Raines v. Raines, 39415

• Decision Date: 29 May 1979
• Docket Number: No. 39415,39415
• Citation: 583 S.W.2d 564
• Parties: Paula RAINES, Appellant, v. Loren K. RAINES, Respondent.
• Court: Missouri Court of Appeals

Page 564

583 S.W.2d 564

Paula RAINES, Appellant, v. Loren K. RAINES, Respondent.

No. 39415.

Missouri Court of Appeals, Eastern District, Division One.

May 29, 1979.

Wion, Burke & Boll, Robert S. Moss, Clayton, for appellant.

V. Jack Muehlenkamp, Dellwood, for respondent.

SMITH, Judge.

Wife appeals from a judgment in a dissolution of marriage case. Specifically, she attacks the court's (1) award of maintenance, (2) award of child support, (3) award of attorney's fees and (4) order providing for temporary custody of the minor child with the husband. Respondent husband has filed no brief in this court.

The wife was eighteen at the time of marriage, the husband twenty. The parties were married for fifteen months before their initial separation and eighteen months before their final separation. The minor son was less than a year old at the time of separation and two years old at the time of the decree of dissolution. During the eighteen months of the marriage prior to separation, the husband held about six different jobs. Wife was not employed. The family lived in a $160 per month apartment; there was frequently a shortage of food; husband illegally drew unemployment compensation while he was working in order to maintain the family standard of living. While they were living together the wife notified authorities of her husband's illegal conduct. As a result he began paying back to the State $2300 in improperly received benefits and at the time of hearing still owed the State $600. Approximately six months before the hearing (but after separation) husband began employment at the Crysler plant in St. Louis County at a gross pay of $295 per week, and a net of $210. He frequently worked overtime and on some occasions made as much as $500 gross per week. In the six month period of employment before the hearing the husband was off two weeks for plant holiday, was laid off three or four weeks for changeover, and was on sick leave for six or more weeks. When on leave husband would draw $100 per week compensation much of which was used to pay back his unemployment compensation debt. Husband's income and expense statement showed regular monthly and personal expenses of approximately $700.

Wife had no income from the time of separation until the hearing except for $100 per month aid to dependent children. She is a high school graduate with some college work, in good health, can type 65 words a minute and can take dictation from a machine. She made some efforts to obtain employment after separation but these efforts could be considered minimal and were only indefinitely and generally described. She did work part time at a fast food restaurant but quit that employment because the pay ($40 a week) was too low. She plans to enroll in a six year college course to obtain a secretarial degree although her information on this program was based solely upon a telephone call to a junior college. Her income and expense statement reflected Estimated expenses of.$289.20 per month for shelter, utilities, automobile operation, and insurance. She lived with her parents pending the dissolution and has neither automobile nor driver's license. Her personal expenses were estimated at $235.50 per month and her child's expenses at $237.10 per month. Medical and dental bills for wife and child totaled $131 per month and were based on a selected month's expenses. Her only listing of child care payments was $30 per month based upon one occasion when she paid her parents that amount when she went on a week-end trip.

There was no marital property of consequence. There were substantial debts, several incurred by the husband prior to marriage.

The court awarded wife $25 per week maintenance for two years, $30 per week child support, $450 in attorney's fees, and granted the husband temporary custody from 1 p. m. to 5 p. m. on alternate Saturdays and Sundays and on alternate holidays and one week during the summer.

We find it unnecessary to set forth the evidence adduced concerning the husband's fitness to have temporary custody. Suffice it to say that the wife's testimony came from herself, her brother, her sister, and a friend and was denied by the husband. The testimony reflects that the wife is over- protective of the child. The trial court could have concluded that the claim of unfitness of the husband was based upon that over-protectiveness, the wife's family's rigid religious morality, some early and infrequent occurrences, and improbable testimony by the wife's witnesses. The trial court is the judge of credibility of the witnesses and we defer to its determinations in that regard. The award of temporary custody is based upon substantial evidence and is affirmed.

Under Sec. 452.335 R.S.Mo.1973, maintenance may be awarded by the trial court after it determines that one spouse lacks sufficient property or is unable to support himself sufficiently to meet his reasonable needs. Brueggemann v. Brueggemann, 551 S.W.2d 853 (Mo.App.1977). We will accept here the proposition that the wife does not have sufficient property to meet her reasonable needs. We cannot say that the wife's evidence conclusively showed her inability to support herself. We note particularly that she did not assert that her custody of the child precludes her from employment and in fact her testimony reflects her intention to seek additional schooling on a full-time basis. See Cissell v. Cissell, 573 S.W.2d 722 (Mo.App.1978) (6). However, the court made an award of "rehabilitative maintenance" and we will assume it found that additional education was necessary for her to achieve her proper level of supportive ability and we will defer to that finding. Paragraph 2 of Section 452.335 provides that the maintenance awarded shall be just, based upon seven non-exclusive factors. It is apparent that that section does not contemplate that the court must award maintenance adequate to meet all of the needs of the to-be-maintained spouse even if the maintaining spouse has sufficient resources to provide such support. Rather, the court is to look to the circumstances of the parties and the marriage to determine what may "justly" be required of the maintaining spouse. It may be conceded that husband apparently has adequate resources to provide a greater portion of the wife's needs than the court has ordered, ¹ but that does not mean he must. The court concluded that no more than two years of partial support was necessary for the wife to gain sufficient training to support herself. We share the trial court's incredulity that six years of college is required to prepare the wife for a secretarial career. The evidence of the standard of living of the parties during the marriage is, as the wife states, sparse, but it does reveal that whatever the standard of living was it was above the family's means. Of particular consequence in assessing the...