Rogers v. Rogers, 57396

• Decision Date: 18 December 1990
• Docket Number: No. 57396,57396
• Citation: 803 S.W.2d 92
• Parties: Lon S. ROGERS, Appellant, v. Barbara S. ROGERS, Respondent, and Raymond and June Rogers, Co-Respondents.
• Court: Missouri Court of Appeals

Page 92

803 S.W.2d 92

Lon S. ROGERS, Appellant, v. Barbara S. ROGERS, Respondent and Raymond and June Rogers, Co-Respondents.

No. 57396.

Missouri Court of Appeals,

Eastern District,

Division Two.

Dec. 18, 1990.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Jan. 29, 1991.

Application to Transfer Denied March 5, 1991.

Chester A. Love, David P. Card, II, St. Louis, for appellant.

Richard H. Edwards, Richard C.

Bresnhan, Clayton, for respondent.

CRIST, Judge.

This is a dissolution case. The judgment is affirmed in part, reversed in part, and remanded in part. Husband, wife, and husband's parents appeal. Husband complains about the division of property, child support payments, maintenance payments, and payments of wife's attorney fees and court costs. Wife complains about lack of protection under the maintenance award, division of property, and certain property set off to parents as their property. Parents complain about wife's award of attorney fees and costs against them and the trial court's decision finding parents had made gifts to husband and wife instead of loans.

The order of the trial court will be sustained unless the record reveals no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 [1-3] (Mo. banc 1989).

Husband and wife were married in 1974. Their marriage was dissolved in July, 1989. Husband is approximately forty years old and wife is approximately thirty-eight years old. Husband is a veterinarian. Wife has a masters degree in food and business but has limited work experience. Three children were born of the marriage, aged fourteen, eleven and nine.

The trial court set off marital property to husband valued at about $360,136. He was ordered to pay debts of about $49,230 leaving a net value of $310,906. Husband was awarded the veterinary practice and personal property relating thereto valued at $236,000. The trial court set off to wife the marital home valued at $215,000 and its furnishings and additions valued at $16,500. It also set off to wife a cash judgment against husband in the sum of $110,000.

In addition:

(1) Husband was ordered to pay wife her litigation expenses including attorney fees.

(2) Wife was granted primary custody of the three children.

(3) Husband is to pay $1,200 in child support per month for all of the three children.

(4) Husband is to pay for children's medical, dental and major medical insurance and all other medical expenses not covered by the insurance. He was further ordered to purchase and maintain a life insurance policy on his life in the face amount of $200,000, naming wife as irrevocable beneficiary.

(5) Husband is to pay towards the children's college education expenses, the equivalent of the costs for tuition, room, board and text books for each child to attend and pursue a four-year degree.

(6) Husband is to pay wife the sum of $1,250 per month for a period of sixty months as and for maintenance. The maintenance is non-modifiable.

(7) Husband is to pay the monthly mortgage payments on the marital home in the amount of $460.

HUSBAND'S APPEAL

In husband's first point, he alleges the trial court abused its discretion by imposing too much financial responsibility on husband. Husband states he has never made more than $59,500 per year and cannot make maintenance payments for wife and support payments for his three children totaling $2,450 per month. In addition, husband complains he is required to pay wife's attorney fees and court costs, mortgage on the marital residence, medical and health insurance for children, the premiums on a life insurance policy in favor of wife and pay wife a cash judgment of $110,000.

Husband was awarded substantial marital property from which to pay these obligations. He was awarded the veterinary practice business valued at $236,000. His net income from the veterinary practice in 1988 was $63,000. Additionally, husband was awarded the veterinary practice checking account in the amount of $27,000. Evidence indicates husband pays all his personal expenses out of his business account; in fact, husband does not have a personal checking account. Husband was awarded the following property: the Stonebridge Partnership valued at $39,000; the Oxford Partnership valued at $5,000; the Home Federal Savings and Loan account valued at $9,200; the proceeds from the sale of a marital pickup truck valued at $1,500; the Country Club bond valued at $1,500; three separate IRA accounts valued at $24,500; a marital car valued at $5,500; the Tri Fund Apartment Income valued at $2,000; the Equitec Fund valued at $2,000; a gift from his parents in the amount of $36,000; the Van Guard account valued at $1,357.56; the American Growth Account valued at $278.56 and a limited partnership valued at $65,000. Finally, husband lives in a home he rents from his parents and lives with a woman who shares living expenses.

Wife was only awarded liquid assets in the form of an IRA account valued at $4,300 and the children's trust account valued at $4,000. She was awarded her nonmarital inheritance valued at $19,000.

Husband's monthly expenses are $2,490. His average monthly income is approximately $4,200. This does not include income he receives from the income-producing property he was awarded or income from the woman he lives with who shares living expenses. Wife on the other hand has charge of the three children and the marital home. She has monthly expenses exceeding $4,000. She works cleaning other people's homes making about $520 per month. The interest on her inheritance investment is approximately $123 per month. Even with her income, maintenance, and child support she does not have enough with which to pay her expenses.

The trial court has broad discretion in dividing marital property. Calia v. Calia, 624 S.W.2d 870, 872[1-4] (Mo.App.1981). The division must be just but it need not be equal. Id. An accounting of the items awarded reveals an equitable distribution of the property. Husband has the means with which to pay the financial obligation imposed. This point is denied.

In husband's second point he complains the trial court erred in ordering husband to pay $1,250 per month for five years. The question of maintenance is within the sound discretion of the trial court and review on appeal is to determine only whether that discretion is abused. Kessler v. Kessler, 719 S.W.2d 138, 140 (Mo.App.1986). On appeal it is the burden of the party challenging the maintenance award, here husband, to show the award was so excessive that it constituted an abuse of discretion. Id. Husband has not met that burden.

Wife received her masters degree in consumer education in 1974. Despite her education, wife's work experience in her field extends only to the eleven months in 1975 she worked for Stokely Van Camp as a frozen food economist making only $8,000. She quit her job to move with husband to St. Louis so he could start his veterinary practice. Since that time, wife has never been employed on a full-time basis. Currently she works as a domestic cleaning other peoples' homes making approximately $130 per week. She has made numerous unsuccessful attempts to find employment in her field. She has been a substitute teacher in the past but would need at least two more years of schooling to become an accredited full-time teacher.

Wife testified her monthly expenses exceed $4,000. Wife has charge of the family home and the parties' three children. Wife said at trial she would need $700 per month in maintenance and $600 per month per child in support for a total of $2,500 in order to get by. The trial court awarded wife $1,250 in maintenance to terminate in five years and $400 per month per child in support for a total of $2,450 per month. As addressed in point one, husband can pay maintenance and support of $2,450 and still have sufficient funds remaining to meet his reasonable needs. Petty v. Petty, 739 S.W.2d 738, 741-42 (Mo.App.1987). Kessler v. Kessler, 719 S.W.2d 138, 139 (Mo.App.1986). We find no abuse of discretion.

Husband next asserts the trial court erred in determining the $65,000 limited partnership interest was existent marital property. The evidence was conflicting.

Wife stated she had no knowledge of this asset but believed there was more money somewhere. And, she listed the property as marital property. Wife's witness said he had obtained the information for the existence of the asset from husband. He had placed the information on a form which was signed by husband. The form was in evidence. Husband testified there was no such property. We defer to the finding of the trial court.

In this same point, husband also contends there was insufficient evidence to find the existence of the following: the $9,200 Home Federal Savings and Loan account; the $27,000 veterinary practice business checking account; and the $1,357.56 Van Guard account. There was substantial evidence to support the existence of these accounts. The trial court's finding that these accounts were existent marital assets was not clearly erroneous. See Barber v. Barber, 748 S.W.2d 679, 680-681 (Mo.App.1988). Furthermore, the trial court was at liberty to believe or disbelieve the husband's explanation that these funds were non-existent because he used them to pay marital expenses. Bland v. Bland, 652 S.W.2d 690, 692[1-3] (Mo.App.1983). We cannot say the rejection by the trial court of this contention was unjustified. Husband also contends the $25,000 he paid parents was non-existent property. We will discuss this contention at a later point.

Husband next asserts the trial court erred in awarding a compensating cash judgment to wife in the amount of $110,000, and if the award was justified, the trial court erred in not allowing husband to pay it in installments.

A court may order cash payments to effect a just division of marital property. Calia...