Sharrai v. Sharrai

• Citation: 322 S.W.3d 641
• Decision Date: 19 October 2010
• Docket Number: No. WD 71279.,WD 71279.
• Parties: Rex Earl SHARRAI, Appellant, v. Kristi Lynn SHARRAI, Respondent.
• Court: Court of Appeal of Missouri (US)

322 S.W.3d 641

Rex Earl SHARRAI, Appellant,

v.Kristi Lynn SHARRAI, Respondent.

No. WD 71279.

Missouri Court of Appeals,Western District.

Oct. 19, 2010.

COPYRIGHT MATERIAL OMITTED.

Allen S. Russell, for Appellant.

Steve D. Burmeister, for Respondent.

Before Division Two: JOSEPH M. ELLIS, Presiding Judge, ALOK AHUJA, Judge and CYNTHIA L. MARTIN, Judge.

JOSEPH M. ELLIS, Judge.

Rex Sharrai (“Husband”) appeals from a judgment entered in the Circuit Court of Jackson County dissolving his marriage to Kristi Sharrai (“Wife”). ¹ Specifically, Husband challenges the trial court's award of maintenance to Wife and the division of marital assets. For the following reasons, the judgment is reversed, and the cause is remanded for further proceedings.

Husband and Wife married on June 26, 1982. During the entire course of the marriage, Husband was employed by the Burlington Northern Santa Fe Railroad. Wife ceased her employment with Kraft Foods seven years into the marriage. In 1999, the couple purchased a scuba diving business for $350,000. The upper floor of that business served as their residence. Wife worked full time in that business but received no wages for her work.

Husband and Wife separated on July 24, 2007, and Husband filed a petition for dissolution of the marriage the following day. On August 11, 2007, Wife filed an answer and counter-petition for dissolution of marriage in which she requested an award of maintenance.

Subsequently, in May 2009, Wife moved to Rogers, Arkansas, to be closer to her family, and she purchased a home. Despite applying for numerous jobs, the only employment Wife was able to obtain was a part-time job at a Lowe's Home Center from which her average monthly income was $979.90. Prior to trial, Wife was diagnosed with cancer and underwent two surgeries in February 2009 to remove a cancerous mass, lymph node, and surrounding tissue from her breast. She received radiation treatment through May 2009 and was told she might require chemotherapy treatment in the future.

The case was tried on April 23 and 24, 2009. On June 5, 2009, the trial court entered its judgment dissolving the marriage. The court divided the couple's marital property and ordered Husband to pay Wife $2,500.00 per month in modifiable maintenance. Husband brings three points on appeal.

“As in any court-tried case, we must affirm the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Janes v. Janes, 242 S.W.3d 744, 748 (Mo.App. W.D.2007) (internal quotation omitted). “We review the evidence and inferences in the light most favorable to the trial court's decision and disregard all contrary evidence and inferences.” Potts v. Potts, 303 S.W.3d 177, 184 (Mo.App. W.D.2010) (internal quotation omitted). “Judging credibility and assigning weight to evidence and testimony are matters for the trial court, which is free to believe none, part, or all of the testimony of any witness.” Id. (internal quotation omitted). “We presume that the trial court took into account all evidence and believed such testimony and evidence that is consistent with its judgment.” Id. (internal quotation omitted). “The party challenging the dissolution judgment has the burden of demonstrating error.”

Coffman v. Coffman, 300 S.W.3d 267, 270 (Mo.App. W.D.2009) (internal quotation omitted).

In his first point, Husband claims that the maintenance award to Wife was not supported by substantial evidence and was against the weight of the evidence because the trial court overstated Wife's monthly expenses, improperly found that Wife was incapable of supporting herself through appropriate employment, and failed to consider the significant marital property awarded to Wife.

“A trial court may award maintenance to a spouse if it finds that the spouse: (1) lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs; and (2) is unable to support herself through appropriate employment.” Id. (citing § 452.335.1). “The spouse seeking maintenance has the burden of establishing these threshold requirements.” Donovan v. Donovan, 191 S.W.3d 702, 705 (Mo.App. W.D.2006). “In determining whether to award maintenance, the trial court first determines the reasonable needs of the spouse seeking maintenance and then decides whether that spouse is able to meet those needs through the use of property or appropriate employment.” Coffman, 300 S.W.3d at 270. “ ‘Reasonable needs' is the standard for determining the expenses properly allowable to a spouse seeking maintenance.” Comninellis v. Comninellis, 147 S.W.3d 102, 106 (Mo.App. W.D.2004).

Husband first argues that amounts allegedly contained in Wife's income and expense statement submitted as an exhibit at trial were not supported by the evidence. Specifically, Husband claims that Wife improperly listed as an expense $500.00 on a line designated for rent or mortgage payment and that her listed expense of $410.00 for college tuition was improper because she was not currently enrolled in college and paying tuition as of the date of trial.

Wife's testimony sufficiently supported a finding by the trial court that the challenged expenses were reasonable and legitimate. “In evaluating the merits of a party's claimed expenses, the trial court judges the credibility of witnesses and evaluates the merits of the expenses claimed.” Ross v. Ross, 231 S.W.3d 877, 884 (Mo.App. S.D.2007) (internal quotation omitted). Wife testified that she had needed to borrow $12,500.00 from her parents to purchase her house and that the $500.00 per month reflected on her expense statement was a payment on that loan. The trial court found that this testimony was credible and that the monthly payment of $500.00 toward repayment of that loan was a reasonable expense.

As to the college tuition, Wife testified that she was going to pursue a college degree in nursing starting in the fall, unless her cancer treatment delayed those efforts. She said that she would attend a local community college for the first two years of her nursing education and then enrolling at the University of Arkansas for the final two years. For the purposes of her expense form, Wife totaled the tuition costs for all four years to determine the average monthly cost of her education over that period. Wife only included half of that monthly amount on her statement of expenses. While Husband argues that Wife's testimony regarding her intention to go to college is suspect because she was not yet enrolled, the trial court found Wife's testimony to be credible, and we defer to the credibility determinations of the trial court. Potts, 303 S.W.3d at 184. Moreover, Husband fails to make a coherent argument for why the methodology utilized by Wife and the trial court for determining the amount of the monthly expense for college tuition was improper.

[8] [9] We next turn to Husband's claim that the trial court should have imputed a full-time income to Wife. Whether to impute income to a spouse when considering an award of maintenance rests within the discretion of the trial court. Woodard v. Woodard, 201 S.W.3d 557, 563 (Mo.App. E.D.2006). “The decision whether to impute income to a spouse in awarding maintenance depends upon the particular facts of each case.” Alberty v. Alberty, 260 S.W.3d 856, 861 (Mo.App. W.D.2008).

In this case, the trial court found that Wife's part-time employment was appropriate in light of her medical problems, lack of education, and the current job market. Wife testified that she had previously tried to obtain full-time employment with her employer but had been unsuccessful. Furthermore, in light of Wife's intention to pursue a college degree and the condition of her health, the trial court could well have determined that it would be impractical for Wife to work full-time while taking a full load of college courses. Under the facts of this case, the trial court did not abuse its discretion in electing not to impute further employment income to Wife.

Husband's remaining argument is that the trial court erred in failing to consider the significant marital property awarded to Wife in determining that she lacked sufficient property to meet her reasonable needs. Husband was ordered to pay Wife $100,000.00 within ten days of the entry of judgment and an additional $178,273.00 within ninety days. As noted, supra, maintenance may only be awarded if a spouse “lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs.” Coffman, 300 S.W.3d at 270. “Under Section 452.335, the court [is] obligated to consider [Wife]'s marital property award in determining her need for maintenance.” Voinescu v. Kinkade, 270 S.W.3d 482, 489 (Mo.App. W.D.2008). Of necessity, then, the decision to award maintenance cannot be made until after the division of marital property. In re Marriage of Johnson, 856 S.W.2d 921, 927 (Mo.App. S.D.1993). The spouse receiving maintenance “is not required to deplete his or her share of the marital property awarded in the dissolution proceedings before being entitled to maintenance.” Jung v. Jung, 886 S.W.2d 737, 740 (Mo.App. E.D.1994). However, the income derived from the marital property must be considered by the trial court “in determining the necessity for, or amount of, maintenance.” Id. Accordingly, the...