Schroeder v. Schroeder, s. 68350

• Decision Date: 04 June 1996
• Docket Number: 68478,Nos. 68350,s. 68350
• Citation: 924 S.W.2d 22
• Parties: Brenda K. SCHROEDER, Petitioner/Respondent/Cross-Appellant, v. David J. SCHROEDER, Respondent/Appellant/Cross-Respondent.
• Court: Missouri Court of Appeals

Page 22

924 S.W.2d 22

Brenda K. SCHROEDER, Petitioner/Respondent/Cross-Appellant, v. David J. SCHROEDER, Respondent/Appellant/Cross-Respondent.

Nos. 68350, 68478.

Missouri Court of Appeals,

Eastern District,

Division Two.

June 4, 1996.

B. Thomas Kearns, St. Louis, for David Schroeder.

William P. Grant, Dorothy D. Danforth, Clayton, Thomas H. Nations, St. Louis, for Brenda Schroeder.

CRANDALL, Judge.

Husband, David J. Schroeder, appeals from the decree of dissolution of his marriage to wife, Brenda K. Schroeder. Wife also appeals. We affirm.

Husband and wife were married in November 1988 and separated in February 1995. The only child of the marriage was wife's natural son born in January 1978, whom husband adopted during the marriage. Wife's other child, born of a previous marriage, also lived with the parties.

At the time of the dissolution, wife was 34 years of age. She was a high school graduate. Before the marriage and for some time thereafter, she worked as a hair stylist and earned about $300.00 to $600.00 per week. She also trained as an airline reservationist, but was never employed in that capacity. In 1991, she went to work for husband as a real estate appraiser and became licensed. She earned between $6,000.00 and $7,000.00 per year working for husband. At the time of the dissolution, she was no longer employed by husband; and her attempts to secure employment as a real estate appraiser had proven unsuccessful. She testified she was unsure of how long it would take her to become financially independent while pursuing a career as an appraiser; but in response to questions by the court about how long she believed it would take, indicated at least three years. She anticipated that her yearly income from working as a real estate appraiser would equal about $25,000.00.

Husband was 56 years of age. He had worked as a real estate appraiser and broker for over 30 years. He operated his own appraisal business and was the sole shareholder of the stock of that corporation. His annual incomes for the three years preceding the dissolution were $75,000.00, $90,000.00, and $85,000.00. Prior to 1994, he had about eight people working for him. When the business experienced a downward trend in 1994, he reduced his staff and his income dropped to about $56,000.00.

During the six-year marriage, the parties resided in a large, two-story home in South St. Louis County. Husband purchased the home for $137,500.00 in 1986, prior to the marriage. In 1990, in the course of refinancing the home, husband deeded the property to himself and wife as tenants by the entirety. The parties made several improvements to the home, including a swimming pool, fence, landscaping, concrete work, drapes, and wallpaper. The court valued the house at $190,000.00, with an outstanding mortgage of $114,000.00. There were also five parcels of rental property, titled either solely in husband's name or jointly in his and wife's names. The indebtedness on the rental properties equalled or exceeded their fair market values; and the rental properties operated at a loss. In addition, the parties owned stock in three different companies, the total value of the shares of stock being reduced by indebtedness to a brokerage company.

In its decree of dissolution, inter alia, the court set aside certain property to each party as separate and divided the marital assets. The separate property awarded to wife and to husband consisted of jewelry and personal items. In addition, the court awarded husband all of the stock of his business and all of the rental property, regardless of whether it was classified as separate or marital property. The court awarded to wife certain shares of stock valued at $1,365.00; and to husband the shares of two stocks valued at $2,150.00 and $10,925.00, the latter subject to indebtedness of $8,500.00. The court ordered the marital home sold and wife given 25 percent of the profits from the sale. The court found that husband's monthly income was $5,446.80, and imputed income of $750.00 per month to wife. The court also ordered husband to pay child support of $690.00 per month, maintenance of $600.00 per month to wife for a period of three years, and $1,500.00 to be applied to wife's attorney's fees.

Appellate review of a court-tried case is guided by Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976).

MAINTENANCE

In husband's first point, he contends the trial court erred in awarding maintenance to wife because she was capable of being self-sufficient at the time of the dissolution. In wife's first two points of her cross-appeal, she challenges the court's limiting the duration of maintenance to three years and setting the maintenance at $600.00 per month.

Section 452.335, RSMo (1994) governs awards of spousal maintenance. Section 452.335.1 sets forth the threshold test for an award of maintenance. The statute permits the court to grant maintenance to a spouse only if it finds that the spouse seeking maintenance (1) lacks sufficient property, including marital property apportioned to the spouse, to provide for his or her reasonable needs, and (2) is unable to support himself or herself through appropriate employment. The spouse seeking maintenance is required to show need before maintenance may be awarded. L.A.L. v. L.L., 904 S.W.2d 50, 53 (Mo.App. E.D.1995). Although § 452.335.2 sets forth the statutory factors which the court is to consider in determining the amount and duration of maintenance, those factors are only considered after the court finds that the threshold test is satisfied and allows an award of maintenance. Wallace v. Wallace, 839 S.W.2d 354, 357 (Mo.App. W.D.1992).

Although the thrust of husband's argument on appeal does not address the first prong of the threshold test, we find that there was substantial evidence that wife did not have sufficient property to meet her reasonable needs. Wife had no separate property which was income producing, nor was the marital property awarded to her sufficient to meet her needs for more than the immediate future. Further, wife was not required to deplete her own assets or to consume the marital property before being entitled to maintenance. See Wallace, 839 S.W.2d at 357.

Husband's claim of error regarding maintenance focuses on the second prong of the threshold test; namely, whether wife had the ability to meet her needs through appropriate employment. Wife was unemployed at the time of dissolution. The law in Missouri is that unemployment is not enough to require an award of maintenance and that the parties are encouraged to become self-sufficient by fulfilling their affirmative duty to seek employment. Wallace, 839 S.W.2d at 357. At the time of the dissolution, however, wife was actively seeking employment as a real estate appraiser. She had switched to this field during the marriage with the encouragement and assistance of her husband. Although she had previous training both as a hair stylist and as an airline reservationist, her return to a job in either of those areas was doubtful--she had not been a stylist for years and had never been employed as a reservationist. Lastly, husband's assertion that wife was capable of being self-sufficient at the time of dissolution is incredulous, given the fact that when she worked for him as a real estate appraiser she only earned between $6,000.00 and $7,000.00 per year. There was substantial evidence that wife could not support herself through appropriate employment at the time of the dissolution. Wife thus met the threshold test to determine that she was eligible for maintenance.

After determining that maintenance is appropriate, the trial court next considers the ten factors outlined in § 452.335.2 in setting the amount and duration of maintenance. The trial court is not required to specifically address each statutory factor. McCallister v. McCallister, 809 S.W.2d 423, 429 (Mo.App.1991). The factors the trial court must consider are as follows:

(1) the financial resources of the party seeking maintenance and his ability to meet his needs independently;

(2) the time necessary to acquire sufficient education or training to find appropriate employment;

(3) the comparative earning capacity of each spouse;

(4) the standard of living established during the marriage;

(5) the obligations and assets, including the marital and separate property;

(6) the duration of the marriage;

(7) the age and physical and emotional condition of the spouse seeking maintenance;

(8) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;

(9) the conduct of the parties during the marriage; and

(10) any other relevant factor.

The trial court not only has broad discretion in applying the statutory factors, but it determines the witnesses' credibility and evaluates the merits of each party's expense claims. Jones v. Jones, 866 S.W.2d 507, 509 (Mo.App. E.D.1993). The court uses the factors in awarding maintenance to balance the reasonable needs of the spouse seeking maintenance with the other spouse's ability to pay. Bixler v. Bixler, 810 S.W.2d 95, 99-100 (Mo.App.1991).

Husband's comparative earning capacity, one factor in determining maintenance, was greater than wife's at the time of dissolution. The court found husband's monthly income to be about $5,446.00, while it imputed income to wife of $750.00 per month. Although husband testified that his appraisal business was experiencing a downward trend, the reduced salary he reported at the time of dissolution still far exceeded wife's earnings.

Although wife had an affirmative duty to seek adequate employment to enable her to become self-sufficient, there was evidence that wife would require time to become self-supporting in her chosen field. She needed time to find employment which corresponded to her skills and interests. She was relatively new to the real estate appraisal business, having started in that field in 1991...