Liberty v. Liberty

826 S.W.2d 381, 1992 Mo. App. LEXIS 484, 1992 WL 47523
CourtMissouri Court of Appeals
DecidedMarch 17, 1992
Docket58671
StatusPublished
Cited by12 cases

This text of 826 S.W.2d 381 (Liberty v. Liberty) 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
Liberty v. Liberty, 826 S.W.2d 381, 1992 Mo. App. LEXIS 484, 1992 WL 47523 (Mo. Ct. App. 1992).

Opinion

SATZ, Judge.

Edward J. Liberty (Husband) appeals from the trial court’s decree of dissolution from Gail Liberty (Wife). Husband challenges the decree on four grounds: (1) the court failed to state whether the amount of maintenance awarded to Wife was modifiable; (2) the amount of maintenance awarded is excessive; (3) the court lacked authority to order Husband to maintain medical and hospitalization insurance for Wife; (4) the order requiring Husband to maintain such insurance was too vague and indefinite to be valid.

We affirm in part and reverse and remand in part.

Husband and Wife were married on June 14, 1969. Two children were bom of the marriage, James and Jeffrey. At the time of trial, the children were 20 and 17 years of age, respectively. Husband and Wife were separated in March, 1986. The dissolution decree was entered in June, 1990.

*383 The trial court found the Property Settlement entered into by the parties “not unconscionable” and “adopted and incorporated” it into its decree. The court ordered Husband to pay Wife periodic maintenance of $1,700.00 per month and to maintain medical and hospital insurance for Wife.

To review this court tried case, we view the evidence and permissible inferences most favorably to the decree and disregard all contrary evidence and inferences. Wynn v. Wynn, 738 S.W.2d 915, 918 (Mo.App.1987). Where the trial court made no specific finding of fact, we consider that fact found in accordance with the result reached. Rule 73.01(a)(2); Lyman v. Walls, 660 S.W.2d 759, 761 (Mo.App.1983). With the evidence so viewed, we affirm the decree unless there is no substantial evidence to support it, or it is against the weight of the evidence, or it erroneously declares or applies the law. Hoffman v. Hoffman, 676 S.W.2d 817, 822 (Mo. banc 1984); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

I. Maintenance Award Is Modifiable

The trial court did not state in its order whether the maintenance award was to be modifiable. Section 452.335.3 RSMo 1991 Supp. 1 However, during oral argument, Husband’s counsel agreed that the maintenance award is modifiable. Therefore, we amend the judgment to make the maintenance award modifiable. Rule 84.-14; Harris v. Harris, 784 S.W.2d 630, 631 (Mo.App.1990).

II. Amount Of Maintenance Is Not Excessive

The court ordered Husband to pay periodic maintenance of $1,700.00 per month. It also ordered him to provide medical and hospitalization insurance coverage for Wife, which, according to the record, would be approximately $81 per month under the Consolidated Omnibus Budget Reconciliation Act 1985 (COBRA). In addition, it awarded custody of James to Wife and ordered that, if James “returns to full-time vocational education training”, husband must pay $425.00 per month as child support.

Husband contends he cannot meet his own needs if he must meet the obligations imposed by the court, in particular, the $1,700 per month maintenance. We disagree.

The trial court has discretion to determine the amount of maintenance. Woods v. Woods, 713 S.W.2d 292, 294 (Mo. App.1986). “To warrant appellate interference, the amount of maintenance must be patently unwarranted and wholly beyond the means of the spouse who pays maintenance.” Id.; Bull v. Bull, 634 S.W.2d 228, 229 (Mo.App.1982). The party challenging the award has the burden of proving the trial court abused its discretion. Woods, 713 S.W.2d at 294; Childers v. Childers, 652 S.W.2d 311, 313 (Mo.App.1983). Husband did not meet this burden.

Husband contends his gross monthly income is $7,000.00 and his net monthly income is $2,980.00. After payment of the court ordered monthly maintenance of $1,700.00, Husband contends he is left with $1,280.00, from which he must pay for medical and hospitalization insurance for Wife, child support and his own expenses; and, he contends these latter payments would exceed $1,280.00.

The trial court viewed the evidence differently. The court found that Husband averaged $84,000 in gross income for the years of 1984 to 1988 and had an anticipated gross income of $112,000 for 1989. These findings are supported by the evidence. With the husband receiving a comparable or less gross income, this Court has approved maintenance awards comparable to the maintenance award here.

Thus, in Childers v. Childers, 652 S.W.2d 311 (Mo.App.1983), the Court affirmed an award of $1,300 monthly maintenance to a wife of thirteen years, who was working as a secretary and earning $700 per month. Id. at 313. The husband’s average gross monthly income for the last three years of the marriage was $5,000. *384 Id. Thus, in Childers, the wife was awarded 26% of the husband’s gross income as compared to Wife’s award here of 18% of Husband’s 1989 average gross monthly income of $9,300 and 24% of his five year (1984-1988) average gross monthly income of $7,000. Moreover, in Childers, the Court noted that the husband’s income after maintenance was paid for was still almost twice that of the wife’s. Id. Here, after periodic maintenance is paid, Husband’s gross income is 2.7 times to 3.8 times as great as Wife’s.

More important, Husband’s periodic maintenance here is not greater than his net income. Admittedly, the court did not make any finding as to Husband’s net income. However, even on Husband’s facts and terms, he does not prevail.

Contrary to the court’s finding that Husband’s anticipated gross income for 1989 would be $112,000, Husband assumes that his income would be the same as his average gross income for the preceding five years: $84,000 or $7,000 per month. Then, without explanation, he argues he must pay $520 per month in social security tax and $3,500 per month in federal income tax “[bjecause of certain recapture effect on his income.” This $4,020 ($3,500 + $520) in taxes he subtracts from his assumed $7,000 monthly gross and arrives at the net income of $2,980.00 to pay for his needs and the court ordered payments to Wife. This calculation, however, is not supported by the record.

The “recapture effect” is a result of the sale and foreclosure of two tax sheltered investments. Husband must pay federal and state income taxes on this income received in 1989, in the amount of $24,537.38.

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Bluebook (online)
826 S.W.2d 381, 1992 Mo. App. LEXIS 484, 1992 WL 47523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/liberty-v-liberty-moctapp-1992.