Summerville v. Summerville

• Decision Date: 09 November 1993
• Docket Number: Nos. WD,s. WD
• Citation: Summerville v. Summerville, 869 S.W.2d 79 (Mo. App. 1993)
• Parties: Karen Lee SUMMERVILLE, Respondent, v. James Clifford SUMMERVILLE, Appellant. Karen Lee SUMMERVILLE, Appellant, v. James Clifford SUMMERVILLE, Respondent. 47041, 47177.
• Court: Missouri Court of Appeals

Page 79

869 S.W.2d 79

Karen Lee SUMMERVILLE, Respondent, v. James Clifford SUMMERVILLE, Appellant.

Karen Lee SUMMERVILLE, Appellant, v. James Clifford SUMMERVILLE, Respondent.

Nos. WD 47041, 47177.

Missouri Court of Appeals Western District.

Nov. 9, 1993.

Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 28, 1993.

Application to Transfer Denied Feb. 22, 1994.

David P. MaCoubrie, Chillicothe, for appellant.

Richard E. McFadin, Kansas City, for respondent.

Before ULRICH, P.J., and BERREY and SMART, JJ.

SMART, Judge.

This appeal and cross-appeal arise from a dissolution decree. James Clifford Summerville ("Husband") appeals from the trial court's order requiring him to pay maintenance, child support and a cash payment for half of his interest in an insurance company. Karen Lee Summerville ("Wife") appeals from the trial court's order restricting the duration of the maintenance award to thirty-six months, finding certain real estate parcels acquired after the marriage to be non-marital property and denying her request for an award of attorney's fees.

Judgment is affirmed in part and reversed and remanded in part.

Husband and Wife were married on June 17, 1967 and separated on January 1, 1992. Three children were born during the marriage. Two are unemancipated. Husband owns and operates an insurance agency. Wife works part-time at a newspaper.

The trial court ordered Husband to pay $600.00 per month in maintenance to Wife, which was limited to thirty-six months, and $800.00 child support per month for the two unemancipated children. The trial court found that the insurance company had a net value of $116,721.00 and ordered Husband to pay Wife $58,360.50 as one half interest in the insurance company. Further, the trial court divided marital and non-marital property, finding two real estate parcels acquired during the marriage to be non-marital property. No attorney's fees were awarded to either party and court costs were divided between the parties. Husband and Wife both appeal from the trial court's order. Appellate review of this action is governed by the standards set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), and the trial court's judgment should be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously applies or declares the law.

Valuation of Insurance Agency

During the Summerville marriage, in 1972, Husband joined his father working in the Summerville Insurance Agency, which was started in 1910 by Husband's grandfather. In 1985, Husband and Denny Lightner consolidated their respective insurance agencies. In 1990, Husband purchased Mr. Lightner's interest in the agency.

Husband argues that the trial court erred and abused its discretion in the valuation of the insurance agency. Husband claims that the trial court's order was not supported by substantial evidence. Husband complains that the trial court's valuation fails to take into account the debts or liabilities of the business and that the value of the business could not be ascertained without consideration of the liabilities and remaining profit upon sale of the business.

No expert testimony was presented concerning the value of the insurance agency at trial. On direct examination, Husband failed to specify a value. On cross-examination, Husband testified that the insurance agency had "minimal value," if any value at all. The trial court was not required to accept Husband's comments on valuation. In re Marriage of Lewis, 808 S.W.2d 919, 925 (Mo.App.1991). The trial court has the option of believing all, part or none of any witness' testimony. In re Marriage of Felkner, 847 S.W.2d 144, 147 (Mo.App.1993). Husband purchased his partner's interest in the business in 1990 for about $97,500.00. At the time of trial, Husband still owed his former partner, Mr. Lightner, $51,900.00 for the purchase. At the time of that transaction, the business was worth approximately $182,000.00. Husband and Wife had loaned the corporation $20,000.00, which had an outstanding balance of $12,400.00 at the time of trial. Ultimately, the trial court valued the company at $116,721.00.

The trial court's determination of value was within the range of evidence. When the trial court's valuation of an asset is "within the range of evidence, an appellate court generally will not find the determination erroneous or weigh the evidence." Theilen v. Theilen, 847 S.W.2d 116, 119 (Mo.App.1992). The trial court did not err in valuing the company at $116,721.00 and in ordering Husband to pay to Wife $58,360.50 for half of his interest in the insurance company. Point is denied.

Maintenance Award

Next, Husband contends that the trial court erred and abused its discretion in awarding maintenance to Wife in the amount of $600.00 per month because the award was not supported by substantial evidence. Husband urges that the maintenance award was unwarranted and wholly beyond the means of Husband to pay. Further, Husband urges that Wife has the ability to properly care for herself.

Section 452.335, RSMo Supp.1991 gives the trial court "great latitude" in awarding spousal maintenance. Theilen, 847 S.W.2d at 123. Husband complains that Wife failed to satisfy the two-pronged test set forth in § 452.335. This section allows the trial court to award maintenance if it finds that the spouse seeking maintenance: "(1) Lacks sufficient property, including marital property appropriated to him [or her], to provide for his [or her] reasonable needs; and (2) Is unable to support himself [or herself] through appropriate employment...." In calculating a maintenance award, the trial court utilizes a balancing test which compares the reasonable needs of the party seeking support with the ability of the other spouse to pay. Theilen, 847 S.W.2d at 123. An appellate court should not disturb a maintenance award unless the decree is "patently unwarranted or is wholly beyond the means of the spouse who pays maintenance." Sinclair v. Sinclair, 837 S.W.2d 355, 360 (Mo.App.1992).

The trial court must hear all the pertinent evidence of the parties and make a determination of whether maintenance should be ordered. The trial court is in the best position to assess the credibility of the witnesses, and it is free to believe all, part or none of any witness' testimony. Felkner, 847 S.W.2d at 147. Wife requested that Husband be ordered to pay her maintenance in the amount of $1,235.52 per month. There is no evidence in the record showing that Husband challenged any of the expenses or calculations Wife used in arriving at this figure. Wife had completed two years of college courses. She worked part-time at the Chillicothe Constitution Tribune. Wife testified that she had worked some in the insurance agency with her husband but did not have the qualifications or experience to get a job in the insurance industry at this time. She also had worked as a substitute teacher, but is currently unable to substitute teach because she no longer possesses the required certificate. She had briefly tried to start a typing service, but had to cease the service when her printer broke and she did not have the funds to repair it. She testified that she was currently seeking full-time employment, but had been unsuccessful up to this point in attaining such employment. Husband also acknowledged wife had been unsuccessful in securing more favorable employment.

The trial court did not err in awarding Wife maintenance in the amount of $600.00 a month. The award is not "patently unwarranted" or wholly beyond the means of Husband to pay. Husband has not only his insurance agency, but other property and assets as well. Therefore, this part of Point II is denied.

Child Support Award

In the same point in which Husband challenges the maintenance award, he also contends that the trial court erred and abused its discretion in deviating from the child support guidelines and ordering Husband to pay $800.00 per month in child support for the two unemancipated children because the award was not supported by substantial evidence.

Adjudication of child support awards is governed by Rule 88.01. Rule 88.01 creates a rebuttable presumption that the child support amount calculated pursuant to Form 14 is the amount of support to be awarded in a dissolution of marriage action. The rule further provides that the presumption can be rebutted if the court makes a written or specific finding on the record that the amount of child support calculated in accordance with Form 14 is "unjust or inappropriate." The guidelines set forth in Rule 88.01 must be applied in all child support cases. Sinclair, 837 S.W.2d at 358.

In this case, both Husband and Wife submitted Form 14 worksheets. The trial court entered a finding that the Form 14 guideline amount was unjust or inappropriate and awarded the sum of $800.00 per month ($400.00 per month per child), for the two unemancipated children. The trial court did not include its own Form 14 in its order or indicate what amount was found to be unjust or inappropriate. Thus, the trial court failed to show that the amount which would have been determined in accordance with Form 14 had been specifically considered. See Sinclair, 837 S.W.2d at 358. Nor did he identify either spouse's Form 14 amount as the basis for his finding. Furthermore, the trial court failed to enunciate any factors relied upon in making the finding that the guideline amount was unjust or inappropriate. At trial, Wife did not testify as to the needs of the children. In her interrogatory answers, she requested that child support be awarded in accordance with the Rule 88.01 guideline amount. She relied upon her income and expense statement which showed costs at $553.00 attributable to the children.

This court is unable to determine how the trial court calculated the child support. The record does not explain the award of $800.00 per month....