Thomas v. Thomas
| Decision Date | 04 June 2002 |
| Docket Number | No. WD 60171.,WD 60171. |
| Citation | 76 S.W.3d 295 |
| Parties | Robert F. THOMAS, Appellant, v. Jacqueline K. THOMAS, Respondent. |
| Court | Missouri Court of Appeals |
Joseph M. Nelson, St. Joseph, for Appellant.
Hugh D. Kranitz, St. Joseph, for Respondent.
Before VICTOR C. HOWARD, P.J., EDWIN H. SMITH and THOMAS H. NEWTON, JJ.
Robert F. Thomas appeals the trial court's judgment dissolving his marriage to Jacqueline K. Thomas. On appeal, Mr. Thomas raises three points of error in the trial court's award of maintenance to Ms. Thomas and two points of error in the trial court's division of marital property.
We reverse and remand.
Robert F. Thomas and Jacqueline K. Thomas were married on May 14, 1966. The parties separated in August 2000, and Mr. Thomas moved out of the home. The marriage produced three children, all of whom were emancipated at the time of the separation. At that time, their youngest son, Patrick, a full-time employee, was still living in the home.
Mr. Thomas filed for dissolution of marriage and Ms. Thomas answered, cross-petitioned for dissolution, and filed several motions. A hearing on Ms. Thomas' Motion for Temporary Child Support, Temporary Maintenance, and Temporary Attorney Fees was held. Ms. Thomas withdrew her request for temporary child support for Patrick, and her request for temporary attorney fees was denied. The trial court, however, did order retroactive temporary maintenance in the amount of $750 per month.
Afterwards, Mr. Thomas filed a motion to amend the order for temporary maintenance. Mr. Thomas had worked as a salesperson at Garfield Lumber in St. Joseph for seventeen years at the time the petition for dissolution was filed, but, thereafter, was terminated from his position as a result of a reduction in staff. He found other employment in Kansas City nearly one month later. It was estimated that his annual income decreased from $30,000 to $29,500. The dissolution action was set for hearing, and at the time, Mr. Thomas owed two months of temporary maintenance.
Ms. Thomas had not been employed outside the home during their thirty-four years of marriage. Periodically though, she performed psychic readings and obtained some compensation. After the couple separated, she applied for employment but was rejected.
Ms. Thomas estimated her total living expenses to be $1,242 per month. Patrick, the Thomas' son, continued to live with Ms. Thomas in the marital home and was working full-time. He assisted with the gas, electricity, water, sewer, and telephone expenses, which were included in her living expenses estimate. Patrick testified that his mother also received a total of $350 per month in rent from him and housemates, Wes and Judy Bayless.
During their marriage, Ms. Thomas had a fiduciary relationship with her mother, which resulted in a lawsuit. Separate judgments were issued against the Thomases. The judgment against Ms. Thomas was for conversion of money from her mother, and the judgment against Mr. Thomas was based on unjust enrichment. His income from Garfield Lumber was garnished, partially satisfying the judgment against him. After their separation, liens were placed against the marital home and, at the time of trial, there was approximately $31,000 of equity in the home.
Ms. Thomas was awarded periodic spousal maintenance in the amount of $750 per month, plus $1,500 in maintenance arrearages. In dividing property, the trial court determined that each spouse should retain his/her motor vehicle, bank account, and specified household items. The trial court held each spouse individually responsible for the personal judgments against them. Credit card debt was also divided as set out in the following table outlining the trial court's allocation of property and debt.
The trial court allocated the mortgage on their marital home as "Joint Debt." However, "so long as [Ms. Thomas] resides in the parties residence" she was ordered to "pay the monthly payment to [the bank] with respect to the parties [sic] joint obligation." The judgment further provided, "The parties' realty described as the East half of Block 8 in the original town, now the City of Savannah, Andrew County, Missouri, and known locally as 602 West Chestnut shall be sold." Mr. Thomas was directed to "place the property on the market for sale at $56,000 or at such price as is recommended by the real estate agent selected by [him]." Also, the parties.
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Property Allocated to Robert Thomas Property Allocated to Jacqueline Thomas
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Item Value Item Value
1984 Honda motorcycle $ 3,000 1984 Chrysler Lebaron $ 150
1989 Honda Accord $ 850 1990 Chrysler Lebaron $ 1,000
Miscellaneous household $ 3,080 Miscellaneous household $ 1,385
items, power tools, and furnishings and appliances
bicycles
Bank account at UMB $ 900 Bank account at Bank $ 250
Midwest
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Debts Allocated to Robert Thomas Debts Allocated to Jacqueline Thomas
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Item Value Item Value
SEARS credit card $ 5,236.90
Visa card (petitioner's $ 5,159 Visa card (respondent's $ 2,159.47
share) portion)
Judgment of Record $144,000 Judgment of Record $ 160,000
Mulligan v. Robert Mulligan v. Jacqueline
Thomas Thomas
Mortgage to Bank Midwest, ($ 23,899.48) Mortgage to Bank Midwest, ($ 23,899.48)
jointly. Mr. jointly, provided that
Thomas was ordered to she pays the monthly payment
sell the home at $ 56,000 with respect to the
or such price as is recommended joint obligation so long as
by his real she resides in the home
estate agent. Equity to Equity to be divided equally
be divided equally. upon the sale of the
home
The marriage was dissolved and this appeal was filed.
An appellate court will affirm a judgment of dissolution unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Hatchette v. Hatchette, 57 S.W.3d 884, 888 (Mo.App. W.D.2001).
Mr. Thomas raises three points on appeal concerning the trial court's award of maintenance to Ms. Thomas. In all three points, he claims that the trial court misapplied § 452.3351 in calculating its maintenance to Ms. Thomas in the amount of $750 per month. First, he claims that Ms. Thomas presented no substantial evidence to support a finding that she was unable to provide for her reasonable needs through employment. Next, he argues that the trial court failed to consider Mr. Thomas' ability to pay $750 per month in addition to meeting his own needs. Finally, he asserts that the trial court 1) did not consider substantial marital debt relief to wife as income; 2) did not impute minimum wage to wife or consider her ability to become self-supporting; 3) ignored uncontested evidence of rent income of $350 per month; and 4) did not consider the obligations or assets of either party for determination of the amount of maintenance. Essentially, he contends that the award does not reflect Ms. Thomas' ability to contribute to her own needs and that the amount is beyond his ability to pay.
In reviewing these contentions, we must view the evidence in the light most favorable to the judgment while disregarding all evidence and inferences to the contrary. See Hatchette, 57 S.W.3d at 892. The trial court is granted broad discretion in granting maintenance and in the division of property. Evans v. Evans, 45 S.W.3d 523, 526 (Mo.App. W.D.2001). On these matters, an appellate court will interfere with the trial court's allocation only if it is so unduly weighted in favor of one party that it constitutes an abuse of discretion. Wright v. Wright, 1 S.W.3d 52, 57-60 (Mo.App. W.D.1999). An abuse of judicial discretion occurs when a trial court's ruling 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. Id. at 57. In contesting maintenance, Mr. Thomas bears the burden of proving that the maintenance award shocks the appellate court's sense of justice. See Hatchette, 57 S.W.3d at 891.
The spouse seeking maintenance is required to demonstrate need before maintenance is awarded. See Griffin v. Griffin, 986 S.W.2d 534, 538 (Mo.App. W.D.1999). Section 452.335 governs an award of maintenance and provides a two-part threshold test for determining the propriety of such an award. See McIntosh v. McIntosh, 41 S.W.3d 60, 67 (Mo.App. W.D.2001). Section 452.335.1 states in part:
1. In a proceeding for nonretroactive invalidity, dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order...
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