Marriage of Eckstein v. Eckstein

748 S.W.2d 945, 1988 Mo. App. LEXIS 610, 1988 WL 37931
CourtMissouri Court of Appeals
DecidedApril 26, 1988
Docket53303
StatusPublished
Cited by17 cases

This text of 748 S.W.2d 945 (Marriage of Eckstein v. Eckstein) 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
Marriage of Eckstein v. Eckstein, 748 S.W.2d 945, 1988 Mo. App. LEXIS 610, 1988 WL 37931 (Mo. Ct. App. 1988).

Opinion

SATZ, Chief Judge.

This is a consolidated appeal from judgments entered in a dissolution case. Both the husband and the wife appeal from the trial court’s maintenance award. The husband also appeals from an award, in a separate hearing, of attorney fees to the wife for her appeal. We affirm.

We view the facts in the light most favorable to the judgments. Ware v. Ware, 647 S.W.2d 582, 584 (Mo.App.1983). The husband and the wife married on September 12, 1959. There were three children born of the marriage all of whom are emancipated. They separated on September 22, 1985. On November 13, 1985, the wife petitioned for dissolution. Maintenance was the only issue contested by the parties at the dissolution hearing. In its final decree, the trial court: (1) found the parties’ Written Separation and Property Settlement Agreement (Separation Agreement) not unconscionable, incorporated it into the decree and (2) awarded the wife $1,200 per month maintenance, for an unlimited duration.

Both the husband and the wife appealed the maintenance award. Subsequently, the wife filed a motion in the trial court for additional attorney fees and expenses for appeal. This motion was heard by a judge who did not preside over the dissolution hearing. The wife was awarded $1000 in attorney fees for appeal.

On appeal, both parties argue the trial court erred in granting the $1200 per month maintenance award. The husband claims this award was excessive because of the income-producing property awarded to the wife and because of the wife’s earning capacity. The wife claims the award was insufficient because her reasonable needs, as shown by her marital standard of living, are greater than those provided for by the maintenance award and property settlement. Moreover, the wife argues that the husband has the financial ability to pay additional maintenance on which she could maintain her marital standard of living. None of these arguments has merit.

Section 452.335 RSMo. 1986 sets out the statutory factors the trial court must consider in awarding maintenance. 1 The trial court not only has broad discretion in applying these factors, see, e.g., In re Marriage of Witzel, 727 S.W.2d 214, 216 (Mo. *947 App.1987), it credits the witness and evaluates the merits of each parties’ expense claims. E.g., Trunko v. Trunko, 642 S.W.2d 673, 674-75 (Mo.App.1982).

Viewing the evidence in this light, the record shows the wife’s income requirements, based on her marital standard of living, were $3747 per month. At oral argument on appeal, however, wife’s counsel admitted her monthly expenses might be as low as $2700, more than $1000 less than she originally claimed. Although the marital standard of living may provide some evidence of the wife’s reasonable needs, it is only one of many factors the trial court must consider. § 452.335. The same is true of a husband’s ability to pay a greater amount of maintenance. It is but one of several factors for the trial court to consider. Given the wife’s own uncertainty regarding her reasonable needs and the broad discretion we must afford the trial court in fashioning a maintenance award, see Witzel, supra, we find no error in the court’s determination that the wife’s reasonable needs are between $2200 and $2300 per month.

The husband argues the wife could meet these reasonable needs without the maintenance award by properly investing her share of the marital property and by obtaining full-time employment. We disagree.

Under the parties' Separation Agreement, the wife received stock worth approximately $55,800. Although the stock generated about $4,800 in income during the year prior to the dissolution hearing, the husband’s expert testified that the stock, if invested more speculatively, could produce as much as $7100 annual income. The trial court did not need to credit the husband’s expert, and the wife need not consume or speculate with her property before she can receive a maintenance award. See, e.g., Fausett v. Fausett, 661 S.W.2d 614, 617 (Mo.App.1983). Thus, the trial court properly found that the stock would produce between $400 and $500 monthly income for wife. In addition, the wife receives another $100 monthly interest from a note she received under the Separation Agreement. The trial court correctly added this amount to her income from stocks and found that the wife would receive interest and dividend income of $500 — $600 per month.

Moreover, the trial court properly evaluated the wife’s earning capacity. The wife testified that she divided her time between two part-time endeavors: Working as a sales clerk, in which she earned $4.10 hourly, and attending classes at a community college in pursuit of a medical technician’s degree.

Admittedly, the wife has an affirmative duty to seek adequate employment in order to become self-supporting as soon as possible. Brueggemann v. Brueggemann, 551 S.W.2d 853, 856 (Mo.App. banc 1977). However, during the couple’s marriage, the wife here had only been employed for a limited time as a sales clerk. According to her expert, she was capable of earning between $3.35 and $4.25 hourly as a full-time clerk. Based on this testimony, the trial court did not err in concluding the wife could reasonably be expected to earn $500 per month.

Thus, considering all of wife’s income sources, the $1200 maintenance award is proper in light of wife’s reasonable needs.

The husband next argues the trial court erred in granting maintenance for an unlimited duration. He contends the evidence showed the wife requires maintenance only for a limited period. First, he argues that the wife is currently capable of securing a job sufficient to meet her reasonable needs. Second, he insists that she will soon complete her education and, upon becoming a medical technician, will be able to support herself. The record does not support these contentions.

Whether a trial court should limit the term of a maintenance award hinges upon “... whether there was substantial *948 evidence at the time to justify imposition of the limitation.” Doerflinger v. Doerflinger, 646 S.W.2d 798, 802 (Mo. banc 1983). Contrary to the husband’s contention, the record does not show the wife could satisfy her reasonable needs by her present earning capacity. Moreover, the evidence of the wife’s enhanced earning capacity in the future was, as best, speculative. At the time of the dissolution hearing, she had earned only 24 of 65 credit hours required for a medical technician’s degree. Furthermore, her expert testified that positions for medical technicians were scarce. Thus, the evidence simply does not justify the conclusion that the wife will realize any higher job-earning capacity. See, e.g., Tygett v. Tygett,

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Bluebook (online)
748 S.W.2d 945, 1988 Mo. App. LEXIS 610, 1988 WL 37931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-eckstein-v-eckstein-moctapp-1988.