Thomas v. Thomas

829 S.W.2d 491, 1992 Mo. App. LEXIS 339
CourtMissouri Court of Appeals
DecidedMarch 3, 1992
DocketNo. 59976
StatusPublished
Cited by6 cases

This text of 829 S.W.2d 491 (Thomas v. Thomas) 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
Thomas v. Thomas, 829 S.W.2d 491, 1992 Mo. App. LEXIS 339 (Mo. Ct. App. 1992).

Opinion

CRANE, Judge.

Wife appeals from a decree of dissolution of marriage which divided marital property and awarded child custody, child support, maintenance for one year, and attorney’s fees. She challenges the one year limitation on maintenance. We reverse and remand.

Judith A. Thomas [wife] and Stanley R. Thomas III [husband] were married on March 25, 1967. 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 May 11, 1988. The trial court entered its Findings of Fact, Conclusions of Law and Order dissolving the marriage on February 25, 1991. The court awarded the parties joint legal and physical custody of their minor daughter, ordered husband to pay $814 per month as child support, divided the marital property, and ordered husband to pay wife $650.00 per month as non-modifiable maintenance for twelve months and a portion of her attorney’s fees.

Wife challenges the one year limitation on the award of maintenance and contends that the court erred in making certain findings underlying that award. The trial court has broad discretion in determining the amount and the duration of maintenance pursuant to § 452.335 RSMo (Supp.1991). 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 conditions 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. May v. May, 801 S.W.2d 728, 731 (Mo.App.1990); Hefti v. Hefti, 682 S.W.2d 65, 67 (Mo.App.1984).

At the time of trial, wife was employed full time as an instructor at the Bryan Institute where she trains students to be medical office assistants. She was earning $7.00 per hour. Her 1990 earnings were $9,211.74. Prior to working at the Bryan Institute, she worked as a medical office assistant part-time for eleven years with her highest pay being $9.36 per hour. She has never earned more than $14,000 to $15,000 per year. Wife has a Bachelor of Science degree in special education, awarded in 1967.

After considering this evidence, the trial court found with respect to wife:

Petitioner lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs.
* # # * * *
Petitioner is able to support herself through appropriate employment.
* * * * * *
Petitioner is presently earning $7.00 per hour for forty hours per week. For[493]*493merly, she earned $9.00 per hour and worked part-time about twenty hours per week. She worked part-time for a Dr. Cunningham from 1979 until she was discharged in October 1990, and Petitioner had refused full-time employment from Dr. Cunningham in the past. Respondent did not request Petitioner to stay home and not seek gainful employment. The Parties youngest child is currently eighteen years of age, and, therefore, Petitioner has not needed to stay home with minor children for the last eleven or twelve years. Petitioner has a B.S. degree, and is capable of employment paying much more than her current salary. There is no medical reason that Petitioner cannot work on a full-time basis.

The court then awarded wife non-modifiable maintenance in the amount of $650 per month for twelve months.

Wife contends that there was no substantial evidence in the record of an impending change in the parties’ financial circumstances or a reasonable expectation of an increase in wife’s earning ability and that the court’s findings that she could make a substantial salary, support herself, and that no medical reason prevented her from full time work were not supported by the evidence and were erroneous because the court allegedly adopted findings prepared by husband’s attorney.

At the outset we note that a trial court’s adoption of proposed findings of fact prepared by a party’s counsel is not per se erroneous. Ederle v. Ederle, 741 S.W.2d 883, 884-85 (Mo.App.1987). Thus our inquiry is limited to whether or not the decree is supported by substantial evidence, is against the weight of the evidence, and whether it erroneously declares or applies the law. Id. at 885.

We agree that there was no evidence in the record to support a finding of an impending change in the financial condition of the parties or of a reasonable expectation that wife’s financial condition would improve in one year or that wife was capable of earning a higher salary. At the time of trial she was employed full-time, teaching students to be medical office assistants. This position utilizes her education degree and her eleven years experience as a medical office assistant. Thus wife is using her training and experience in appropriate full-time employment. The only evidence that she could make a higher salary was the fact that she had once made $9.36 an hour, but that was in a part-time capacity, and there was no evidence that she could currently make that amount. There was no evidence that wife was likely to advance substantially in her present occupation. Burbes, 739 S.W.2d at 585. Although she holds a degree in special education, it is a twenty-four year old out-of-state degree, she has never taught in the field, she has no Missouri teaching certificate, and no evidence was developed that wife could qualify for a teaching certificate. See Clark v. Clark, 801 S.W.2d 95, 98 (Mo.App.1990). Further, there was no evidence of the range of salary wife could expect if she was able to obtain a certificate. There was no evidence that this degree would qualify her for a position superior to the one which she presently holds. Finney v. Finney, 760 S.W.2d 619, 620 (Mo.App.1988).

Wife’s situation is different from the situation in which a dependant spouse with specialized training or a degree contends she is unemployable. In Bixler v. Bixler, 810 S.W.2d 95, 99 (Mo.App.1991), we held that the evidence was sufficient to support a reasonable probability that wife could secure employment within one and one-half years where wife was a college graduate holding a current teaching certificate, had full-time teaching experience and had taught as a substitute teacher during the two years prior to trial. In Sansone v. Sansone,

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Bluebook (online)
829 S.W.2d 491, 1992 Mo. App. LEXIS 339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-thomas-moctapp-1992.