Royal v. Royal, WD

Decision Date26 May 1981
Docket NumberNo. WD,WD
Citation617 S.W.2d 615
PartiesIn Re the Marriage of Fred P. ROYAL, Respondent, v. M. Nadine ROYAL, Appellant. 31666.
CourtMissouri Court of Appeals

John J. Phillips, Independence, for appellant.

June A. Short, Jr., Independence, for respondent.

Before MANFORD, P. J., and DIXON and NUGENT, JJ.

MANFORD, Presiding Judge.

This proceeding originated under a petition for dissolution. The answer to the petition denied that the marriage was irretrievably broken and was accompanied by a counterclaim for legal separation. The circuit court entered its decree ordering legal separation, the division of marital property and limited maintenance. The judgment is affirmed as modified.

Appellant (wife) claims (1) that the evidence was insufficient to support a finding that the marriage was irretrievably broken as a matter of law or in satisfaction of the requirements of § 452.320(2), RSMo 1978; (2) the court erred in the equal apportionment of the marital property and (3) the evidence failed to support a showing of impending change of conditions so as to support the award of limited maintenance.

Respondent filed his petition for dissolution on June 5, 1979. Appellant filed her answer, denying that the marriage was irretrievably broken and filed a counterclaim which prayed for legal separation in the alternative if the court determined the marriage to be irretrievably broken. The parties separated on March 1, 1979. Four children were born of this 31-year marriage and all were emancipated at the time these proceedings commenced.

Respondent is a 25-year employee of the federal government, with an annual income of $22,000. At the time of the hearing herein, he also had a part time job which netted him an additional $350 per month. Appellant is an expert sales person, and her income for 1978 was $11,000.00. The parties accumulated no savings through the years.

Although the parties disagreed as to the precise time involved, the evidence reveals that the marriage had deteriorated within the last few years. In support of his petition, respondent testified that appellant violently screamed at him and the children, belittled and cursed him in front of the children and refused to associate with any of his friends. Because of this refusal, respondent found himself alienated from his friends. He testified that on several occasions, appellant told him to get out of the house. He stated that he had to do all the washing, ironing and most of the grocery shopping, and added that his sensibilities were offended by having to purchase certain personal items for his wife. A witness who was a friend of both parties testified that appellant humiliated and degraded respondent in the presence of friends.

Appellant considered their marriage to have been a beautiful one during the first 28 or 29 years, but felt that as her husband reached his 50th birthday, his attitude toward her and the children changed. Appellant stated that she was too busy working to socialize with respondent's friends, but that on those occasions in which they did, she was often left alone and felt uncomfortable while respondent socialized with others. She also pointed out that in 1978, respondent one morning told her, "I don't love you anymore; I want out." She said that respondent "more or less" admitted to having an affair with a co-worker and that she reacted to that statement, saying, "Go, who needs you?"

Respondent denied that he was romantically involved with another woman. The only other evidence on this point was by deposition testimony of a psychiatrist who had met with both parties. This psychiatrist stated that respondent admitted to seeing another woman, but that the extent of that involvement was not explained.

Appellant contended that her husband's description of her behavior was exaggerated. She said she told him to leave the house only once, but admitted that she had, in front of family and friends, admonished her husband to "stand on his two feet" and to make his own decisions.

After separation, appellant, on the advice of the psychiatrist, entered the hospital. She was suffering from depression caused by the marital problems. While hospitalized, appellant underwent a hysterectomy. She was released in June, 1979 and returned to a 20-hour work week in November, 1979. Both prior and subsequent to that separation, there were encounters between the parties which were bitter and included physical violence. Despite this fact, appellant testified that she still loved respondent and felt that their marriage could be saved.

At the commencement of the proceedings and her formal pleadings, appellant filed a written request for specific findings of fact and conclusions of law. The court entered the same in support of its decree. The circuit court declared the marriage irretrievably broken upon the evidence of physical and emotional mistreatment and the emotional instability of appellant supported by the testimony of the psychiatrist. The circuit court specifically noted that appellant had belittled respondent, had been unwilling to socialize with respondent's friends and that over a long period of time, respondent had been required to do all his own laundry and ironing.

On February 22, 1980, the circuit court entered its decree of legal separation under appellant's counterclaim, divided the marital property and awarded appellant limited maintenance. On March 24, 1980, the circuit court entered a modified decree of legal separation, which stated that the husband had satisfied the court upon the evidence that respondent (appellant herein) "... has behaved in such a way that the Petitioner (respondent herein) cannot reasonably be expected to live with the respondent ..." The modified decree ordered the marital residence sold and the proceeds divided in such a manner that when added to the value of other personal property, each party would receive exactly 50% of the total marital property. The court found that neither party was entitled to statutory maintenance, but did rule that appellant was in need of maintenance for one year to supplement her income and to cover medical expenses. Appellant was awarded $5,000.00 maintenance and $1,300.00 to cover anticipated medical costs. This appeal followed.

The review of this matter is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), and the decree of the trial court will not be disturbed unless there is no substantial evidence to support it or unless it erroneously declares or applies the law.

For her first point of error, appellant argues that the evidence, as a matter of law and because it fails to satisfy statutory requirements, was insufficient to support the court's finding that the marriage was irretrievably broken.

This court has reviewed the record, which contains evidence of bitter and physically violent confrontations between the parties. Appellant belittled respondent in front of his friends and criticized respondent in front of the children. The record displays an emotional instability on appellant's part and her refusal to associate with respondent's friends. In addition, the record reflects the performance of daily duties by one party as opposed to a cooperative attitude by both parties to the marriage. It cannot be said that the evidence fails to support the finding by the trial court that this marriage is irretrievably broken either as a matter of law or upon failure to satisfy the requirements of § 452.320(2). Further, it cannot be said that the evidence fails to support the finding by the trial court that appellant has behaved in such a manner that respondent cannot be reasonably expected to live with her. There is substantial evidence to support the court's finding and it neither erroneously declares or applies the law. Point (1) is found to be without merit and is ruled against appellant.

In her point (2), appellant argues that since the evidence shows respondent's involvement with another woman and hence portrays him as the wrongdoer, the equal or 50% division of marital property by the trial court was error. Appellant argues that the marital residence should have been awarded to her instead of being ordered sold and the proceeds divided.

The trial court is accorded broad discretion in the division of marital property and awarding maintenance. This court will not disturb such awards unless they are clearly untenable under the facts and circumstances of the case. See Daus v. Daus, 595 S.W.2d 19 (Mo.App.1979); In re Marriage of Brewer, 592 S.W.2d 529 (Mo.App.1979); In re Marriage of Schulte, 546 S.W.2d 41 (Mo.App.1977) and Beckman v. Beckman, 545 S.W.2d 300 (Mo.App.1976).

In the performance of its statutory duties, the trial court is required to make a "just" and not necessarily equal division of the marital property, and the conduct of the parties during marriage is one of the factors to be assessed, see Pederson v. Pederson, 599 S.W.2d 51 (Mo.App.1980); Beckman v. Beckman, supra, and § 452.330.1(4), RSMo 1978.

In addition to the alleged marital misconduct of respondent, appellant argues that she should have received the marital residence because of a statement made by her psychiatrist during deposition that the loss of the family home would intensify her depression. Examination of that testimony shows it at best to be equivocal and not supportive...

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