Schinker v. Schinker, 53430

• Decision Date: 29 March 1988
• Docket Number: No. 53430,53430
• Citation: 747 S.W.2d 761
• Parties: Mary Lou SCHINKER, Petitioner/Respondent, v. James John SCHINKER, Respondent/Appellant.
• Court: Missouri Court of Appeals

Page 761

747 S.W.2d 761

Mary Lou SCHINKER, Petitioner/Respondent, v. James John SCHINKER, Respondent/Appellant.

No. 53430.

Missouri Court of Appeals,

Eastern District,

Division One.

March 29, 1988.

James S. Collins, II, Russell A. Willis, III, St. Louis, for respondent/appellant.

Robert A. Dempster, Seth G. Gausnell, Sikeston, for petitioner/respondent.

GARY M. GAERTNER, Presiding Judge.

James John Schinker (hereinafter referred to as Husband) appeals the decree of dissolution ordered by the Circuit Court of St. Louis County. Husband raises three points on appeal. First, he alleges that the trial court erred in awarding maintenance to Mary Lou Schinker (hereinafter referred to as Wife). Second, he maintains that it was error for the trial court to find that Husband's entire retirement benefit was marital property. Third, he argues that the trial court erred in dividing the marital property. Finding Husband's contentions to be without merit, we affirm.

The evidence reveals that the parties were married on August 5, 1957, and that one child who is now emancipated was born of the marriage. In July 1986, the trial court heard the parties' dissolution of marriage action. The trial court issued a decree of dissolution in which it (1) ordered Husband to pay maintenance to Wife in the amount of $286.00 per month, (2) determined that the entire retirement benefit payable to Husband from his employment was marital property, and (3) effected an approximately equal division of the marital property. Additional facts will be set forth as they become warranted by our discussion of the issues.

Initially, this court recognizes the applicable standard of review. We must affirm the decree of dissolution if it is supported by substantial evidence, is not against the weight of the evidence and neither erroneously declares or applies the law. Bull v. Bull, 634 S.W.2d 228, 229 (Mo.App., E.D.1982). This court may only set aside the decree on the ground that it is against the weight of the evidence with caution and with a firm belief that the decision is clearly wrong. Butler v. Butler, 698 S.W.2d 545, 548 (Mo.App., E.D.1985).

In his first point, Husband alleges that the trial court improperly awarded Wife maintenance. A spouse who seeks maintenance must demonstrate need. Hemphill v. Hemphill, 710 S.W.2d 438, 439 (Mo.App., E.D.1986). Section 452.335 (1986) states that the court must find that the spouse seeking maintenance "lacks sufficient property ... to provide for his reasonable needs; and is unable to support himself through appropriate employment...." RMSo § 452.335.1(1)(2) (1986). The trial court in the case before us found that both of these facts were present with respect to Wife. We believe that this decision is supported by substantial evidence. See Weiss v. Weiss, 702 S.W.2d 948, 956 (Mo.App., W.D.1986); Madden v. Madden, 585 S.W.2d 220, 221 (Mo.App., E.D.1979). At the time the dissolution action was heard, Wife was fifty-six years old and had been married to Husband for twenty-nine years; she had completed only the ninth grade of high school; and she lacked any significant work experience or training, as she had been a full-time homemaker caring for the couple's daughter. The trial court found that she would only be able to obtain employment in positions paying the minimum wage, a conclusion which is supported by substantial evidence.

In addition, Husband argues that the trial court did not adequately consider his ability to pay maintenance. We disagree. Husband earned approximately $37,960.00 in the year prior to the entry of the decree. Although Husband was unemployed at the time of the dissolution proceeding, he possessed the qualifications necessary for a senior project engineer and was receiving considerable severance pay from his former employer. In his brief, Husband places much reliance on the decision in Russell v. Russell, 740 S.W.2d 672 (Mo.App., E.D.1987). In Russell, the parties had been married thirty-three years and the wife possessed an eighth grade education and essentially no work experience outside the home. Id. at 673. The wife testified at the dissolution hearing that medical problems rendered her unable to obtain a job. Id. The appellate court noted that the wife did not present any medical testimony so as to establish her incapacity to work. Id. Nevertheless, the Russell court held that the wife was entitled to an award of maintenance. Id. In the present case, Wife testified as to her medical problems without the benefit of expert medical testimony, and the trial court incorporated her...