Russum v. Russum

• Citation: 214 S.W.3d 376
• Decision Date: 20 February 2007
• Docket Number: No. WD 65741, 65968.,WD 65741, 65968.
• Parties: Pamela J. RUSSUM, Respondent, v. Gerald E. RUSSUM, Jr., Appellant.
• Court: Court of Appeal of Missouri (US)

214 S.W.3d 376

Pamela J. RUSSUM, Respondent, v. Gerald E. RUSSUM, Jr., Appellant.

No. WD 65741, 65968.

Missouri Court of Appeals, Western District.

February 20, 2007.

Dennis J. Cambell Owens, Jeremiah Kidwell, Kansas City, MO, for appellant.

Leonard K. Breon, Carroll G. Leffler, Warrensburg, MO, for respondent.

Before HOWARD, P.J., BRECKENRIDGE and HARDWICK, JJ.

PATRICIA BRECKENRIDGE, Judge.

Gerald E. Russum (Husband) appeals the judgment of the trial court dissolving his marriage to Pamela J. Russum (Wife). Husband also appeals from the judgment of the trial court awarding Wife attorney's fees on appeal. The two appeals have been consolidated for purposes of this proceeding. In Husband's points on appeal, he asserts that the trial court erred in awarding Wife maintenance in the amount of $550 a month because the uncontroverted evidence showed that Husband did not have the ability to pay and there was not substantial evidence of Wife's living expenses. He also claims the trial court erred in awarding Wife twenty-five percent of Husband's 401(k) retirement account because that division was not equitable since Husband was ordered to pay all of the marital debt. He further claims that the trial court erred in awarding Wife attorney's fees for both the dissolution action and the appeal because Husband cannot afford to pay the awards and his greater income alone does not justify the awards. Finally, he claims that there was not substantial evidence to support the award for attorney's fees on appeal. This court finds that the trial court did not err in awarding Wife maintenance in the amount of $550 a month or in awarding Wife twenty-five percent of Husband's 401(k) retirement account. This court further finds that the trial court did not err in awarding Wife attorney fees in both the dissolution action and on appeal. Finding no error, the judgment of the trial court is affirmed.

Factual and Procedural Background

Husband and Wife were married on September 19, 1977, in Archie, Missouri. One child was born of the marriage, and Husband adopted Wife's two children from a previous marriage or relationship. All were emancipated at the time of trial. Prior to the parties' separation, Husband had an extramarital affair. The parties separated on June 10, 2004, and Wife filed her petition for dissolution of marriage on June 18, 2004. During the pendency of the dissolution action, the court awarded Wife $800 a month in temporary maintenance.

The parties executed a separation agreement that divided all of the parties' assets except Husband's 401(k) retirement account. The parties also agreed that Husband would pay all of the parties' marital debt. In addition to being unable to agree on the division of Husband's 401(k) retirement account, the parties could not agree on Wife's requests for maintenance and attorney's fees. Therefore, at the trial held on April 28, 2005, the contested issues were the division of Husband's 401(k) retirement account and Wife's requests for maintenance and attorney's fees.

The trial court entered its initial judgment dissolving the parties' marriage on June 9, 2005, and entered a judgment entry nunc pro tunc on June 20, 2005. In its judgment, the trial court found the parties' separation agreement to be fair and not unconscionable and divided the marital property as per the separation agreement. The court also ordered division of Husband's 401(k) retirement account. The trial court awarded Wife $3115 in personal property and twenty-five percent of the equity in Husband's 401(k) retirement account, which it valued at $6793.¹ The total property Wife received under the judgment was $9908. Husband was awarded $5375 in personal property, $1000 in other household goods and personal property, $2800 in cash, the marital home, and seventy-five percent of the equity in his 401(k) retirement account, which the court valued at $20,377. The total value of the property awarded to Husband was $29,552. As per the separation agreement, Husband was ordered to pay the parties' marital debt of $15,211. Subtracting the debt of $15,211 from the gross total of Husband's property award of $29,552, the net award to Husband was $14,341. The trial court also ordered Husband to pay modifiable maintenance to Wife in the amount of $550 per month and $3000 of Wife's attorney's fees. Husband appealed.

Thereafter, Wife filed a motion asking the trial court to award her attorney's fees for the appeal. The trial court heard evidence on Wife's motion and, on September 14, 2005, awarded Wife $6000 in attorney's fees on appeal. The court ordered Husband to pay that amount on or before November 15, 2005. Husband appealed the award of attorney's fees. On November 17, 2005, Husband paid Wife the $6000 in attorney's fees and Wife filed a Satisfaction of Judgment. Wife later filed in this court a motion to dismiss Husband's appeal of the award of attorney's fees on appeal, alleging that Husband's voluntary payment of the judgment rendered moot his appeal from the award of attorney's fees on appeal.

No Error in Awarding Maintenance

In his first point on appeal, Husband claims that the trial court erred in awarding Wife monthly maintenance in the amount of $550 because he is unable to meet his needs while meeting the needs of Wife. Husband contends that an award of maintenance can only be made when there is a showing that Husband is financially capable of paying the maintenance award. Husband asserts that his net income was insufficient to bear all of the marital debt in addition to maintenance payments to Wife. In his second point on appeal, Husband claims that the trial court erred in awarding Wife monthly maintenance in the amount of $550 because Wife failed to adduce sufficient evidence of her actual reasonable needs. Husband argues that there was no credible evidence of Wife's actual anticipated living expenses and, therefore, an award based on her ability to meet her reasonable needs could not be competently made. Because Husband's first and second points on appeal challenge the trial court's award of maintenance, they will be addressed together.

"The trial court has broad discretion in awarding maintenance, and its decision will not be overturned absent an abuse of discretion." Hammer v. Hammer, 139 S.W.3d 239, 240 (Mo.App. W.D. 2004). In determining whether the trial court abused its discretion, this court reviews the evidence in the light most favorable to the judgment of the trial court, disregarding all contrary evidence. Id. Deference is given to the judgment of the trial court even if the evidence could support a different conclusion. Id.

Section 452.335, RSMo 2000,² governs awards of maintenance in dissolution actions. Under that statute, the court may award maintenance if it finds that the spouse seeking maintenance meets the following threshold requirements:

(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and

(2) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

Section 452.335.1.

During the parties' twenty-seven-year marriage, Wife was primarily a stay-at-home mother and housekeeper, with brief periods of employment where she earned minimum wage. In the years 1977 through 2005, Wife earned $1316 in 1993, $1171 in 1994, and $1852 in 2000. Wife was unemployed at the time of trial. The evidence regarding Wife's employability is that she is fifty-five years old and has a ninth grade education and a GED. Wife has no work-related training and no computer or clerical skills. Wife does not have a driver's license and relies on others for transportation. Wife has had two knee replacements and she suffers from chronic bronchitis, asthma, and degenerative disc disease.

Husband provided the income for the family. For the last sixteen years of the parties' marriage, Husband was employed as a machinist at R & D Tool and Engineering. In the three years prior to the dissolution, Husband earned $49,248, $46,514, and $50,268. At the time of trial, Husband had a monthly income of $3900.

At trial, Wife offered into evidence her income and expense statement and gave testimony regarding her reasonably anticipated monthly expenses. Wife testified that, at the time of trial, she paid $375 a month to rent a trailer twelve miles outside of Warrensburg, but that she wanted to move to Warrensburg and anticipated that the rent for an apartment would be $450 a month. Wife's income and expense statement listed her monthly utility expense as $239. Wife testified that this figure was what she reasonably anticipated the utility expenses would be for an apartment, based on what she was paying for utilities at the trailer park. Wife also testified that because she does not drive and does not have a driver's license, she would incur monthly transportation expenses for payments to the persons who drive her. There was additional testimony from Wife as to her expenses for health and life insurance, prescription medications, food, clothing, and entertainment. The total of Wife's monthly living expenses was $1667. Wife testified that she had no income to meet her reasonable needs aside from the $800 in temporary monthly maintenance.

Based on her income and expense statement and Wife's testimony regarding her anticipated expenses, the trial court found that Wife's reasonable needs were approximately $1400 per month and that Wife lacked sufficient property, including the marital property apportioned to her, to provide for her reasonable needs. Despite Wife's work and health history, the trial court also found that Wife was able to work nearly forty hours per week at minimum wage. Nevertheless, the trial court ultimately found that Wife was unable to support herself through appropriate employment, thereby entitling...