Valentine v. Valentine

400 S.W.3d 14, 2013 WL 1614631, 2013 Mo. App. LEXIS 467
CourtMissouri Court of Appeals
DecidedApril 16, 2013
DocketNo. ED 98167
StatusPublished
Cited by26 cases

This text of 400 S.W.3d 14 (Valentine v. Valentine) 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
Valentine v. Valentine, 400 S.W.3d 14, 2013 WL 1614631, 2013 Mo. App. LEXIS 467 (Mo. Ct. App. 2013).

Opinion

ROBERT M. CLAYTON III, Judge.

Jody Valentine (“Husband”) appeals from the trial court’s judgment dissolving his marriage to Christine Valentine (“Wife”). Husband raises eleven points of error on appeal concerning the award of maintenance, the distribution of marital and nonmarital property, the trial court’s finding that he dissipated certain marital funds, the award of custody, the determination of residential parent, the award of child support, and the grant of Wife’s attorney’s fees. We reverse and remand the maintenance award for the trial court to consider Wife’s ability to meet her reasonable needs in light of her portion of the marital assets. In all other respects, we affirm.

[20]*20I. BACKGROUND

The parties married in 1999, and two children were born of the marriage. The parties separated in December 2008, and Wife filed a petition for dissolution in January 2010.

Following trial, the trial court dissolved the marriage. The court ordered Husband to pay Wife $1,100 per month for modifiable maintenance, awarded the parties joint legal and physical custody of the two children, ordered Husband to pay Wife the amount of $1,401 per month in child support, set aside to Husband $33,000 in separate property for his.non-marital contribution to his retirement accounts, ordered the division of marital property and debts, and ordered Husband to pay $10,000 towards Wife’s attorney’s fees. This appeal follows.

II. DISCUSSION

A. Rule 73.01 Findings

In his first point on appeal, Husband asserts that the trial court erred by failing to make written findings pursuant to his Rule 73.011 request. Husband reasserts this argument in various sub-points under points three, eight, and ten. We address all four identical allegations here exclusively.

Rule 73.01(c) states that “[t]he court may, or if requested by a party shall, include in the opinion findings on the controverted fact issues specified by the party.... All fact issues upon which no specific finding are made shall be considered as having been found in accordance with the result reached.” The provisions of Rule 73.01 are mandatory where a party properly requests findings of specific fact issues. Lattier v. Lattier, 857 S.W.2d 548, 549 (Mo.App. E.D.1993). However, the failure of a trial court to make such findings mandates reversal only when the trial court’s failure to issue requested findings materially interferes with appellate review. Id. If the record supports the judgment or if the court makes findings that substantially comply with a party’s requests, the appellate court will affirm. Cohen v. Cohen, 178 S.W.3d 656, 662 (Mo.App. W.D.2005). Here, the Judgment and its findings are sufficient to allow for appellate review, and thus any alleged Rule 73.01 errors are not grounds for reversal. Point one on appeal is denied.

B. Maintenance

In points two and three, Husband challenges the trial court’s award of maintenance. Appellate courts must affirm the award of maintenance unless there is no substantial evidence to support it. Linton v. Linton, 117 S.W.3d 198, 205 (Mo.App. S.D.2003). The trial court has considerable discretion in determining a maintenance award, and to succeed on appeal, the appellant must show an abuse of that discretion. Ferry v. Ferry, 327 S.W.3d 599, 602 (Mo.App. E.D.2010).

1. Wife’s Reasonable Needs

In point two, Husband challenges the trial court’s award of maintenance asserting the court did not determine Wife’s reasonable needs in light of the marital property awarded her and her appropriate employment. We agree.

In a proceeding for dissolution of marriage, a court may award maintenance to a spouse “only if it finds the spouse seeking maintenance: (1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (2) Is unable to support himself through appropriate employ[21]*21ment....” Section 452.335.1.2 Maintenance is limited to the needs of the recipient. Schubert v. Schubert, 366 S.W.3d 55, 64 (Mo.App. E.D.2012).

Here, Wife testified at trial that she anticipated monthly expenses equaling $3,999.3 The court calculated her reasonable monthly expenses to be approximately $3,800. While the trial court did not specify the basis for its calculation of Wife’s reasonable expenses, our review of the record shows that number is consistent with the evidence. See Cohen, 178 S.W.3d at 662. First, Wife testified these expenses were incurred solely for herself, with the exception of the $78 gym membership, which also covered the children. Because expenses on behalf of the parties’ children are not included in the maintenance calculation, it appears the trial court properly credited her for only half of the gym membership cost. See Schubert, 366 S.W.3d at 64. Second, Wife testified that in an effort to downsize her expenses in the future, she would not maintain her housekeeping expenses of $160 per month. It appears the trial court did not find housekeeping a necessary expense. Subtracting these two amounts from the $3,999 asserted by Wife at trial, the record supports the court’s finding of reasonable monthly expenses of approximately $3,800. See Lattier, 857 S.W.2d at 549; Cohen, 178 S.W.3d at 662.

After determining a spouse’s reasonable needs, the court next considers whether the spouse lacks sufficient property, including marital property apportioned to her, to provide for these reasonable needs, or is unable to support herself though appropriate employment. Section 452.335.1. Husband asserts here that Wife was awarded sufficient marital property to meet her needs and the trial court erred in failing to consider whether the marital property awarded her was income producing.

At trial, Wife testified she received a monthly net income of $2,654 and anticipated an approximate 2.3 percent raise. Accordingly, the court determined that Wife’s net income was $2,700 per month. Based on Wife’s income and reasonable needs, the court concluded she “had a shortfall” of approximately $1,100 per month and required maintenance. On these facts, the court ordered maintenance in the amount of $1,100 per month.

Although the trial court stated it determined the maintenance award “pursuant to Section 453.335,” we find that the court failed to consider fully whether Wife could provide for her needs through use of property, including the marital property apportioned her in the dissolution. The court awarded Wife $282,540 in marital assets, including $260,500 in marital and nonmarital IRAs and retirement accounts. While a spouse is not required to deplete or consume his or her portion of the marital assets before being entitled to maintenance, a court must consider whether the spouse can earn income from his or her share of the marital property. Schubert, 366 S.W.3d at 64-65. “Failure to consider [22]*22the recipient spouse’s reasonable expectation of income from investment of the marital property constitutes error.” Id. at 65 (quoting Breihan v. Breihan, 73 S.W.3d 771, 777-78 (Mo.App. E.D.2002)).

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Bluebook (online)
400 S.W.3d 14, 2013 WL 1614631, 2013 Mo. App. LEXIS 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/valentine-v-valentine-moctapp-2013.