Ennenbach v. Ennenbach

488 S.W.2d 261, 1972 Mo. App. LEXIS 664
CourtMissouri Court of Appeals
DecidedDecember 4, 1972
DocketNo. 25921
StatusPublished
Cited by1 cases

This text of 488 S.W.2d 261 (Ennenbach v. Ennenbach) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ennenbach v. Ennenbach, 488 S.W.2d 261, 1972 Mo. App. LEXIS 664 (Mo. Ct. App. 1972).

Opinion

LAURENCE R. SMITH, Special Judge.

This is a divorce case in which defendant on appeal challenges the award of alimony to plaintiff wife.

Plaintiff filed for divorce and defendant cross filed for divorce. There was a contested hearing on July 30, 1971 at which both parties and their respective attorneys appeared. However defendant did not testify, nor did he offer any evidence.

By judgment entry of August 25, 1971 the trial court dismissed the defendant’s cross-petition, granted plaintiff a divorce and awarded plaintiff “alimony of $15,000 and $250 per month, and attorney fee of $450.” Following the filing of a motion for new trial by defendant the court made the following entry on September 24, 1971:

“Decree amended to provide that plaintiff be restored to her maiden name, Ester L. Belfield, and that any amount received by plaintiff since decree of August 25 from joint account in Marceline Home Savings and Loan shall be credited as payment on $15,000.00 gross alimony. Motion for New Trial overruled.”

On appeal, defendant contends: (1) the court erred in awarding any alimony; (2) if plaintiff is entitled to any alimony the amounts awarded are grossly excessive; and (3) if the evidence is too meager for this court to make an intelligent decision on the question of alimony, it would be appropriate to remand the case for retrial on the issue of alimony.

The judgment of the trial court should “not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Rule 73.01 (d) V.A.M.R.

The granting of alimony to a wife who obtains a divorce is not mandatory. It is discretionary with the Court. Section 452.-080 V.A.M.S. Smith v. Smith, 350 Mo. 104, 164 S.W.2d 921, 923.

Among the factors to be considered in the awarding of alimony are "the financial status of the respective parties, including the question of their individual estates, incomes, obligations and necessities; the contribution of each to the accumulated property; the probable future prospects of each; their respective ages, health and ability to follow gainful occupations; their stations in life; their children, if any; the duration of the marriage, and whether it was one of affection or convenience; and the conduct of the parties, with particular regard to the cause of the divorce and the relative or comparative responsibility of [263]*263each other therefor.” Simmons v. Simmons, Mo.App., 280 S.W.2d 877, 880.

At the time of trial (July 1971) plaintiff was 42 and defendant was 43. They were married June 5, 1965 and separated January 6, 1970. No children were born of the marriage although plaintiff had two miscarriages. It was the first marriage for plaintiff and the second for defendant.

Plaintiff’s grounds for divorce were based upon defendant’s absence from the home, his association with other women, his failure to take out the plaintiff, and his indifference towards plaintiff. Although plaintiff left the home, she testifies she would have come back if defendant had tried to make the marriage work.

Defendant is a veterinarian. At the time of the marriage in 1965 he owned a one-half interest in the Green Hills Animal Hospital at Marceline. He had obligated himself in the amount of $15,000 to a Dr. DeWeese for his half interest. He and Dr. DeWeese were the joint owners of a 1957 one-bedroom house trailer. The value of it was not shown.

Defendant’s total debts at the time of his marriage (including an indebtedness on the trailer, on a car and on the half interest in the business) were $20,295.

At the time of the marriage plaintiff owned a 1965 Buick for which she had paid $3,300. In addition she brought into the marriage some $2,100 in cash and various household items. Soon after the marriage she acquired $1,251 from insurance, which sum she deposited in their joint account.

In 1969 defendant bought out the other half interest in the animal hospital from a Dr. Thorne for $2,000 in cash and the assumption of a $7,500 note payable to Dr. DeWeese.

Defendant was drawing out $900 per month from the business at the time of the marriage. This had been increased to a draw of $1,000 per month as of the time of the separation of plaintiff and defendant in 1970.

During the marriage plaintiff had no employment for which she received compensation. Federal joint income tax returns showed adjusted gross income as follows:

1965 — $13,515

1966 — $12,053

1967 — $13,716

1968 — $13,295

1969 — $10,008

1970 — $ 6,961

Income tax returns for 1965 through 1968 show the income coming largely from the partnership of Green Hills Animal Hospital. The 1969 return shows $7,015 income from the partnership and $2,558 income from a sole proprietorship, plus some interest income. Gross receipts for defendant for his sole proprietorship in 1969 are shown on Schedule C as $36,563 and gross profit is shown as $26,985.

The Schedule C form for 1970, showing profit or loss from the sole proprietorship, shows gross receipts of $70,487, gross profit of $50,978 and net profit of $6,491. The adjusted gross income of $6,961 shown on the 1970 income tax return is made up of the above stated net profit plus $470 interest.

Plaintiff testified that she offered to work during the marriage but that defendant wouldn’t let her. However plaintiff took phone calls for defendant at night for every other week during the weekdays, and on the weekends. Toward the latter part of the marriage plaintiff substituted for others at the animal hospital on Saturday.

At the time of separation in 1970 defendant was the full owner of the animal hospital. He owned no real property. The premises were leased. Included in the assets of the hospital were at least two trucks, accounts receivable which ran from $11,000 to $12,000, medicines, office equipment, air conditioner and furniture. Defendant also still owned a half-interest in the 1957 trailer house, which trailer house was fully paid for.

[264]*264At the time of separation defendant still owed a total.of some $16,300 to $16,800 on two notes for the business. One of the notes calls for monthly payments of $160. One note will be paid off in 1975 and one will be paid off in 1977. Also some $6,040 was owing by defendant and plaintiff on a 1969 truck that is used in the business. Another truck used in the business under a lease-buy arrangement requires monthly payments of $157. Plaintiff testified that these two trucks were owned by defendant. Defendant’s total indebtedness at separation was $23,890.

At separation plaintiff and defendant were the owners of a joint account at Mar-celine Savings and Loan in the amount of $11,125.03. This account is pledged to secure payments for the 1969 truck used in defendant’s business.

At the time of separation plaintiff still had her 1965 Buick (titled in the names of plaintiff and defendant), but which wouldn’t run. She also had a one-half interest in a house at New Cambria, where she has been living with her parents. Her only other assets were some clothes and a few household items.

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Related

Smith v. Sayles
637 S.W.2d 714 (Missouri Court of Appeals, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
488 S.W.2d 261, 1972 Mo. App. LEXIS 664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ennenbach-v-ennenbach-moctapp-1972.