Marriage of Klein v. Klein

837 S.W.2d 567, 1992 Mo. App. LEXIS 1391, 1992 WL 202528
CourtMissouri Court of Appeals
DecidedAugust 25, 1992
DocketWD 45396
StatusPublished
Cited by12 cases

This text of 837 S.W.2d 567 (Marriage of Klein v. Klein) 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 Klein v. Klein, 837 S.W.2d 567, 1992 Mo. App. LEXIS 1391, 1992 WL 202528 (Mo. Ct. App. 1992).

Opinion

FENNER, Judge.

Savara Klein appeals the portions of a decree dissolving her marriage to Edward Klein regarding the division of marital property, maintenance and attorney’s fees.

The parties were married August 17, 1968. Three children were born of the marriage: Michelle Ann Klein, who was emancipated at the time of trial; Joanna Christine Klein; and Michael Edward Klein. Pursuant to the decree, Savara was awarded custody of Joanna and Michael.

Throughout the marriage Edward was employed as an electrical engineer. At the time of trial, his annual base salary was $57,000. For the previous five years he had received annual bonuses and some overtime pay. In 1988, his annual gross earnings were $85,900; in 1989, $79,200; and in 1990, $80,039. Edward testified that at the time of trial his base monthly net income was $2,832.

Savara Klein was not employed for the first seventeen years of the marriage. At the time of trial she was employed in a full-time position by the Hickman Mills School District as a media clerk. She worked only nine months of the year, but her salary was paid on a twelve-month basis. Her monthly net income was $760. At the time of trial Savara was enrolled in college courses and had taken a computer course to familiarize herself with computers. Af *569 ter the parties separated, she was employed for a short time at a department store to supplement her income, but quit because the job proved to be too demanding for her. Her total gross income for this job was $2,226.

The parties had reached an agreement prior to trial regarding child custody and the division of marital property. In the decree the trial court ordered Savara to pay the mortgage on the family residence and Edward was ordered to pay Savara $850 per month as maintenance in gross until the residence was sold. Edward was also ordered to pay monthly child support in the amount of $871.50 for the two children. The child support was subsequently reduced to $561.00 per month due to the emancipation of one of the children in Sa-vara’s custody.

Savara now appeals portions of the decree entered by the trial court, alleging three points of error. In her first point, Savara argues that the trial court erred in ordering her to pay the mortgage and all utilities on the family residence.

The circuit court is vested with considerable discretion in determining how and in what manner the property and debts should be divided. Tucker v. Tucker, 778 S.W.2d 309, 312 (Mo.App.1989) (citation omitted). Section 452.330, RSMo Supp. 1991, requires only a just and equitable division of marital property. Id. The decision of the trial court will not be disturbed on appeal absent a clear showing of an abuse of discretion. Id. Further, the correctness of the order prescribing the division of marital property is presumed correct and the burden is on the party challenging the division to overcome the presumption. Bixler v. Bixler, 810 S.W.2d 95, 100 (Mo.App.1991).

One apparent problem with Savara’s argument is that she ignores the applicable standard of review. She would ask this court to ignore the evidence that the trial court had before it and which would support the trial court’s decision. Savara points to what she perceives as a gross inequity, that being the requirement that she pay one-half of the mortgage and the utility expenses for the residence, which she claims places an impossible financial burden on her, in light of her very limited income and thus, constitutes a patent abuse of discretion.

It is clear from the record that the evidence was sufficient to support the decision of the trial court. Both parties presented evidence concerning their respective incomes and ability to pay. There is no dispute that Edward has greater earnings than Savara. However, the evidence also demonstrated that he has assumed greater marital indebtedness than her. Also, the evidence would support a finding that Sa-vara has a present ability to increase her income by obtaining employment for the three months that she is not employed in her present position.

There is no question that the dissolution has placed a significant financial burden on Savara, but that factor alone does not make the decision of the trial court erroneous as to the mortgage. Point one is denied.

In her second point, Savara argues that the trial court erred in denying her request for periodic maintenance and in providing for termination of the award of $850 per month upon sale of the family residence.

A trial court is given broad discretion in determining the issue of maintenance. Harris v. Harris, 784 S.W.2d 630 (Mo.App.1990). However, where the record establishes an abuse of discretion, an appellate court has authority to enter the judgment that the trial court should have entered. Rule 84.14; Pemberton v. Pemberton, 779 S.W.2d 8, 10 (Mo.App.1989).

Section 452.335, RSMo Supp.1991, provides that maintenance may be ordered if a court finds that the party 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 employment or is the custodian of a child whose condition or circumstances make it appropriate that the cus *570 todian not be required to seek employment outside the home.
2. The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:
(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, 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 obligations and assets, including the marital property apportioned to him and the separate property of each party;
(6) The duration of the marriage;
(7) The age, and the physical and emotional 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.

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Bluebook (online)
837 S.W.2d 567, 1992 Mo. App. LEXIS 1391, 1992 WL 202528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-klein-v-klein-moctapp-1992.