Marriage of Wagner v. Wagner

898 S.W.2d 649, 1995 Mo. App. LEXIS 637, 1995 WL 129197
CourtMissouri Court of Appeals
DecidedMarch 28, 1995
Docket64914
StatusPublished
Cited by10 cases

This text of 898 S.W.2d 649 (Marriage of Wagner v. Wagner) 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 Wagner v. Wagner, 898 S.W.2d 649, 1995 Mo. App. LEXIS 637, 1995 WL 129197 (Mo. Ct. App. 1995).

Opinion

KAROHL, Judge.

Robert Wagner, husband, appeals a decree of dissolution that terminated an eighteen-year marriage. One child was born of the marriage. Husband was ordered to pay $635.50 in child support, the child’s medical, dental, psychological care and hospitalization expenses, and one-half of the cost of college education. The court awarded $300 in maintenance to Ina Wagner, wife. Husband presents four points on appeal. We affirm in part and remand for entry of a new judgment.

The parties were married on June 28, 1975. They have one daughter, who was fourteen at the time of trial. Husband has been an independent insurance agent since 1973. During the marriage, wife worked as a secretary and bookkeeper for husband’s insurance business. Since 1991, she has done data entry for Smith-Kline Beecham Clinical Lab.

In his first point, husband presents two subpoints. He contests the amounts of both the child support and maintenance awards. He argues the court’s finding as to his monthly income was erroneous.

We will not disturb the trial court’s order unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

In making child support and maintenance determinations, the trial court may properly consider both past and present earnings. In certain circumstances, the court may impute an income to a spouse according to what he could earn by use of his best efforts to gain employment suitable to his capabilities. Henderson v. Henderson, 822 S.W.2d 474, 476 (Mo.App.1991). This rule is specifically applicable to a spouse who voluntarily reduces his income. The trial court makes the evaluation of credibility. Id.

The trial court adopted wife’s proposal for child support based on her Form 14 submitted pursuant to Rule 88.01. She listed husband’s monthly gross income as $6,000 and her own monthly gross income as $1,000. The trial court increased wife’s monthly gross income to $1,300 to reflect the $300 maintenance award. Based on a monthly gross income total of $7,300, the trial court applied the Schedule of Basic Child Support Obligations. It ordered wife to pay $139.50 and husband to pay $635.50. The correct allocation would be based on total income of $7,000 not $7,300 because the maintenance is not a part of the amount. On remand the court should calculate the amounts and enter a modified judgment. No additional changes are required.

Husband testified his monthly gross income was $2,200, which is $26,400 a year. Wife’s expert witness, Lawrence E. Brown, a *651 certified public accountant, testified that the gross income of husband’s business in both 1988 and 1989 was approximately $90,000 and expenses were $30,000. Husband testified his gross income for 1991 was approximately $57,000. Brown also testified husband’s gross receipts for 1992 and 1993 were $46,000 and $43,000, respectively. On husband’s behalf, John Flanigan, an insurance agent, testified there had been a decline in husband’s business since 1988 or 1989, but that the decline was not husband’s fault.

The trial court was free to discount Flani-gan’s explanations for the reduction in husband’s business and resulting income. The court could attribute to husband an income based on his previous earning history. There was evidence of less earnings, but no evidence this was a permanent or irreversible condition. The court may properly consider both past and present earnings. We find no error.

Husband also contests the amount of the maintenance award. The trial court has broad discretion in awarding spousal maintenance. Mika v. Mika, 728 S.W.2d 280, 284 (Mo.App.1987). The amount of maintenance is based on need and ability to pay. Section 452.335 RSMo Cum.Supp.1993. The trial court awarded wife maintenance of $300 a month. This amount was supported by the evidence, and, thus, was within the trial court’s discretion.

Wife testified her income was $12,000 a year, while her expenses were $5,513 a month. This amount included a $1,033 monthly mortgage payment on the Parker Road residence, in which wife and daughter were living at the time of trial. Wife has limited work experience. She did not work for wages outside the family during the marriage. Her skills are basically secretarial. The evidence supports a finding she is unable to support herself and her daughter through appropriate employment. Section 452.335.1(2) RSMo Cum.Supp.1993. Husband has been an insurance agent for 20 years. His earning capacity is significantly greater than wife’s. Section 452.335.2(3) RSMo Cum.Supp.1993. In addition, a high standard of living was established during the marriage, which lasted eighteen years. Section 452.335.2(4) and (6) RSMo Cum.Supp. 1993. Finally, wife testified she was not in good physical or emotional health. Section 452.335.2(7) RSMo Cum.Supp.1993. She takes medication for a heart condition and high blood pressure. She was in a car accident in 1989 and sustained a back injury that limits some of her activities. At the time of trial, she was taking an antianxiety drug. In light of the foregoing statutory factors, the trial court did not abuse its discretion in awarding wife $300 a month maintenance.

In his second point, husband contends the trial court abused its discretion in the division of the marital property because the division was against the weight of the evidence. We disagree.

The court awarded wife the Parker Road residence, the Van Crest residence, and household furnishings at these residences, four bank accounts, a 1985 Buick, and three horses. Using wife’s figures, the value of the real property totals $252,000. Using husband’s figures, the total is $264,800. Wife valued the four bank accounts at $2,565. She valued the three horses at $2,400, while husband listed the value of four horses at $10,-000.

The court awarded husband a condominium, all interest in his insurance business, two debts owed to the parties, a 1979 Cadillac, a 1984 Buick LeSabre, a 1977 Dodge van, a 1981 Cadillac, an American Church Trust Bond, a 1970 Honda motor bike, a 1971 Honda motor bike, and a 1988 flat trailer. Both husband and wife valued the condominium at $41,400. Wife’s expert valued husband’s insurance business between $43,000 and $46,-000. Husband listed one of the debts owed to him as $500 a month for 27 years, which totals $162,000. He valued the four cars he was awarded at a total of $14,500, while wife valued them at $4,700.

Equal division of property is not required by statute. Mika v. Mika, 728 S.W.2d 280, 283 (Mo.App.1987); § 452.330 RSMo Cum. Supp.1993.

Here, the property division is supported by statutorily approved factors. The economic circumstances of the parties support the divi *652 sion of the property. Section 452.330.1(1) RSMo Cum.Supp.1993. Economic circumstances include each party’s individual capacity to work and earn. Id. Wife testified husband did not want her to work outside the home during the marriage.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Harris v. Parman
54 S.W.3d 679 (Missouri Court of Appeals, 2001)
Graves v. Graves
967 S.W.2d 632 (Missouri Court of Appeals, 1998)
Garman v. Garman
959 S.W.2d 482 (Missouri Court of Appeals, 1998)
In RE MARRIAGE OF BOLTON v. Bolton
950 S.W.2d 268 (Missouri Court of Appeals, 1997)
Browning v. Browning
947 S.W.2d 106 (Missouri Court of Appeals, 1997)
Wagner v. Wagner
945 S.W.2d 689 (Missouri Court of Appeals, 1997)
Walker v. Walker
936 S.W.2d 244 (Missouri Court of Appeals, 1996)
Schroeder v. Schroeder
924 S.W.2d 22 (Missouri Court of Appeals, 1996)
Runyan v. Runyan
907 S.W.2d 267 (Missouri Court of Appeals, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
898 S.W.2d 649, 1995 Mo. App. LEXIS 637, 1995 WL 129197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-wagner-v-wagner-moctapp-1995.