Russo v. Russo

760 S.W.2d 621, 1988 Mo. App. LEXIS 1617, 1988 WL 124254
CourtMissouri Court of Appeals
DecidedNovember 22, 1988
Docket54366
StatusPublished
Cited by8 cases

This text of 760 S.W.2d 621 (Russo v. Russo) 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
Russo v. Russo, 760 S.W.2d 621, 1988 Mo. App. LEXIS 1617, 1988 WL 124254 (Mo. Ct. App. 1988).

Opinion

SIMON, Judge.

Antoinette Russo, wife, appeals from a decree dissolving her marriage to Joseph Russo, husband, and dividing the marital property, awarding her $300 per month rehabilitative maintenance for two years, and awarding her attorney’s fees. On appeal, wife contends that the trial court erred in: (1) determining the amount and duration of maintenance; (2) failing to allocate the existing mortgage on the marital home; and (3) dividing the marital property. We affirm.

The parties were married on November 26, 1960. The parties’ final separation occurred February 10, 1985. Four sons were *622 born of the marriage; all of whom the trial court found to be emancipated at the time the decree was entered. The couple had lived in the marital home for twenty-two years of their twenty-seven year marriage. The marital home is subject to an existing mortgage of $16,800. Wife continues to reside at the home, and husband has moved to an apartment.

At the time of the hearing, wife was forty-seven years old. She testified that she is in fair health, and that her last visit to a doctor was approximately eight years ago. She presented no medical evidence indicating any inability to work.

Wife is a high school graduate. Her varied work history consists of working for Southwestern Bell for approximately five years in which she attained the job level of “keypunch operator,” as a snack bar salesperson at a discount store, and as a nurse’s aide. Additionally, wife worked in her husband’s business, J. Russo Cement Contractors, Inc., for approximately fifteen years. Her duties consisted of general bookkeeping work which included handling cash disbursements, cash receipts, bank deposits, making out contracts, payroll checks, employment withholding forms, social security forms, and billings. Following the filing of her Petition for Dissolution of Marriage on February 5, 1985, wife has unsuccessfully sought various employment positions and has only been able to obtain several housecleaning jobs. In 1986, wife’s gross income was $1000.

Wife characterized her job skills as being in the field of accounting, and stated that she wanted to enroll in a two-year, $9120 training course to sharpen her skills. After completion of the course, she felt that she would be able to earn enough money to support herself.

Stanley J. Bryer, a vocational counselor and consultant, testified on behalf of husband as to wife’s training and employment possibilities. Wife stipulated that Bryer was an expert witness. Bryer testified that a person with wife’s work experience had high employment potential in two job areas: (1) data entry; and (2) bookkeeping/clerical. According to Bryer, St. Louis presently has a relatively high demand for data entry jobs. He testified that training courses to pursue a job in one of those areas generally last a maximum of six months in duration and cost less than $3000 for the data entry course and less than $5000 for the bookkeeping course in the schools he surveyed. Bryer cited several schools where wife could get this type of training. Wife presented no testimony to rebut Bryer as to why she could not be adequately trained for employment through one of these six month programs, nor any evidence to dispute Bryer’s cost figures.

Husband has an eighth grade education and is the sole shareholder and president of his corporation, J. Russo Cement Contractors, Inc., which is a small, two-employee business. The cement business operates from March to November each year and handles mainly small contracting jobs. The nature of the cement business prevents him from operating during the winter months. He has no large mixing equipment.

Husband testified that he inherited approximately $22,000 from his mother which was used to pay off the mortgage on the marital home. The present mortgage of $16,800 was placed on the marital home to purchase the building used in the cement business which was valued at $85,000.

Husband testified that his net pay is $263.12 per week, and that his expenses are almost double his income. If any surplus capital exists in the corporation, husband retains it as rental income to supplement his weekly salary. Over the last few years, however, the capital in the corporation has declined from approximately $22,-000 in 1985 to $11,000 in 1987 and is expected to drop down to $7,000-$8,000. Husband stated that he normally needs $8,000-$10,000 in capital to operate his business.

Evidence of marital misconduct was presented to the trial court. Wife testified that she had struck husband on the head with a glass. Husband stated that wife drank hard liquor and eight to ten beers daily for approximately eight to ten years prior to the parties’ separation, and that he had found beer bottles, beer cans, and *623 whiskey bottles underneath the mattresses in the children’s rooms and in the vegetable bin. Husband also stated that wife refused to occupy the marital bedroom for four to five months at a time. Both parties testified to the use of profanity by the other.

In its decree of dissolution, the trial court awarded the marital home to the wife and J. Russo Cement Contractors, Inc., to the husband. In addition, the trial court ordered husband to pay $300 a month rehabilitative maintenance for two years and wife’s attorney’s fees.

Initially we note that the standard of review to be applied in a court-tried case is that “the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32[1—3] (Mo. banc 1976). In Wynn v. Wynn, 738 S.W.2d 915 (Mo.App.1987), this court stated that:

As trier of fact, it is the function, indeed the duty, of the trial court to decide the weight and value to be given to the testimony of any witness. On appeal, we view the evidence in a manner favorable to the decree and disregard contradictory evidence. Ware v. Ware, 647 S.W.2d 582, 584 (Mo.App.1983). We defer to the trial court even if the evidence could support a different conclusion. Id.

Wynn, 738 S.W.2d at 918[1].

In her first point on appeal, wife contends that the trial court abused its discretion in determining the amount and duration of rehabilitative maintenance. Specifically, wife asserts that the amount of $300 per month was grossly inadequate and failed to take into account the evidence as applied to the statutory factors set out in § 452.335 RSMo (1986). Additionally, she asserts that the time limitation of two years was based on mere speculation rather than an evidentiary basis of change of financial conditions as required by § 452.335 RSMo (1986). (All further statutory references shall be to RSMo (1986) unless otherwise indicated).

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Bluebook (online)
760 S.W.2d 621, 1988 Mo. App. LEXIS 1617, 1988 WL 124254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russo-v-russo-moctapp-1988.