Valentine v. Valentine

• Citation: 400 S.W.3d 14
• Decision Date: 16 April 2013
• Docket Number: No. ED 98167.,ED 98167.
• Parties: Christine VALENTINE, Respondent, v. Jody VALENTINE, Appellant.
• Court: Court of Appeal of Missouri (US)

400 S.W.3d 14

Christine VALENTINE, Respondent,
v.
Jody VALENTINE, Appellant.

No. ED 98167.

Missouri Court of Appeals,
Eastern District,
Division Five.

April 16, 2013.

[400 S.W.3d 19]

Lisa Adams, St. Louis, MO, for appellant.

Christopher T. Risler, Clayton, MO, for respondent.

ROBERT M. CLAYTON III, Judge.

Jody Valentine (“Husband”) appeals from the trial court's judgment dissolving his marriage to Christine Valentine (“Wife”). Husband raises eleven points of error on appeal concerning the award of maintenance, the distribution of marital and nonmarital property, the trial court's finding that he dissipated certain marital funds, the award of custody, the determination of residential parent, the award of child support, and the grant of Wife's attorney's fees. We reverse and remand the maintenance award for the trial court to consider Wife's ability to meet her reasonable needs in light of her portion of the marital assets. In all other respects, we affirm.

[400 S.W.3d 20]

I. BACKGROUND

The parties married in 1999, and two children were born of the marriage. The parties separated in December 2008, and Wife filed a petition for dissolution in January 2010.

Following trial, the trial court dissolved the marriage. The court ordered Husband to pay Wife $1,100 per month for modifiable maintenance, awarded the parties joint legal and physical custody of the two children, ordered Husband to pay Wife the amount of $1,401 per month in child support, set aside to Husband $33,000 in separate property for his nonmarital contribution to his retirement accounts, ordered the division of marital property and debts, and ordered Husband to pay $10,000 towards Wife's attorney's fees. This appeal follows.

II. DISCUSSION A. Rule 73.01 Findings

In his first point on appeal, Husband asserts that the trial court erred by failing to make written findings pursuant to his Rule 73.01¹ request. Husband reasserts this argument in various sub-points under points three, eight, and ten. We address all four identical allegations here exclusively.

Rule 73.01(c) states that “[t]he court may, or if requested by a party shall, include in the opinion findings on the controverted fact issues specified by the party.... All fact issues upon which no specific finding are made shall be considered as having been found in accordance with the result reached.” The provisions of Rule 73.01 are mandatory where a party properly requests findings of specific fact issues. Lattier v. Lattier, 857 S.W.2d 548, 549 (Mo.App. E.D.1993). However, the failure of a trial court to make such findings mandates reversal only when the trial court's failure to issue requested findings materially interferes with appellate review. Id. If the record supports the judgment or if the court makes findings that substantially comply with a party's requests, the appellate court will affirm. Cohen v. Cohen, 178 S.W.3d 656, 662 (Mo.App. W.D.2005). Here, the Judgment and its findings are sufficient to allow for appellate review, and thus any alleged Rule 73.01 errors are not grounds for reversal. Point one on appeal is denied.

B. Maintenance

In points two and three, Husband challenges the trial court's award of maintenance. Appellate courts must affirm the award of maintenance unless there is no substantial evidence to support it. Linton v. Linton, 117 S.W.3d 198, 205 (Mo.App. S.D.2003). The trial court has considerable discretion in determining a maintenance award, and to succeed on appeal, the appellant must show an abuse of that discretion. Ferry v. Ferry, 327 S.W.3d 599, 602 (Mo.App. E.D.2010).

1. Wife's Reasonable Needs

In point two, Husband challenges the trial court's award of maintenance asserting the court did not determine Wife's reasonable needs in light of the marital property awarded her and her appropriate employment. We agree.

In a proceeding for dissolution of marriage, a court may award maintenance to a spouse “only if it finds the spouse seeking maintenance: (1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (2) Is unable to support himself through appropriate employ

[400 S.W.3d 21]

ment....” Section 452.335.1.² Maintenance is limited to the needs of the recipient. Schubert v. Schubert, 366 S.W.3d 55, 64 (Mo.App. E.D.2012).

Here, Wife testified at trial that she anticipated monthly expenses equaling $3,999.³ The court calculated her reasonable monthly expenses to be approximately $3,800. While the trial court did not specify the basis for its calculation of Wife's reasonable expenses, our review of the record shows that number is consistent with the evidence. See Cohen, 178 S.W.3d at 662. First, Wife testified these expenses were incurred solely for herself, with the exception of the $78 gym membership, which also covered the children. Because expenses on behalf of the parties' children are not included in the maintenance calculation, it appears the trial court properly credited her for only half of the gym membership cost. See Schubert, 366 S.W.3d at 64. Second, Wife testified that in an effort to downsize her expenses in the future, she would not maintain her housekeeping expenses of $160 per month. It appears the trial court did not find housekeeping a necessary expense. Subtracting these two amounts from the $3,999 asserted by Wife at trial, the record supports the court's finding of reasonable monthly expenses of approximately $3,800. See Lattier, 857 S.W.2d at 549;Cohen, 178 S.W.3d at 662.

After determining a spouse's reasonable needs, the court next considers whether the spouse lacks sufficient property, including marital property apportioned to her, to provide for these reasonable needs, or is unable to support herself though appropriate employment. Section 452.335.1. Husband asserts here that Wife was awarded sufficient marital property to meet her needs and the trial court erred in failing to consider whether the marital property awarded her was income producing.

At trial, Wife testified she received a monthly net income of $2,654 and anticipated an approximate 2.3 percent raise. Accordingly, the court determined that Wife's net income was $2,700 per month. Based on Wife's income and reasonable needs, the court concluded she “had a shortfall” of approximately $1,100 per month and required maintenance. On these facts, the court ordered maintenance in the amount of $1,100 per month.

Although the trial court stated it determined the maintenance award “pursuant to Section 453.335,” we find that the court failed to consider fully whether Wife could provide for her needs through use of property, including the marital property apportioned her in the dissolution. The court awarded Wife $282,540 in marital assets, including $260,500 in marital and nonmarital IRAs and retirement accounts. While a spouse is not required to deplete or consume his or her portion of the marital assets before being entitled to maintenance, a court must consider whether the spouse can earn income from his or her share of the marital property. Schubert, 366 S.W.3d at 64–65. “Failure to consider

[400 S.W.3d 22]

the recipient spouse's reasonable expectation of income from investment of the marital property constitutes error.” Id. at 65 (quoting Breihan v. Breihan, 73 S.W.3d 771, 777–78 (Mo.App. E.D.2002)). The trial court may, after consideration, include or exclude income attributable to retirement and IRA accounts awarded as marital property in the calculation of maintenance; however, the court must first consider such income. Hill v. Hill, 53 S.W.3d 114, 116 (Mo. banc 2001). Point two on appeal is granted. We reverse and remand for the court to consider Wife's ability to meet her reasonable needs in light of her portion of the marital assets.

2. Husband's Ability to Pay

In point three, Husband challenges the trial court's award of maintenance, asserting the court did not consider his ability to pay maintenance in light of the child support award.⁴ Specifically, he asserts the trial court incorrectly calculated his income, failed to consider the child support payments Wife will receive, and did not consider his ability to pay. We disagree.

Once the court determines a spouse is entitled to maintenance, the court shall order an amount it deems just, after considering all relevant factors, such as: (1) the financial resources of the party seeking maintenance, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian; (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 marital and nonmarital property apportioned to each party in the dissolution; (6) the duration of the marriage; (7) the age and physical 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(1)-(10). Again, the trial court has considerable discretion in determining the amount of the maintenance award. Ferry, 327 S.W.3d at 602.

In the Judgment, the trial court noted the financial resources of each party, the “equal[ ]” apportionment of marital assets and obligations, the comparative education levels and earning capacity of each spouse, the 9–year duration of the marriage, the age and health of the parties, and the conduct of the parties during the marriage. Section 452.335.2. While the trial court did not specifically analyze Husband's ability to meet his needs while paying maintenance, the court noted Husband earns a gross income of at least $137,500 per year, while Wife earns a gross income of $51,200 per year. Based on these facts, the court found Husband “earns...