Rich v. Rich, 62932

• Decision Date: 08 March 1994
• Docket Number: No. 62932,62932
• Citation: 871 S.W.2d 618
• Parties: Logan Dow RICH, Respondent, v. Sharon Ann RICH, Appellant.
• Court: Missouri Court of Appeals

Page 618

871 S.W.2d 618

Logan Dow RICH, Respondent, v. Sharon Ann RICH, Appellant.

No. 62932.

Missouri Court of Appeals,

Eastern District,

Southern Division.

March 8, 1994.

Robin Edward Fulton, Fredericktown, for appellant.

Eric Charles Harris, Flat River, for respondent.

CARL R. GAERTNER, Judge.

Sharon Ann Rich (wife) appeals from a decree of dissolution of marriage and a qualified domestic relations order. We affirm in part and reverse and remand in part.

Sharon and Logan Dow Rich (husband) were married on November 27, 1963. The Riches had a son and a daughter during the marriage: Troy Dow, born September 1, 1965, and Sharyl Kaye, born December 20, 1971. Troy died in a car accident on July 18, 1982. The parties separated on September 23, 1991. Husband filed a petition for dissolution of marriage on September 26, 1991. He sought joint legal custody of Sharyl Kaye with temporary physical custody and reasonable visitation rights to be awarded to him and an equitable division of marital property. On October 9, 1991, wife filed her answer to the petition together with a cross-petition in which she sought primary physical custody of Sharyl Kaye, maintenance, child support, and attorney's fees. A hearing on the merits commenced on August 12, 1992.

Husband earns $1,800 a month in net income working as a cable splicer for Southwestern Bell, where he has worked since 1961. He testified that he expected his income to increase based upon recent union contract negotiations which he speculated would lead to a 12-cent increase in his hourly wage rate over the next three years. He also expected his income to increase because he stopped purchasing savings bonds and his office was changing to an urban pay scale which would increase his hourly wage by $1.

In the early years of the marriage, wife had various part-time jobs working for Fuller Brush, Montgomery Ward and Tupperware. For the eleven years leading up to the divorce, however, she was employed as a full-time secretary in the Farmington R-VII School District, earning $700 a month in net income. She also worked part-time in a craft store where she netted $170 a month. Additionally, wife testified that she had taken a part-time consulting job in 1992 which would pay $1,500 when the job ended on January 1, 1993. Furthermore, the school district pays wife $135 per month into a credit union account as tax-deferred compensation in lieu of receiving medical insurance coverage which she waived because she was covered under husband's insurance.

Both parties agreed the marriage was irretrievably broken. Husband testified that they simply grew apart, had nothing in common and could no longer get along. Wife, however, claimed husband's alienation and affection with Nancy Boyer caused the breakup. Wife testified that husband spent a lot of time with Nancy and her daughter, Buffy, in the summer of 1991, while he neglected wife and his daughter. Husband admitted he spent time with Nancy and Buffy that summer. However, he denied engaging in marital misconduct, explaining that he spent time with Nancy and Buffy because he promised Nancy's husband, Mike, who was husband's co-worker and best friend, he would take care of Nancy and Buffy after Mike died. Mike died on June 9, 1991.

At the time of the hearing, the parties' daughter was 20 years old and enrolled in college, preparing to begin her third year. Husband admitted that since the summer of 1991 his relationship with her had been strained, leading to their estrangement in December 1991. Both parties offered evidence of Sharyl's property, which included two certificates of deposit totaling $13,800, an automobile, a checking account and furniture. Neither party claimed an interest in this property.

During the course of their 28-year marriage, the parties acquired a number of assets, including a home with an adjoining lot, a separate land parcel in Smiths Southgate Subdivision, a truck and van, three IRA accounts, husband's pension with Southwestern Bell, wife's retirement funds in a non-teacher retirement account, Southwestern Bell stock, stock from Southwestern Bell's employee stock option program, Tupperware bonds, funds in the deferred compensation program of the Educational Employees Credit Union which wife received in lieu of medical insurance coverage, a money market account, a certificate of deposit, various savings bonds, traveler's checks, a coin collection, and various items of personal property.

On September 1, 1993, the court entered its decree of dissolution. Both parties timely filed post-trial motions which the trial court heard on October 14, 1993. Thereafter, the court entered its amended decree of dissolution and a qualified domestic relations order (QDRO) regarding husband's retirement benefits.

In its original decree, the court ordered an equal division between the parties of husband's Southwestern Bell pension. However, in its QDRO, the court ordered that only the marital portion of the pension should be evenly divided.

In its amended decree, the trial court did not enter a custody order regarding Sharyl Kaye. The court further concluded that a strict application of Supreme Court Rule 88 in determining child support would be inappropriate and unjust because Sharyl was 20 years old, was enrolled in college, did not live with either party during the 1992 summer, worked during the summer, owned her own automobile, and had substantial savings. The court then ordered husband to pay $50 a week in child support and to maintain medical and automobile insurance for Sharyl until she completed college. The court further ordered that the parties' certificate of deposit valued at $23,438 and money market escrow account totaling $7,500 be consolidated and held in trust by wife. Wife was then ordered to immediately pay the debt on the parties' automobiles and use the balance of the funds to pay for Sharyl's college expenses.

The court awarded the parties their separate non-marital property, and ordered a nearly equal division of the marital property. ¹ The court also awarded wife $100 a month in limited statutory maintenance for a period of five years. Additionally, as a form of limited maintenance, the court ordered husband to maintain wife's status as a covered dependent on his medical insurance through the COBRA program. The court assessed costs against husband and denied wife's request for attorney's fees. This appeal followed.

Our review of the judgment in this court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will sustain the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law or it erroneously applies the law. Id. Furthermore, we must make any decision to reverse a judgment because it is against the weight of the evidence with caution and with a firm belief that the judgment is wrong. Id.; see also T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989).

I. Maintenance

In her first point on appeal, wife challenges the limitations in the maintenance orders. She first argues the court abused its discretion in limiting her statutory maintenance to five years. She contends there was no substantial evidence of any impending change in the parties' financial conditions; therefore, the prospective limitation on the duration of the award was improper.

A trial court has broad discretion in determining the duration of maintenance awards, and an appellate court will not interfere absent an abuse of discretion. § 452.335.2 RSMo. Supp.1993 ²; Law v. Law, 833 S.W.2d 17, 19 (Mo.App.1992); In re Marriage of Thomas, 829 S.W.2d 491, 492 (Mo.App.1992). However, a trial court is justified in limiting the duration of maintenance only where substantial evidence exists of an impending change in the financial conditions of the parties. Burbes v. Burbes, 739 S.W.2d 582, 584 (Mo.App.1987). At a minimum, there must be substantial evidence to support a reasonable expectation that such a change will occur. In re Marriage of Vinson, 839 S.W.2d 38, 43 (Mo.App.1992); Thomas, 829 S.W.2d at 492. "Absent evidence that the financial prospects of the party receiving maintenance will improve in the future, no maintenance award for a limited duration should be entered; it should be of unlimited duration, the amount being subject to modification if such party's financial condition improves." Vinson, 839 S.W.2d at 43.

In the present case, there is no evidence in the record that wife's financial prospects will be appreciably better October 14, 1997, than they were on the date of the decree. During the seven years prior to trial, wife earned an average annual income of $7,000 and never earned more than $10,500. Currently, she is earning the maximum amount possible for secretaries in her school district and is scheduled to receive modest pay increases every year. She only has a chance to increase her income by changing positions, which she has attempted to do with no success. She has made a reasonable effort to supplement her income with part-time work.

Wife has an Associate of Arts degree in elementary education which enables her to work as a teacher's aide; however, secretarial positions in the school district pay more. She has completed an additional 82 to 86 hours of college coursework. She would like to obtain a Bachelor of Science degree in business, but testified it would require three years of full-time coursework to complete which she cannot manage because of her work demands. Wife also testified her supervisor told her that a bachelor's degree would not lead to a pay increase or better job opportunities in the school district. The record, therefore, reveals that wife is using her education and experience in appropriate full-time employment. There is no evidence to support a rational basis for a determination that she would make substantially more income in the future.

On the other hand, there is nothing in...