Lowrey v. Lowrey

633 S.W.2d 157, 1982 Mo. App. LEXIS 2905
CourtMissouri Court of Appeals
DecidedMarch 16, 1982
DocketWD 32645
StatusPublished
Cited by9 cases

This text of 633 S.W.2d 157 (Lowrey v. Lowrey) 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
Lowrey v. Lowrey, 633 S.W.2d 157, 1982 Mo. App. LEXIS 2905 (Mo. Ct. App. 1982).

Opinion

NUGENT, Presiding Judge.

Randell Dee Lowrey appeals from that portion of the judgment of dissolution of marriage which awards Nancy Lee Lowrey maintenance in the sum of $550 per month for a period of five years. We affirm.

The parties were married in June, 1976 and separated in October, 1980. During the marriage Dr. Lowrey attended dental school graduating in May, 1980 and opening an office in Chillicothe, Missouri in August, 1980. Mrs. Lowrey worked as a registered nurse using her earnings, a total of over $58,000 during the four years, to support the marriage. Dr. Lowrey’s parents paid his dental school tuition and expenses which were in excess of $10,000 and over $3,000 for other expenses. Dr. Lowrey’s own earnings during the marriage were minimal. No children were born of the marriage.

At the trial Mrs. Lowrey attributed the failure of the marriage to Dr. Lowrey’s relationship with another woman. She admitted striking Dr. Lowrey on several occasions. She testified that she was twenty-seven years old, in excellent health, and currently reemployed as a registered nurse in Kansas City after having left her job to live and work in Chillicothe for a few months before the separation. Her net monthly income is $947, and she itemized monthly expenses of $1,510. She expected future salary increases at regular intervals and would soon be able to take advantage of health and life insurance programs at her own expense through her employment.

Dr. Lowrey, age twenty-six and in excellent health, stated that Mrs. Lowrey basically supported him during dental school. Although he admitted that his relationship with another woman contributed to the failure of the marriage, he complained of Mrs. Lowrey’s “extreme” temper, her dislike for his friends, and friction between Mrs. Low-rey and his parents. He testified to a gross monthly income of approximately $3,500 from his practice and claimed monthly office expenses of $2,638 and monthly personal expenses of $1,538. Dr. Lowrey, who was living with his parents at the time of trial, admitted, however, that his itemized personal expenses were all either guesses or expenses copied from Mrs. Lowrey’s statement.

*159 After setting aside to respondent as non-marital property one quarter horse, the trial court divided the marital assets and liabilities. Mrs. Lowrey received household goods and appliances valued at $1500, a 1976 automobile valued at $2300, a checking account containing less than $200, and a life insurance policy with no cash value. Dr. Lowrey was awarded a 1979 automobile valued at $5500, checking and savings accounts totall-ing $2055, two life insurance policies with no value, and his office equipment, supplies and fixtures valued at $51,000. Dr. Low-rey’s dental equipment and fixtures were fully encumbered. Therefore, the court held that he was solely responsible for satisfying that amount and for bank loans to-talling $14,000 which included loans for both vehicles. In addition, the trial court ordered Dr. Lowrey to pay Mrs. Lowrey’s attorneys’ fees of $1200, and further ordered that he pay Mrs. Lowrey maintenance in the sum of $550 per month for a period of five years. The trial judge made the following comments regarding the order of maintenance:

[B]oth of the parties are in good health and possess the attributes necessary to provide for at least subsistance [sic] and then some, although the characterization of the professional status attained by the Respondent as an asset is somewhat elusive and less than clear either in cases or in the eye of the Court. It is a factor, and the contribution of the Plaintiff toward the Respondent in attaining his degree in denistry [sic] and thereby attaining a position of earning power far exceeding that of the Petitioner should and is in this case taken into consideration.
The Court recognizes the relative positions of the parties as to their future needs and expectations. The Plaintiffs
capacity for future earning is controlled by a market which has always been limited, whereas the Respondent’s capacity for future earnings is limited only by his industry.
The separation in this case occurred at a time when the earning capacity of the Respondent had not been realized to the extent of adding or accumulating assets of great value; however, there is nothing in the evidence or from reasonable inferences derived from the evidence to lead the Court to believe that the earning capacity of the Respondent is in any way adversely affected.
I do find with regard to the relative position of the parties that the Plaintiff Petitioner is entitled to maintenance, but that entitlement in some respects is tied to I suppose a theory of recoupment concerning the investment that she made from her earnings towards the Respondent, being put in a position to obtain a professional position, and I further find that her entitlement to maintenance is limited to a period of time to put her in a relative whole or even position with regard to the energies and assets she contributed to the marriage relationship and the Respondent during the period of time he was in school.
... Court finds that a reasonable amount of support would be in the amount of $550.00 per month for a period of five years and to terminate at the end of five years.

On appeal Dr. Lowrey contends that the trial court’s award of maintenance was an abuse of discretion, was unsupported by the facts and was an erroneous application of § 452.335, R.S.Mo.1978 1 .

*160 This court’s review of the maintenance award is, of course, governed by Murphy v. Carron, 536 S.W.2d 30 (Mo.1976) (en banc), so that the decree of the trial court will not be disturbed unless there is no substantial evidence to support it or unless it erroneously declares or applies the law. The determination of the trial court with respect to the allowance and amount of spousal maintenance is discretionary, and appellate review is only to determine if the court has abused such discretion. Pederson v. Pederson, 599 S.W.2d 51, 53 (Mo.App.1980).

In Horridge v. Horridge, 618 S.W.2d 202 (Mo.App.1981), this court held that, “Section 452.335 governs an award of maintenance. The statute allows a great deal of discretion to the trial court.... The court, nevertheless, must know whether the childless spouse seeking maintenance lacks sufficient property to meet her reasonable needs and is unable to support herself through appropriate employment.” Dr. Lowrey contends that Mrs.

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Bluebook (online)
633 S.W.2d 157, 1982 Mo. App. LEXIS 2905, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowrey-v-lowrey-moctapp-1982.