Pearson v. Pearson

687 S.W.2d 677, 1985 Mo. App. LEXIS 3089
CourtMissouri Court of Appeals
DecidedMarch 12, 1985
DocketNo. 48370
StatusPublished
Cited by2 cases

This text of 687 S.W.2d 677 (Pearson v. Pearson) 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
Pearson v. Pearson, 687 S.W.2d 677, 1985 Mo. App. LEXIS 3089 (Mo. Ct. App. 1985).

Opinion

KAROHL, Judge.

Petitioner husband appeals only those provisions of a dissolution decree relating to an award of personal property, limited maintenance, attorney’s fees and an interest in a house to respondent wife. The dissolution of marriage is not appealed.

The parties were married in April 1971, separated in July 1976 and the dissolution granted on December 15, 1983. No chil[679]*679dren were born of the marriage. However, both parties were parents of children by previous marriages. Wife has been employed by the St. Louis City Board of Education for twenty years. At the time of trial she described herself as a math specialist. Husband has been a teacher in the St. Louis school system for seventeen and oné-half years and an employee of the Herbert Hoover’s Boys Club for sixteen years. He testified that his total monthly take home pay was approximately $1,200, $608.00 as a school teacher. Wife testified but did not mention the amount of her earnings or expenses. The parties’ income and expense and financial statements were not offered in evidence. The parties were separated eight and one-half years before the dissolution was granted. There is no evidence that husband contributed any support for the wife during the period of separation.

Husband contends the trial court erred in awarding limited maintenance of $50.00 per month for a period of sixty months, attorney’s fee of $1,000, six items of personal property with designated values which husband was to transfer to the wife or to pay the designated values on any items not transferred, and in ordering husband to deed to wife a one-half interest in a residence purchased by him after the parties separated.

Our standard of review of the points on appeal is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The burden of demonstrating error and the incorrectness of the judgment below is upon appellant. Suesserman v. Suesserman, 539 S.W.2d 741, 743 (Mo.App.1976).

We find no error in the award of personal property or in the alternative the value of items not delivered. Husband acknowledged wife’s ownership of the six items, did not dispute the values she assigned to each and said that two of the six were definitely at his home. He did not know whether or not he had the other four items but they may be contained in boxes at his home. He had no objection that they be returned. Husband’s sole point with regard to these items is that there was no evidence he had them in his possession and control. This point is denied because of the foregoing evidence and because wife testified they were in his possession.

Husband objects to the award of a $1,000 attorney’s fee payable to wife’s attorney on the grounds that it is not supported by the evidence, is excessive both because husband is unable to pay and wife is able to pay. We reject this argument because we find no abuse of discretion in the award of the fee. Brueggemann v. Brueggemann, 551 S.W.2d 853, 859 (Mo.App.1977). This court en banc there held that § 452.355 RSMo 1978 authorizes the court, “... after considering all relevant factors including the financial resources of both parties may order a party to pay a reasonable amount for the costs to the other party of maintaining or defending any proceeding under Sections 452.300-452.415 and for attorney’s fees ...” Id. The skimpy evidence before the trial court supports the award. There was evidence of husband’s income and expenses but no direct evidence of the wife's income and expenses. The evidence supports a finding of the trial court of the husband’s ability to pay which is not offset by evidence of the wife’s ability to pay. Further the court’s discretion is not limited only to the parties’ financial standing. Kieffer v. Kieffer, 590 S.W.2d 915, 918 (Mo. banc 1979). Point denied.

Husband contends that the award of limited maintenance in the amount of $50.00 per month for a period of sixty months was unsupported by the evidence. In his view the evidence established that wife was able to support herself on her income as a school teacher with twenty years seniority and gross monthly wages of $2,725 per month. There may have been information available as to the extent of her wages and her expenses but they were not presented in evidence. Such information is reflected on her income and expense and financial statements filed with the court and made part of the legal file filed [680]*680with this court. This information however was not made part of the evidence. Further there was no evidence of the manner in which she was supported during the lengthy separation of the parties. On this point the only evidence was her testimony that she was a twenty year employee of the St. Louis school system. She asked periodic “alimony” because of an existing medical condition which had caused a permanent limp and which may worsen so as to adversely effect her ability to work. Husband questions the award only on the basis that the evidence of the amount of her earnings made the award unnecessary and therefore unauthorized under § 452.335 RSMo 1978. This point is denied because of the failure in the evidence to support husband’s argument.

Husband’s last point requires a further statement of facts. The parties separated in July 1976. Seventeen months later husband decided to buy a house. At husband’s request wife freely signed the purchase money deed of trust in favor of Pulaski Service Corporation, Trustee for Pulaski Savings & Loan Association. Husband borrowed $28,500 on a purchase price of $30,000. It appears that he paid approximately $2,300 from his own funds. After the purchase he paid all of the monthly payments from his own funds including payments after this suit was filed. It may be that the down payment and closing expenses and the equity payments were funds acquired from non-marital funds or after the separation of the parties and to that extent the court erred in finding all of the equity in the real estate to be marital property. There is a statutory presumption that property acquired during the marriage is marital property. § 452.330 RSMo Supp.1981. However “[e]ach spouse has a common ownership in marital property which vests not later than the time of commencement by one spouse against the other of an action in which a final decree is entered for dissolution of marriage ...” The parties stipulated that wife made no contribution toward the purchase of the real estate but that she had an interest as spouse.

We conclude that the record is insufficient to determine the nature and extent of either the husband’s or the wife’s interests in the property. The general warranty deed by which the husband acquired his interest in October of 1977 provides that husband receive a life estate to include exclusive use and benefit of the property and to sell, mortgage, convey or in any manner dispose of the fee simple title to the property, all in his sole discretion and by his sole deed or other instrument. Dorothy Cash was to receive as a remainder-man any undisposed interest. Dorothy Cash appeared by affidavit and waived any interest in the property. Wife accommodated her husband by signing the purchase money deed of trust.

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Bluebook (online)
687 S.W.2d 677, 1985 Mo. App. LEXIS 3089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pearson-v-pearson-moctapp-1985.