Myers v. Myers

844 S.W.2d 105, 1992 Mo. App. LEXIS 1925, 1992 WL 386074
Missouri Court of Appeals·Decided December 21, 1992·No. Nos. 17987, 18032·Published·Cited by 4 cases

Opinion

MONTGOMERY, Presiding Judge.

The Circuit Court of Phelps County entered a decree dissolving the marriage of Nancy Ann Myers (Wife) and Donald Dean Myers (Husband) on February 14, 1992. After dividing the marital and non-marital property according to the parties’ agreement, the trial court awarded custody of three minor children to Wife, with child support of $380 per month per child. The court ordered Husband to pay Wife modifiable maintenance of $700 monthly for two years. Thereafter, the maintenance award reduced to $250 monthly until the death or remarriage of Wife. Husband appeals complaining only about the maintenance award. The following facts are relevant to that award.

[106]*106The parties were married November 22, 1969. Three children were bom of the marriage. At the time of trial, John was age 16, Patricia was age 14, and Suzanne was age 12.

Husband holds a bachelor’s and master’s degree in engineering as well as a juris doctor degree. Since 1979, except for a one-year leave of absence, Husband has been employed at the University of Missouri-Rolla as an administrator and professor of engineering management. His gross salary at the time of trial was $64,-460 annually. He occasionally does outside consulting work which adds approximately $100 monthly to his income. In 1991, Husband’s consulting income was less than $500.

Wife- is a registered nurse. She also holds a college degree in business administration. After the parties married, Wife attended nursing school, graduating first in her class. Afterwards, she worked six months at St. Mary’s Hospital in St. Louis prior to the birth of her first child. Beginning in 1979, Wife worked occasionally in part-time nursing jobs. For the three years prior to trial, Wife was employed by the Rolla School System as a school nurse. Her yearly gross salary was $14,152 ($1,179.38 monthly) for nine months of work. During the school year Wife’s working hours were from 8:00 a.m. to 4:00 p.m. In the summer months and occasionally during the school year, Wife worked as a part-time nurse for Meramec Home Health Care. In 1991, she earned an average gross of $255.41 monthly from that job. Wife testified her summer work is close to full-time employment. Both jobs provide Wife with a gross monthly income of $1,434.79 or $17,217.48 annually.

The evidence reveals that considerably higher paying registered nurse jobs were available to Wife at trial time. Marie Oliver, Administrator of the Rolla Manor Care Center, testified her employer currently had an opening for a registered nurse at a beginning salary of $28,000 yearly, with free health insurance. She testified of a shortage of employable registered nurses and anticipated it would take at least two months to fill the opening. The salary is based upon a 40-hour work week. This job opening provides for flexible working hours which could be set from 8:00 a.m. to 4:00 p.m. on weekdays. The nursing home also provides a “weekend deal” for registered nurses who work a 12-hour shift on Saturday and Sunday but are paid for 40 hours of work. Mrs. Oliver testified she was acquainted with Nancy Myers, and her qualifications met the requirements of the job opening.

The assistant personnel director of the Phelps County Regional Medical Center testified the hospital in Rolla employs 184 registered nurses. At the time of trial, the hospital had four openings for registered nurses, and normally has openings at any given time. The salary ranges between $24,128 to $36,171. Additionally, the hospital has an arrangement for “pool nurses” who receive an additional 17 percent on their salary with no benefits. A pool nurse agrees to work when and where in the hospital she is needed with the option to refuse the hours which are unsatisfactory to her. A regular registered nurse receives health insurance as a benefit with the cost split equally between the employee and the hospital. Nurses at the hospital work 8-hour shifts commencing at 7:00 a.m., 3:00 p.m. or 11:00 p.m. Ordinarily, the nurses with more seniority are provided with the daytime shifts.

Wife testified she preferred her school nurse job over better paying jobs because her hours of employment allowed her to be at home when the children were there. Her present job allows her to take the two youngest children to school and bring them home. Dr. Carl Burns, a psychologist, testified concerning an adjustment disorder shown by the two youngest children. Regarding Wife’s possible change of job, he surmised that would probably exacerbate the children’s adjustment problems if Wife were not available to them on the same basis as her present job allows.

Pursuant to the division of property, Wife received property valued at $152,266 and debts of $7,985. Included in the assets received by Wife are the following:

[107]*107Liquid assets in Edward D. Jones account- $21,626
Union Electric stock- 16,758
Cash paid by Husband within 90 days of decree- 35,799
Total- $74,183

The property listed above is income-producing property. Deduction of $7,985 from these assets leaves Wife $66,198 for investment.

The trial court made detailed findings, mostly supported by the evidence, regarding maintenance. The trial court found Husband earns approximately $5,500 per month, with a disposable income of approximately $3,500 per month. After payment of $1,140 monthly child support, Husband is left with approximately $2,360 monthly disposable income.

The trial court found Wife earns an average of $1,3001 monthly with a disposable income of $1,200 monthly. The reasonable needs of Wife and the children were determined to be $3,019 monthly. After deduction of $1,140 monthly child support, and Wife’s disposable income of $1,200, the court found Wife had $679 monthly in uncompensated needs. The court determined that Wife could expect $100 monthly income from the income-producing property set aside to her.

Continuing, the court found “[Wife] has an affirmative duty to seek adequate employment in order to be self-supporting as soon as possible” and is “capable of earning more than her present salary as a registered nurse with employment at a hospital or nursing home in her present home town.” The court determined such employment would increase her monthly income by about $500, but it would also deny her the opportunity to work part time that she now enjoys. The court found the two youngest children suffer from an “adjustment disorder and that to require [Wife] to seek a new job at this time would be psychologically detrimental to the children’s health.” An order was then entered requiring Husband to pay Wife maintenance in the amount and for the duration recited herein.

Husband’s sole point complains the maintenance award was against the weight of the evidence, that the court failed to properly consider Wife’s income-producing property and failed to impute her potential income from employment readily available to her. We agree with Husband and find it unnecessary to address the remaining prong of this point.

We review an award of maintenance only for an abuse of discretion. In re Marriage of Swafford, 837 S.W.2d 560, 564 (Mo.App.1992); Cooper v. Cooper, 778 S.W.2d 694, 697 (Mo.App.1989).

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Myers v. Myers, 844 S.W.2d 105, 1992 Mo. App. LEXIS 1925, 1992 WL 386074 (Mo. Ct. App. 1992).

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