Stewart v. Stewart

• Decision Date: 16 November 1993
• Docket Number: No. 62957,62957
• Citation: 866 S.W.2d 154
• Parties: Helen G. STEWART, Respondent, v. Gary L. STEWART, Appellant.
• Court: Missouri Court of Appeals

Page 154

866 S.W.2d 154

Helen G. STEWART, Respondent, v. Gary L. STEWART, Appellant.

No. 62957.

Missouri Court of Appeals,

Eastern District,

Division Four.

Nov. 16, 1993.

Rehearing Denied Dec. 16, 1993.

John K. Greider, Clayton, for appellant.

Michael C. Walther and Rochelle Kaskowitz, St. Louis, for respondent.

AHRENS, Judge.

Husband appeals from the trial court's award of temporary maintenance pendente lite in a dissolution of marriage action. Wife cross-appeals from the child support award. We affirm the temporary maintenance award as modified and remand as to temporary child support.

The parties were married on January 2, 1971. Wife filed for divorce on December 13, 1991, and the parties separated in April, 1992. On July 14 and 15, 1992, the court heard the parties' pendente lite (PDL) motions for custody, child support and maintenance. At the time of the hearing, the parties had two daughters, Hillary and Brooke, ages fourteen and eleven, respectively.

From 1982 to 1992, Husband was employed by various companies under the control of Wife's family. He earned approximately $57,000 in 1991 and continued to earn that salary until his termination. In January, 1992, after Wife filed for divorce, Husband transferred $20,000 from a joint investment account to a joint checking account without Wife's knowledge. Soon after, Husband borrowed $30,000 on the couple's home equity line of credit and placed the money in an individual account. Shortly thereafter, Wife terminated Husband's employment. At the time of the hearing, Husband had been unable to locate another job and had received four unemployment insurance checks in the amount of $175 per week.

The court awarded split custody of the daughters, Brooke to Husband and Hillary to Wife. On September 8, 1992, the court ordered Wife to pay $500 monthly child support to Husband for Brooke, and monthly maintenance to husband of $2,500, or, in the alternative, Wife could employ Husband at one of her companies and pay him $2,500 a month. The court amended the child support order on September 10 to require Wife to pay $860 per month for Brooke. Both parties filed motions to amend the judgment, and on October 23, 1992, the court set aside the September 10 amendment and amended the original judgment to order Wife to pay $837 in child support to Husband for Brooke. Husband appeals the temporary maintenance award.

Wife filed a motion in the trial court requesting a correction of a mathematical error in the court's computation of the child support amount awarded Husband as support for Brooke, seeking that the court take into consideration Wife's support of Hillary, the daughter in her custody. The trial court declined to rule on Wife's motion, finding that it had lost jurisdiction when the PDL award was first appealed. Wife appeals the trial court's calculation of her child support obligation.

We will uphold the trial court's order granting husband temporary maintenance and child support 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The court's discretion in awarding temporary maintenance pendente lite is broader than at the dissolution hearing and a reviewing court is extremely cautious about altering judgments regarding such allowances because they are temporary and their effects do not extend beyond the final hearing of the case. Camden v. Camden, 844 S.W.2d 75, 78 (Mo.App.1992).

Husband first argues that the trial court erred in adopting Wife's proposed order as its own. Apparently, the trial court entered the findings as submitted by Wife in its original order. Husband cites no authority which is dispositive, but claims that such a practice is not in compliance with Rule 73.01. This Rule, however, does not address the issue of whether the court may adopt a party's suggested findings as its own. Rather, it states that "[t]he court shall render such judgment that it thinks proper under the law and the evidence." Rule 73.01(a)(2). There is no basis for a determination that the findings and conclusions of the trial court are erroneous if they are supported by the evidence. Kansas City Hill Restaurant v. Dean's Fairmount Co., 847 S.W.2d 472, 476 (Mo.App.1992). An examination of the record reveals that the court's findings are supported by the evidence. Point denied.

Husband's second and third points are linked and will be discussed together. In the second point, Husband contends that the court erred in making findings which were not in evidence nor a reasonable inference drawn from the evidence. Husband complains of several of the findings in the court's September 8, 1992 order but then admits that many of these were significantly corrected in the court's amendments of the original order. Husband is then left with his allegation of error as presented in point three, which is that the trial court erred in imputing income of $3,258 per month to Husband.

"A court may, in proper circumstances, impute an income to a husband according to what he could have earned by the use of his best efforts to gain employment suitable to his capabilities." Garrison v. Garrison, 846 S.W.2d 771, 775-76 (Mo.App.1993). Unless there is evidence that a party's unemployment is other than temporary, a court may impute the amount of demonstrated earning capacity for the PDL award. Foster v. Foster, 844 S.W.2d 559, 562 (Mo.App.1992). In this case, Husband testified as to his extensive education and work experience. He stated that he was capable of earning $60,000 to $75,000 a year. In addition, there was no evidence which indicated that Husband's unemployment situation was not temporary. Given the evidence, the court could have reasonably found that Husband would be able to earn such an amount if he were to put forth his best efforts to gain suitable employment. The court did find that Husband was capable of earning $3,258 per month and imputed that amount to him as income. This finding is supported by substantial evidence and is not an abuse of discretion. Points denied.

Husband next claims that the court erred in the amount of the temporary maintenance award because it required him to deplete marital assets or borrow money to meet expenses. After considering the factors set forth in § 452.335.2 RSMo 1986, the court ordered Wife to pay maintenance of $2500 per month or to provide Husband with a job paying that amount. Husband argues that he should receive $4300 per month in maintenance because his expenses exceed his income by that amount. Since the court only ordered Wife to pay $2500, he contends that the court is requiring him to deplete marital assets or borrow money to meet his expenses. The court, however, found that Husband had only put forth a limited effort in securing a position to support himself. The court further found that Husband has the education, advanced degrees and substantial background to be employed and that he therefore has an obligation to support himself through appropriate employment. Since the court found Husband to be capable of supporting himself, its maintenance order does not require Husband to deplete marital assets or borrow money to cover his expenses. As was stated previously, a court's discretion in awarding temporary maintenance is broad and we are to be cautious about altering such judgments. Camden, 844 S.W.2d at 78. In ordering Wife to pay maintenance of $2500 per month, the court did not abuse its discretion.

Husband's fifth point asserts that the court erred in making its maintenance award to Husband self-modifying or terminable based on future speculative events. The court ordered Wife to pay maintenance of $2500 per month. The order provided that if Wife were to make available to Husband a position at one of her companies with a salary of $2500 per month or more, then Wife will have satisfied her financial obligation to Husband. The order also provided that should Husband not accept such a position or refuse to perform all reasonable duties assigned to him, either party may petition the court for further orders. Husband complains of these provisions even though he suggested such an arrangement in the proposed orders he submitted to the trial court. Husband argues that these provisions are based on future speculative events and will make it difficult for him to find a job paying more than $2500 per month because he will be working full time and not have adequate time to search for other employment.

"Awards of limited duration should not be based on speculation as to the future conditions of the parties. Awards of limited duration are entirely proper when the trial court has before it evidence of some impending change in the financial conditions of the parties or at the least some reasonable expectation that such a change will occur." Reeves v. Reeves, 768 S.W.2d 649, 651 (Mo.App.1989). If there is a rational basis to support the court's determination, then an award of limited maintenance should stand. Pemberton v. Pemberton, 756 S.W.2d 660, 662 (Mo.App.1988). The court formulated its alternative maintenance arrangement in accordance with Husband's proposed orders. "[A] party is estopped or waives his right to appeal when a judgment, order, or decree was entered at his request." State ex rel. Fletcher v. New Amsterdam Cas. Co., 430 S.W.2d 642, 645 (Mo.A...