Price v. Price, WD

• Decision Date: 14 May 1996
• Docket Number: No. WD,WD
• Parties: In re Marriage of Joyce C. PRICE, Respondent, v. Thomas E. PRICE, Appellant. 51379.
• Court: Missouri Court of Appeals

Page 668

921 S.W.2d 668

In re Marriage of Joyce C. PRICE, Respondent, v. Thomas E. PRICE, Appellant.

No. WD 51379.

Missouri Court of Appeals,

Western District.

May 14, 1996.

Edward Frederick Ford, III, Kansas City, for Appellant.

Lauri J. Laughland, Kansas City, for Respondent.

Before SPINDEN, P.J., and LAURA DENVIR STITH and EDWIN H. SMITH, JJ.

EDWIN H. SMITH, Judge.

Thomas E. Price, appellant, appeals from a decree of dissolution of marriage. He raises two points on appeal. In Point I, appellant contends in four sub-points that: (A) the trial court erred in awarding $300 in monthly maintenance to Joyce C. Price, respondent, because appellant lacks the ability to pay the award and still meet his minimum needs; (B) the trial court erred in its award of child support in that its Form 14 calculation incorrectly included child care expenses and overstated his gross monthly income and failed to take into consideration his ability to pay; (C) there was no substantial evidence to support the trial court's ordering $1,800 in retroactive child support; and (D) the trial court abused its discretion by decreeing that debts allocated to appellant shall be nondischargeable in bankruptcy. In Point II, appellant claims that the trial court erred in failing to hold a hearing to determine his 1994 tax obligations and the value of his personal savings plan. We affirm in part and reverse and remand in part.

FACTS

The parties were married on May 1, 1981. On June 4, 1983, Jason T. Price was born and Justin L. Price was born on February 5, 1986. Respondent filed for divorce on May 3, 1994, and trial was held in December 1994. The trial court entered its decree of dissolution on May 31, 1995. They were awarded joint legal custody of their children and respondent received primary physical custody subject to appellant's visitation rights.

Items of marital property not in dispute on appeal were distributed in the following manner. Respondent was awarded the family residence (valued at $75,000 with $10,161 in equity), title to a 1988 pickup truck (valued at $2,875), title to a checking account at First Federal with a balance of $100 and miscellaneous items of marital property. Respondent also received thirty seven and one-half percent of appellant's retirement annuity pursuant to a qualified domestic relations order (QDRO). Appellant received title to a 1993 Chevrolet Cavalier (valued at $15,975 with approximately $5,000 in equity), title to a checking account at United Missouri Bank with a balance of $69 and miscellaneous items of marital property, including approximately $10,500 from a previous worker's compensation settlement.

Both parties are employed. Appellant is employed by General Motors and is a member of the UAW. He normally works 40 hours per week and earns a base hourly rate of $18.76. His normal work schedule is disrupted by periodic lay-offs, but he also receives a substantial amount of overtime work for which he is paid time and a half. Respondent obtained a two-year associate's degree prior to the marriage and is now working towards a bachelor's degree in education at the University of Missouri-Kansas City. She anticipates it will take her three and a half years to complete her education. In order to pay her tuition, books and some living expenses, she has received a one-time Pell grant of $862 and a Stafford loan of $5,500. While pursuing her degree, she plans to work 24 hours per week at Proctor

& Gamble where she earns an hourly rate of $10.50.

STANDARD OF REVIEW

This being a court-tried case, the trial court's decree must be affirmed on appeal unless there is no substantial evidence to support the decision, it is against the weight of the evidence, or it erroneously applies the law. Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Additionally, we defer to the trial court's determination of credibility, viewing the evidence and inferences therefrom in the light most favorable to the decree and disregarding all contrary evidence and inferences. Mehra, 819 S.W.2d at 353. "[A] trial court is free to believe or disbelieve all, part, or none of the testimony of any witness." Burkhart v. Burkhart, 876 S.W.2d 675, 678 (Mo.App.1994).

I.

Because appellant raises the issue of his ability to pay child support and maintenance, we begin by examining the financial circumstances of the parties. Through November 27, 1994, appellant's gross income from GM was $30,479. In addition to this sum, appellant also earned $6,000 from sub-pay and unemployment benefits for a year-to-date total of $36,479. ¹ Appellant estimates his monthly expenses to be $3,629. Although appellant's Form 14 calculations show a gross monthly income of $3,251, his actual gross monthly earnings were $3,316 through the first eleven months of 1994. The trial court, however, elected to accept respondent's Form 14 amount, which shows appellant's gross monthly income to be $3,600. ² This amount is the average of appellant's gross monthly income for the years 1992, 1993 and 1994.

Besides awarding appellant the items of marital property noted above, the trial court also ordered him to assume the following marital debts: Bank IV loan of $1,301; one-half of Visa balance, or $2,500; GMAC loan of $11,000; personal savings plan loans of $2,249; Discover balance of $2,371; 1994 personal property tax on the parties' vehicles; and respondent's attorney's fees of $1,000. In its decree, the trial court declared those debts to be nondischargeable in bankruptcy.

Respondent earns a gross monthly income of $1,092 and estimates her monthly expenses to be $3,500. In addition to awarding respondent the items of marital property set out above, the trial court also ordered respondent to assume the following marital debts: $1,500 Colorado Prime balance; one-half of the Visa balance, or approximately $2,500; $5,500 Stafford loan balance; and $66,249 remaining to be paid on the mortgage.

In his brief, appellant cites testimony given by respondent that during some months he has a net income of only $1,788. ³ Appellant uses this low monthly figure, which presumably occurs during a periodic lay-off, to argue that he cannot meet the court ordered monthly obligations of $1,541 ⁴ and still Assuming for the moment that appellant's net income amount is correct, he would have $247 after paying his court ordered obligations with which to pay his living expenses. However, the trial court did not accept appellant's net monthly income amount because low monthly earnings must be averaged with high monthly earnings. Given the nature of appellant's work, it is likely that during some months he will have a net income that is considerably more than $1,788 that will allow him to pay maintenance and child support as ordered. We cannot find from the record that the trial court abused its discretion in income averaging to ascertain appellant's gross monthly income of $3,600. Goodwin v. Goodwin, 746 S.W.2d 124, 126 (Mo.App.1988).

have enough remaining to meet his own reasonable living expenses.

A. MAINTENANCE

The trial court ordered appellant to pay $300 in monthly maintenance to respondent for a two-year period running from June 1995 to June 1997. Appellant argues that the award of maintenance was erroneous because compliance will prevent him from meeting his own reasonable needs. We disagree.

It is clear that the trial court has broad discretion in determining the amount and duration of maintenance. Hicks v. Hicks, 859 S.W.2d 842, 846 (Mo.App.1993). Appellate review is limited to determining whether the trial court abused its discretion. Id. at 846-47. Maintenance should not be disturbed on appeal unless it is " 'wholly beyond the means of the spouse who pays maintenance.' " Theilen v. Theilen, 847 S.W.2d 116, 123 (Mo.App.1992) (citation omitted).

Section 452.335.1, RSMo 1994, establishes a two step test for maintenance awards. First, the trial court must find that the party seeking maintenance lacks sufficient property, including marital property apportioned during the dissolution proceeding, to provide for his or her reasonable needs. Hicks, 859 S.W.2d at 846. Second, if the party seeking maintenance lacks sufficient property to meet his or her needs, the court then must determine whether the party's reasonable needs can be met through appropriate employment. Id. An important function of maintenance is that it should promote self-sufficiency by encouraging the recipient spouse to obtain any necessary education or training. Doerflinger v. Doerflinger, 646 S.W.2d 798, 800 (Mo. banc 1983). It is well settled that in determining the need for maintenance, a party need not expend marital property received in a dissolution proceeding to maintain an acceptable standard of living. Hicks, 859 S.W.2d at 846.

The record supports the fact that respondent lacks sufficient income and property to provide for her reasonable needs. The record further reflects that it is unlikely that respondent could meet her reasonable needs through appropriate employment. She is now working part-time, but even a full-time job at her current rate of pay would not significantly improve her ability to meet her reasonable needs. By returning to school, respondent is making constructive efforts to enhance her income potential. Such efforts should be encouraged in cases like this by providing temporary maintenance.

Once the trial court determines that a maintenance award is necessary in a given case, it must then set the amount and duration of maintenance after considering all the relevant factors found in § 452.335.2, one such factor being the ability of the spouse to pay maintenance. The § 452.335.2 factors are as follows:

(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently ...;

(2) The time necessary to acquire sufficient education or training ...;

(3) The...