Phelps v. Phelps

620 S.W.2d 462, 1981 Mo. App. LEXIS 3017
Missouri Court of Appeals·Decided August 18, 1981·No. No. WD 31313·Published·Cited by 6 cases

Opinion

PRITCHARD, Presiding Judge.

In this dissolution of marriage case, five issues are presented: (1) Whether the trial court abused its discretion in denying an award of periodic maintenance to appellant when the marriage had lasted for 7 years and the evidence showed appellant was entitled to that award; (2) whether the trial court abused its discretion in providing for the prospective termination of maintenance (in gross) when, as contended, there was no evidence of impending change, or reasonable expectation of change, in the financial condition of the parties; (3) whether the trial court erred in denying appellant’s motion for new trial on the ground of newly discovered evidence; (4) whether the trial court erred in permitting respondent to satisfy $6,660.00 of the $10,800.00 gross maintenance by transferring to appellant his one-half share of marital property, because, as contended, there was a failure to consider whether respondent was entitled to a one-half share of the marital property under § 452.330, RSMo 1978, and that awards of specific property in lieu of alimony are not permitted under Missouri law; and (5) whether the trial court erred in failing to ascertain, describe, value or set apart each party’s property in a manner sufficient actually to obtain a separation of property interests or obtain enforcement of the decree.

The parties met in South Vietnam where respondent was stationed in the Military Service, appellant being then a Vietnam National, having a young daughter by a previous marriage. Respondent arranged for appellant and her young daughter, then about 3 years of age, to come to the United States, and the parties were married March [464]*46425, 1972, in Fargo, North Dakota. Appellant was then 21 years of age. After respondent’s tour of duty in Vietnam ended, the couple had two other military duty stations for about 30 months, during which time a daughter was born on November 12, 1974. About a year later, they moved to Independence, Missouri, where they resided until separated, which was about August 25, 1978.

Appellant did not have the equivalent of a high school diploma. While the parties were on military duty, she was unable to seek employment, but she did contribute as a homemaker. She did have a marketable skill of sewing, and using that, she obtained a job doing alterations for J. C. Penney Co. at $3.60 per hour in 1976, working there on and off for 2½ years, but missed almost 5 months time after surgery following a tubal pregnancy. Appellant left Penney’s in December, 1978, after respondent insisted that she accompany him on a vacation in Minnesota when that company had a policy prohibiting vacations between Thanksgiving and New Year’s days. Respondent conceded that he encouraged appellant to leave the employment. Subsequently, appellant obtained employment at J. P. Todd’s as a seamstress at $5.00 per hour for two two-month periods only. During the marriage, her earnings went to support the family and household. Just prior to trial, she purchased a commercial sewing machine so she could do home sewing, but she had earned only $8.00 therefrom at the time of trial.

Appellant had twice tried to obtain a G.E.D. high school equivalency diploma, but was interrupted, first by family care obligations, and then by being recalled to work at J. P. Todd’s. Both parties were of the opinion that appellant had emotional problems, and she had visited a mental health clinic, took nerve pills, and had two sessions with a psychiatrist who told her she needed to return six more times. Respondent was advised by a caseworker that appellant needed counselling and he paid for one session and agreed to pay for another.

Respondent agreed that appellant should occupy the marital home. He testified that it had been appraised at $26,500 in 1977, and she testified it was worth $25,000. There was about $18,500 owed on the home, with payments thereon of about $197.00 per month. Appellant concedes in her brief that their testimony generally supported their statements of marital and non-marital property, income and expenses. The trial court found the value of the marital property to be $13,320.00, and neither party challenges that valuation. $10,800.00 was awarded appellant as maintenance in gross, and it was decreed that respondent might satisfy $6,660.00 of the maintenance in gross, by transferring his one-half interest in the marital property, which apparently he did. The remaining amount of maintenance in gross ($4,140.00) was ordered paid by respondent at $175.00 per month on the 13th day of every month [which would be about 23 months until paid in full]. Respondent was ordered to pay $200.00 per month as support for the one child born of the marriage.

Respondent’s net income, after tax deductions, as an assistant signal maintainer for the Burlington Northern Railroad, was $1,059.18 per month. He received also $104.00 per month from the National Guard. He testified that his cost to maintain himself was $900.00 per month. Thus, adding $200.00 per month child support and $175.00 per month payment on the balance of maintenance in gross, makes his total outlay $1,275.00 per month, which would be about $111.00 more than his net income.

Appellant, at the time of trial, had income of $475.00 from respondent, and $83.00 per month unemployment compensation, which would soon cease. According to her statement, of income (none) and expenses, received into evidence, appellant’s monthly expenses are these: Mortgage payments — residence, $197.00; Utilities, $114.00; Automobile, $185.00 [including $98.00 payments on a Nova by respondent, which would then be paid in full in 3 or 4 months]; Insurance, $137.00; Food, clothing, medical care, dental, recreation, laundry and dry cleaning, school and books, $150.00. The total was $1,201.00 per month, [465] but $98.00 should be deducted to reflect the elimination of the Nova payment, or a total of $1,103.00 per month. Appellant testified that it would be more expensive to live in quarters other than the family home. She could complete the G.E.D. equivalency course in two years if she did not work.

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Phelps v. Phelps, 620 S.W.2d 462, 1981 Mo. App. LEXIS 3017 (Mo. Ct. App. 1981).

620 S.W.2d 462 (Phelps v. Phelps) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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