May v. May

801 S.W.2d 728, 1990 Mo. App. LEXIS 1764, 1990 WL 198169
Missouri Court of Appeals·Decided December 11, 1990·No. 57220, 57222·Published·Cited by 43 cases

Opinion

CRANE, Judge.

Both parties to this dissolution of marriage action appeal. They challenge the financial provisions of the decree involving maintenance, child support, the division of marital property, and attorney’s fees. We remove the time limitation on maintenance and add college tuition and expenses to the child support obligations. We affirm as so modified.

William Leroy May [husband] and Carolyn May [wife] were married on September 10, 1960. Two children were born of the marriage, one of whom was still a minor at the time of trial. Wife filed a petition for dissolution of marriage on March 12, 1986. The action was tried on seven days in 1988. The court entered its Findings of Fact, Conclusions of Law and Order dissolving the marriage on May 15, 1990, and granted wife custody of their minor daughter. Wife was awarded non-modifiable maintenance in the amount of $1,250.00 per month for a period of 60 months and $350.00 per month as child support. Wife was awarded the family home, valued at $127,500.00, and *731 was ordered to take over the outstanding indebtedness on the home in the amount of $32,321.75. Each party was awarded one-half of husband’s retirement, pension and profit-sharing plans. Other marital property was more or less evenly divided. Husband was ordered to pay wife’s attorney’s fees and expenses in the amount of $19,-562.40 and court costs. This appeal followed.

Wife objects to the trial court’s decree on four grounds: 1) that the award of maintenance was improperly limited to five years; 2) that the amount of maintenance was insufficient to meet her reasonable expenses; 3) that the amount of child support was inadequate; and 4) that the testimony of wife’s expert witnesses was impermissi-bly restricted. Husband argues that the trial court erred in 1) failing to set apart certain separate property, 2) awarding wife an excessive amount of marital property, 3) ordering him to pay wife’s attorney’s fees, and 4) in failing to make the award to wife of an interest in husband’s pension plan sufficiently specific to be enforceable.

Wife’s Appeal

Wife first argues that the trial court erred in limiting maintenance to a period of five years. We agree.

The court has broad discretion in determining the amount and the duration of maintenance pursuant to § 452.335 RSMo (Supp.1988). Our review is limited to determining whether the trial court has abused its discretion. Hahn v. Hahn, 739 S.W.2d 763, 764 (Mo.App.1987). “[A] decision to limit maintenance is justified only where substantial evidence exists of an impending change in the financial condition of the parties.” Burbes v. Burbes, 739 S.W.2d 582, 584 (Mo.App.1987). At a minimum there must be substantial evidence to support a reasonable expectation that such a change will occur. Harper v. Harper, 764 S.W.2d 480, 481 (Mo.App.1989); Pemberton v. Pemberton, 756 S.W.2d 660, 662 (Mo.App.1988). Maintenance should not be prospectively terminated if there is no evidence or reasonable expectation that the circumstances of the parties will be markedly different in the future. Hefti v. Hefti, 682 S.W.2d 65, 67 (Mo.App.1984).

At the time of the trial, wife was forty-nine years old. She had married at age 20, after completing her junior year of college, and received a bachelor of arts degree at age 42. She had only eight months paid employment experience during the twenty-nine year marriage. She had a long history of professional treatment for a personality disorder and depression. Her treating psychiatrist testified that, although she would encourage wife to get a job, wife would not be able to hold a job successfully, given her depression and personality problems which required long term therapy to reverse.

After considering this evidence the trial court found:

... [Wjhile [Wife] may be unable to support herself through appropriate employment and lacks sufficient property, including marital property apportioned to her, as set out herein, to provide for her reasonable needs, at least at the present, there remains certain rays of hope for the future.

The trial court noted that the psychiatrist testified that she would encourage wife to acquire a job and that a vocational expert called by husband testified that wife would be “employable” in areas in which she had expressed an interest. Based on this evidence, the court further found:

The Court finds that while, during the present on-going crisis, and probably for sometime to come, the [Wife] will not function normally, that sometime in the future she will have to find it within herself to seek and sustain full time employment.

There was no evidence of a reasonable probability that wife’s psychiatric problems would be sufficiently resolved five years from the date of the decree to allow her to sustain full time employment. See Harper v. Harper, 764 S.W.2d 480, 481 (Mo.App.1989). There was no evidence of any impending change. Maintenance awards cannot be based on mere speculation as to the future condition of the spouse. Howard v. Howard, 764 S.W.2d *732 169, 171 (Mo.App.1989). Such speculation constitutes an abuse of discretion. Burbes, supra, 739 S.W.2d at 584. We find that the trial court erred in awarding limited maintenance. We reverse this order and enter the order which should have been entered by the trial court. Id. at 585. Maintenance shall continue unless and until a proceeding for modification is brought and a change deemed appropriate under § 452.370 RSMo (Supp.1988). Rule 84.14.

Wife next asserts that the amount of maintenance ordered was insufficient to meet her reasonable needs and that husband was able to pay a higher award. Wife was awarded the sum of $1,250.00 per month. Wife originally contended at trial that her reasonable needs were $7,430.93 per month. As a result of evidence and admissions at trial, she has now reduced this figure to $2,927.26 per month. Husband’s net monthly income after taxes and social security is $4,656.00. His personal monthly expenses are $1,753.00 plus $963.00 for his daughter’s college tuition and room and board and $350.00 for child support.

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May v. May, 801 S.W.2d 728, 1990 Mo. App. LEXIS 1764, 1990 WL 198169 (Mo. Ct. App. 1990).

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