Steffan v. Steffan, WD

• Decision Date: 07 April 1980
• Docket Number: No. WD,WD
• Citation: 597 S.W.2d 880
• Parties: Monique STEFFAN, Respondent, v. Daniel R. STEFFAN, Appellant. 30713.
• Court: Missouri Court of Appeals

Page 880

597 S.W.2d 880

Monique STEFFAN, Respondent, v. Daniel R. STEFFAN, Appellant.

No. WD 30713.

Missouri Court of Appeals, Western District.

April 7, 1980.

Edmund R. Lipowicz, II, Independence, for appellant.

Jack A. Cochran and Rose Anne Nespica, Cochran, Tyree, Oswald, Barton & McDonald, P. C., Blue Springs, for respondent.

Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.

SOMERVILLE, Judge.

Two appeals by the same party are pending in this dissolution of marriage case. One is an appeal by the husband from an order or judgment awarding the wife temporary maintenance and the other is an appeal by the husband from the decree entered in the dissolution of marriage proceeding.

The appeal from the dissolution decree questions the decretal provisions touching maintenance, attorney fees and the division of marital property. The appeal from the order or judgment awarding the wife temporary maintenance questions the amount of temporary maintenance awarded.

A statement of facts is appropriated at this point. On September 21, 1977, the wife filed a petition to dissolve a marriage of some twenty-one years standing. Neither party questioned the finding of the trial court that the marriage was irretrievably broken. Two of three children born of the marriage were living at the time of the trial, both of whom had become emancipated. Consequently, evidence adduced at the trial on November 13, 1978, principally dealt with matters of a more mundane nature money and property.

A division of marital property resulted, basically, in the wife receiving the family home valued between a low of $65,000.00 and a high of $72,800.00, subject to a deed of trust securing payment of a promissory note in the unpaid principal sum of $21,000.00 which the wife was obligated to pay, plus various items of personal property consisting of "household furniture, goods and appliances" and a 1972 Cougar automobile. The division of marital property resulted, basically, in the husband receiving an "office building" valued between a low of $50,470.00 and a high of $58,900.00, subject to a deed of trust securing payment of a promissory note in the unpaid principal sum of $39,000.00 which the husband was obligated to pay, a "four-plex" valued between a low of $17,407.00 and a high of $22,500.00, subject to a deed of trust securing payment of a promissory note in the unpaid principal sum of $18,000.00 which the husband was obligated to pay, a "four-plex" valued between a low of $10,463.00 and a high of $15,500.00, subject to a deed of trust securing payment of a promissory note in the unpaid principal sum of $9,500.00 which the husband was obligated to pay, plus a 1974 Cadillac, a 1959 Cadillac, a 1967 Cadillac, a 1967 "Princess Trailer", a 1969 "fishing boat and motor", and certain items of "household furniture, goods and appliances".

The wife, born in France and raised in Germany, had the equivalent of a high school education. During the marriage the wife's principal duties were that of housewife and mother, although she had, at indeterminate times, engaged in limited periods of employment outside the home. At the time of trial, however, she was regularly employed as an "assembly line worker" by an electronics firm. Her monthly take home pay was approximately $389.00. The monthly payments on the family home, which the wife was obligated to assume and pay by the terms of the dissolution decree, amounted to $252.00. The wife's estimated monthly living expenses, including the house payments, amounted to $875.00.

At the time of trial the husband was engaged in the business of selling real estate. Previously, he had been engaged in the business of selling life insurance. Joint income tax returns of the couple introduced in evidence showed adjusted gross income for 1974 in the amount of $19,091.00, for 1975 in the amount of $19,736.00, for 1976 in the amount of $17,770.00, and for 1977 in the amount of $17,700.00. They also disclosed that the wife contributed $1,557.00 to the adjusted gross income in 1974, $2,783.00 in 1975, nothing in 1976, and $2,605.00 in 1977. At the time of trial, to wit November 13, 1978, the husband testified that to date during 1978 he had earned approximately $3,000.00 to $3,500.00 in real estate commissions and had received approximately $4,000.00 in "residual commissions" from life insurance previously sold. Evidence adduced at the hearing on the wife's motion for temporary maintenance revealed that the husband was netting approximately $265.00 a month from the rental property which he ultimately received in the division of marital property. The husband's estimated monthly living expenses amounted to $900.00.

Refocusing on the appeal from the original decree the husband, with respect to the decretal provision as to maintenance, contends that the trial court "abused its discretion" in awarding the wife $350.00 per month as maintenance because the wife "did not meet the conditions required by Section 452.335.1(1), (2), RSMo 1978", and the amount awarded was "grossly excessive" as it "did not take into consideration the factors" of Section 452.335.2(1), (6), RSMo 1978. With respect to the decretal provision as to attorney fees, the husband contends that the amount awarded "was excessive". With respect to the decretal provision dividing the marital property, the husband contends the division was incomplete.

The standard of review in this court tried case is governed byRule 73.01.3 as explicated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), tempered only by due recognition of an additional element engrafted by Kieffer v. Kieffer, 590 S.W.2d 915, 919 (Mo. banc 1979), infra, regarding appellate review of awards of attorney fees.

First, as to the amount of maintenance, the husband contends that the evidence falls short of meeting legislatively mandated prerequisites of Section 452.335.1(1), (2), RSMo 1978: "In a proceeding for . . . dissolution of marriage . . . the court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance (1) (l)acks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (2) (i)s unable to support himself through appropriate employment . . . ." This contention rises or falls on the husband's legally shallow argument that if the wife sold the family home and invested the proceeds the income therefrom in conjunction with her earnings as an "assembly line worker" would amply support her. The husband's argument presupposes that the wife under existing law should be compelled to sell the family home. Such is a false premise. The family home, because of its non-income bearing feature, occupies a unique status in the case law of this state appertaining to dissolution of marriage proceedings. As noted in Brueggemann v. Brueggemann, 551 S.W.2d 853, 857 (Mo.App.1977), with reference to Section 452.335.1(1), (2), supra, and quoted with approval in Abney v. Abney, 575 S.W.2d 842, 844 (Mo.App.1978), "the focus of our statute seems more specifically on income-producing property . . . ." In re Marriage of Schulte, 546 S.W.2d 41, 49 (Mo.App.1977), and Arp. v. Arp., 572 S.W.2d 232, 234 (Mo.App.1978), are even more pointed, and make short shrift of the husband's argument by disavowing any duty on the part of the wife to "consume" the family home before being entitled to maintenance.

The remaining phase of the husband's attack on the decretal portion of the original decree awarding maintenance purports to be predicated upon Section 452.335.2(1), (6), RSMo 1978: "The maintenance order shall be in such amounts . . . as the court deems...