Sweet v. Sweet

• Decision Date: 08 February 2005
• Docket Number: No. WD 63736.,WD 63736.
• Parties: Kathy Louise SWEET, Respondent, v. Ryan James SWEET, Appellant.
• Court: Missouri Court of Appeals

154 S.W.3d 499

Kathy Louise SWEET, Respondent, v. Ryan James SWEET, Appellant.

No. WD 63736.

Missouri Court of Appeals, Western District.

February 8, 2005.

Karl Heinz Timmerman, Holden, MO, for Appellant.

Dennis Bernard Bosch, Independence, MO, for Respondent.

Before PATRICIA BRECKENRIDGE, P.J., JAMES M. SMART, JR., and PAUL M. SPINDEN, JJ.

JAMES M. SMART, JR., Judge.

This is an appeal from a dissolution of marriage, in which Ryan James Sweet appeals the trial court's award of non-modifiable maintenance to Kathy Louise Sweet. He contends that the maintenance award should have been made modifiable and contests the amount of the award. The judgment is affirmed in part and reversed in part.

Statement of Facts

Ryan Sweet (Husband) and Kathy Sweet (Wife), both of whom served in the 1991 Gulf War, were married in August 1992. They separated in May 2001. No children were born of the marriage. Wife filed her petition for dissolution in August 2001, and Husband filed a counter-petition in November 2001. Wife's petition included a request for maintenance. A dissolution hearing was held on November 26, 2003. At the commencement of the hearing, the parties stipulated to the court "that [Wife] has a need of maintenance." During the last few months of the separation, Husband paid $250.00 per month in temporary maintenance by agreement of the parties.

The evidence adduced at trial showed that Wife suffers from numerous health problems, which both parties describe as Gulf War Syndrome. Wife's neurological deficit disorder is considered progressive in nature. She gets confused easily, has stability problems, and suffers from other complications, including hyper-coagulation, muscular-skeletal disorder, and degeneration. As a result of those health problems, Wife quit her job as a nurse in December 1999 and has not worked since that date. Wife receives disability benefits totaling $1,311.00 per month — $866.00 per month from Social Security and $445.00 per month from the military.¹ In March 2002, Wife received a lump sum payment of $14,136.75 for retroactive benefits from Social Security.² She also received a lump sum payment of $10,000.00 from the military in March 2003. Wife testified, however, and the court found, that those amounts had been expended prior to trial for Wife's necessary living expenses and for her medical and prescription expenses. The court found that "no credible evidence was presented that [Wife] had not used the money as she had testified or that [she] was concealing the funds from disclosure."

The court found that Wife has monthly expenses of "at least" $2,191.00. That figure includes $270.00 per month for supplemental health insurance from AARP and $620.00 for out-of-pocket expenses for her medications. The supplemental health insurance would be necessary immediately following the dissolution, Wife testified, when she would be dropped from Husband's employer's insurance. Although Wife receives some prescription benefits in connection with her military disability, additional insurance is needed to cover all of her prescriptions. She testified that the cost of all her prescriptions without any insurance coverage would be $4,100.00 per month.

Husband's average net income is $3,382.00 per month, including overtime pay and income from the United States Army Reserves. The court found that, "although the evidence was inconsistent and contradictory," Husband has monthly living expenses of $984.00. Both Husband and his girlfriend, with whom he was living at the time of trial, testified that Husband shared living expenses equally with her. Although Husband claimed $2,665.83 in expenses on his Second Amended Income and Expense Statement and testified to that amount, he also admitted at trial that many of those amounts were not correct.

The evidence showed that when the parties separated, Wife continued to live in the marital home and Husband moved out. Wife owned the house prior to the marriage. Wife testified that in 1997, she reluctantly added Husband's name to the title when they refinanced the mortgage. Sometime after the separation, but prior to the dissolution, Husband paid Wife $5,000.00 (apparently with money provided by his girlfriend) for her share of the equity in the house in return for her quitclaiming it over to him. Wife testified that she agreed to this because she was not working at the time and could not pay the mortgage and because she needed the money. Shortly thereafter, Husband transferred the house to his girlfriend. Husband and his girlfriend were living together in the house at the time of trial.

The evidence also showed, and the trial court found, that Husband had concealed from Wife a $50.00 deduction from each of his paychecks, which he used to purchase savings bonds that he put in his girlfriend's name.

On December 29, 2003, the trial court entered its judgment, setting aside to each party their non-marital property, dividing the marital assets and debts and Husband's military pension, ordering Husband to pay Wife's attorney's fees, and granting Wife a judgment for her share of the savings bonds. The court also awarded Wife $1,000.00 per month in non-modifiable maintenance.

Husband appeals the maintenance award.

Standard of Review

The trial court's judgment in a dissolution case will be affirmed 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. In re Marriage of Murphy, 71 S.W.3d 202, 205 (Mo.App.2002) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). We view the evidence in the light most favorable to the decree, disregard evidence to the contrary, and defer to the trial court even if the evidence could support a different conclusion. Burnett v. Burnett, 18 S.W.3d 27, 30 (Mo.App.2000). Credibility issues are for the trial court to resolve, and we will assume that all factual issues were resolved in favor of the judgment entered. In re Kreutzer, 50 S.W.3d 334, 337 (Mo.App.2001).

A trial court has broad discretion in setting the amount and duration of a maintenance award; accordingly, such an award is reviewed only for an abuse of discretion. Murphy, 71 S.W.3d at 205. An abuse of discretion will be found only where the award is "clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable people can differ about the propriety of the action taken by the trial court, it cannot be said the trial court abused its discretion." Goodin v. Goodin, 5 S.W.3d 213, 216 (Mo.App.1999). The party contesting the maintenance award has the burden of establishing that it amounts to an abuse of discretion. Burnett, 18 S.W.3d at 29.

Point on Appeal

Husband argues in a single point on appeal that the court abused its discretion in awarding an amount of maintenance based on "anticipated future medical expenses" rather than current needs, and that the court abused its discretion in awarding non-modifiable maintenance as opposed to modifiable maintenance.

The Maintenance Award

Before maintenance can be awarded, the two-part threshold test found in section 452.335.1, RSMo 2000,³ must be satisfied. That test requires the party seeking maintenance to establish: (1) that she lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs, and (2) that she is unable to support herself by appropriate employment. Kreutzer, 50 S.W.3d at 337; § 452.335.1.

Once the court determines that maintenance is warranted, the court considers a list of factors set forth in section 452.335.3 in determining the amount and duration of maintenance. Kreutzer, 50 S.W.3d at 337-38. That statute provides in pertinent part:

The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:

(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently ...;

(2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance 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 property apportioned to him and the separate property of each party;

(6) The duration of the marriage;

(7) The age, and the 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 factors.

Section 452.335.2 gives broad discretion to the trial court in applying the factors on which the award is to be based. Hammer v. Hammer, 139 S.W.3d 239, 241 (Mo.App.2004). The court is to apply the factors so as to balance the reasonable needs of the spouse seeking maintenance against the ability of the other spouse to pay. Id.

Here, after noting in its judgment that Wife had requested maintenance and that the parties had stipulated that she is in need of maintenance,⁴ the court held:

After consideration of all relevant factors, the Court finds there is necessity to award maintenance to [Wife]. [Wife] lacks sufficient property to meet her reasonable needs, and [Wife] is unable to support herself through appropriate employment. The Court further takes into consideration the financial resources of the parties, and comparative earning capacities; the physical condition of [Wife]; and [Husband's] ability to meet his own needs in setting the monthly amount of maintenance [Husband] should pay to [Wife].

The court determined, after considering all relevant factors, that Wife was in...