.App.1994). Likewise, under the oft-enumerated factors of .2, set out in the footnote, the amount of maintenance awarded here was appropriate under the statute. ¹ Wife, alone had made substantial payments on the parties' IRS tax obligations; Husband had paid nothing on this obligation. At the time of trial, Husband was living rent-free with his parents and also working either directly or indirectly for them for $20 an hour. His parents also supplied him with a truck for their construction work. Wife, who had a high school education, was attempting to be self-sufficient but was falling far short of that goal. She had been guilty of an extra marital affair, but sought to improve herself by setting a goal of attaining self-support by planning to go to nursing school. The court's maintenance award did not put her anywhere near paying her expenses, nor did it keep Husband from meeting his needs.

The trial court is given wide discretion in the award of maintenance. Wallace v. Wallace, 839 S.W.2d 354, 356 (Mo.App.1992). The court's decision to grant maintenance is affirmed. After considering the ten factors in .2, the award of $750 per month was not unreasonable, despite her extra-marital affair. Wife's reasonable needs exceeded her ability to meet those needs. She had a high school education and a limited work history during the ten year marriage. There was no income producing property awarded to her to make up the difference, and Husband had the ability to pay the amount of the award. He had made $40,000 two years prior to the dissolution and $38,000 a year later, and as mentioned above, was making $20 per hour and living with his parents at the time of trial. Monsees v. Monsees, 908 S.W.2d 812, 817--18 (Mo.App.1995). Under the standard of review and in consideration of the statutory factors, this court cannot find from the record that the court abused its discretion on this point. Allen v. Allen, 927 S.W.2d 881, 889 (Mo.App.1996).

II.

Husband, in two separate points, contends the award ordering him to pay $20,000 of Wife's attorney's fees was unwarranted in view of the statutory factors, the parties' financial condition, and further, that the award includes attorney time spent on litigation not a part of the dissolution action. The applicable statutory language is contained in § 452.355.1. which reads:

1. The court from time to time after considering all relevant factors including the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under sections 452.300 to 452.415 and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the other in his name.

The trial court has considerable discretion with regard to attorney's fees, the award is presumed correct and will be reversed only upon showing by the appellant of an abuse of discretion. Lee v. Lee, 967 S.W.2d 82, 87 (Mo.App.1998).

A.

Husband's first argument against the fee award is that he got most of the debts, he has little in the way of assets, and he did not prolong the litigation (he says most of the trial was taken up with Wife's evidence). Citing Kovacs v. Kovacs, 869 S.W.2d 789, 794 (Mo.App.1994), Husband asserts, "Very unusual circumstances must exist for the Court to justify deviating from the general rule that each party bears his own litigation expenses." This court in Ansevics v. Cashaw, 881 S.W.2d 247, 251 (Mo.App.1994), and the Eastern District in Burton v. Donahue, 959 S.W.2d 946, 949 (Mo.App.1998), have rejected use of "the unusual circumstances standard," in determining an award of attorney's fees in domestic relations cases. In both these later decisions the court observed there is no mention of a requirement of "very unusual circumstances" contained in the statutory language of § 452.355.1. This point is rejected.

B.

Husband's next argument states the $20,000 fee award included attorney time spent on legal matters not related to the dissolution proceeding, and therefore the amount of the judgment is subject to appellate scrutiny. § 452.355.1., supra; Hoover v. Hoover, 892 S.W.2d 818, 819 (Mo.App.1995). Specifically, he states much of Wife's attorney's time was for her defense against the third-party suits (Husband's parents actually filed two suits, one for collection of debts owed by Husband and Wife to them, and one to evict Wife from the Grandview home), as well as for Wife's action against Husband's parents with regard to the Platte County property. As previously mentioned, the debt collection suit against Husband and Wife was dismissed the morning of this dissolution trial.

Additional facts are now in order. There are two parcels of real estate which are entwined in the disposition. One is a 2.7-acre unimproved lot in Platte County, the other is the Grandview home the couple resided in until their separation.

PLATTE COUNTY PROPERTY

The Platte County property was deemed marital property. It was listed on Wife's forms as having a value of $40,000 or more, and was purchased by Wife for $22,500 prior to this marriage. She testified the property had a value of $70,000. Husband testified the property was worth $24,000. His father gave an estimate of $25,000. The property was unimproved, and non-income producing. The real estate had been used as collateral to obtain loans to supply money to the couple's business. In order to obtain loans, the property was transferred to both Husband and Wife. In 1991-92 the Internal Revenue Service was attempting to levy on the Platte County site to satisfy unpaid payroll tax due from Husband and Wife's construction framing business. The land had an outstanding loan balance of $6,100.

In February 1992, the Platte County property, which by then was also subject to foreclosure for nonpayment of real estate taxes, was deeded by the couple to Husband's parents, the third-party respondents, who paid off the loan--the understanding was that as soon as things were cleared up with the Internal Revenue Service liability, and the $6,107 repaid to Husband's parents, the property would be deeded back to Husband and Wife. Not believed by the court was the assertion that Husband's father would be allowed to sell the property and keep the $30,000--$38,000 (see infra) owed him by Husband and Wife. The trial court found that, "due to the close personal business and financial involvement" between Wife, Husband, and the third-party respondents, "there was a confidential relationship" between them "wherefrom an oral agreement arose that title would be reconveyed" to Husband and Wife when they paid the $6,107, and Husband's parents held title "by way of a resulting trust." The court determined the property to be marital, and awarded it to the Wife upon her payment of $6,107 to third-party respondents.

GRANDVIEW...