Opinion
No. ED76954
Opinion Filed: October 10, 2000
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY, HONORABLE COLLEEN DOLAN.
Paul H. Schramm Daniel R. Schramm, 120 South Central Ave., Suite 1600, Clayton, MO. 63105 for appellant.
Theodore S. Schechter, Michael L. Schechter M. Adina Johnson 8000 Maryland Ave., Suite 950, Clayton, Missouri 63105, for respondent
Clifford H. Ahrens, P.J. and James R. Dowd, J.:
Husband, Bernard J. Hill, appeals from the decree of dissolution of his marriage to wife, Carolyn F. Hill. We affirm.
The parties were married in June 1964 and separated in November 1997. At the time of the dissolution, the parties had two daughters: one born in 1966 who was emancipated and one born in 1983 who resided with wife in the St. Louis area. A son, born in 1975, died in infancy.
At the time of the dissolution, wife was 57 years of age. She had a bachelor's degree and taught full-time until the parties' first child was born. Then, she worked half-time as a substitute teacher until the parties' second daughter was born. She was primarily a homemaker and care giver to the children. She intended to babysit for her grandchild so that her older daughter could return to work. Husband's vocational expert testified that wife could work as a tutor, teacher, teacher's assistant, day care worker, or retail sales clerk. He concluded that she would be able to earn between $18,000.00 and $26,000.00 per year.
At the time of the dissolution, husband was 56 years of age. He had a bachelor's degree in chemistry and a master's degree in business administration. From 1965 to 1991, husband was employed by Monsanto, originally as a chemist and from 1983 as a product safety manager. In 1991, he began working for Advanced Elastomer Systems (AES), also as a product safety manager. In 1994, husband earned over $86,000.00, in 1995 more than $114,000.00, in 1996 over $99,000.00, and in 1997 about $112,000.00.
In August 1995, husband moved to Akron, Ohio, to continue his employment with AES. Wife refused to go with him because their older daughter lived in the St. Louis area and she thought husband intended to return there. Between September 1995 and November 1997, husband initially visited St. Louis every two weeks, but his visits became less frequent. In 1995 and in 1996, husband received negative performance reviews, primarily for his failure to communicate with fellow employees. He also perceived being required to report to a former peer as a demotion. He gave AES notice of his retirement in September 1997. Wife's vocational expert conservatively predicted that husband could earn between the mid-$40,000.00's to mid-$60,000.00's for an entry-level position.
Before the separation, husband avoided being in the same room with wife, did not participate in family meals, and played music so loudly that wife and daughter retreated to their rooms. His behavior became increasingly strange; and included inappropriate dress, the use of profanities, and an interest in sadistic sexual practices.
After the parties separated, communication between husband and wife was difficult because husband would not answer the telephone. He did, however, communicate with daughter by e-mail. Without wife's knowledge and consent, he withdrew about $20,000.00 from a joint account and cashed about $8,000.00 in checks made payable to both him and wife. Between January and April 1999, he did not give wife any money for her and daughter's support.
We set out only those provisions of the decree of dissolution relevant to this appeal. The court set aside the separate property to each party and apportioned the debts. The court divided the marital assets as follows:
TO WIFE
Property Value
St. Louis home $160,000.00
1984 Toyota 400.00
50% of various mutual funds — held in joint names 24,436.12
50% of various stocks — held in husband's name 31,048.86
50% various IRAs 121,159.43
50% Solutia pension plan 102,035.21
50% account in wife's name 824.28
50% TWA frequent flyer miles unknown
Life insurance policy 9,070.57
Household goods 2,363.00
Other household goods ___________
Total $ 451,337.47
TO HUSBAND
Property Value
Ohio house $37,500.00
1985 Toyota 500.00
Life insurance policy 27,899.08
50% various mutual funds — held in joint names 24,436.12
50% various stocks — held in husband's name 31,048.86
50% various IRAs 121,159.43
50% Solutia pension plan 102,035.21
50% account in wife's name 824.28
50% TWA frequent flyer miles unknown
Deferred compensation — held in husband's name 4,723.17
Household goods 15,800.00
Funds dissipated by husband 28,548.53
Other household goods ___________
Total $ 394,474.68
The court imputed income of $893.00 per month to wife, income of $70,000.00 per year to husband, and investment income of $328.00 per month to each party. The court ordered husband to pay child support of $481.00 per month and maintenance of $1,550.00 per month. The court found that husband engaged in marital misconduct in his treatment of wife. Husband appeals from the decree.
Our review of this case is guided by the principles enunciated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). We do not retry the case, rather we accept as true the evidence and reasonable inferences therefrom in the light most favorable to the prevailing party and disregard contradictory evidence.Schwartzkopf v. Schwartzkopf, 9 S.W.3d 17, 20 (Mo.App.E.D. 1999). We recognize the superior position of the court to judge factors such as credibility, sincerity, character of the witnesses, and other intangibles that are not revealed in the transcript. Id.
In his first point, husband contends the trial court erred in awarding wife maintenance and child support because the court failed to impute income to wife from the IRAs and pension accounts awarded to her in the division of marital property. He argues that the income from those accounts would be sufficient to meet wife's reasonable needs, negating her need for maintenance.
Section 452.335.1, RSMo (1994) permits the trial court to award maintenance to a spouse if it finds (1) the spouse lacks sufficient property, including marital property apportioned as part of the dissolution judgment, to provide for the spouse's reasonable needs; and (2) the spouse is unable to support himself or herself through appropriate employment. If the spouse seeking maintenance meets the threshold test, the court determines the amount and duration of the maintenance after considering all relevant factors as set out in section 452.335.2, RSMo (1994).
The reasonable expectation of interest from a spouse's share of the marital property must be considered in determining the necessity for maintenance. In re Marriage of Clarke, 950 S.W.2d 11, 13 (Mo.App.E.D. 1997). But, a spouse is not required to deplete his or her portion of the marital assets for living expenses before being entitled to maintenance. Witt v. Witt, 930 S.W.2d 500, 503 (Mo.App.W.D. 1996). In addition, retirement accounts that are not readily available to a spouse should not be considered as income-producing property for purposes of determining whether the spouse is entitled to maintenance. Id.
Here, the trial court imputed income to wife of $328.00 per month from non-retirement assets. Yet, the court was unwilling to consider the IRAs and pension accounts awarded to wife as available for her support. The court rejected husband's expert's testimony regarding options for wife's use of the retirement accounts awarded to her, because the court reasoned that such options would require wife to "completely deplete" those assets, which wife is not required to do. Further, the court noted that wife's withdrawing money from the retirement accounts would trigger tax liability that would reduce the value of the property awarded to her in the dissolution. See Probstein v. Probstein, 767 S.W.2d 71, 74 (Mo.App.E.D. 1989). Because wife would be subjected to penalties and taxes on the IRAs and pension funds if they were withdrawn, the retirement assets awarded to her in the dissolution decree were not readily available. See, e.g., Witt, 930 S.W.2d at 503. In addition, wife is not required to use retirement assets for her everyday living expenses, but may retain them as retirement accounts.
The court did not err in refusing to consider the IRAs and pension accounts as income producing assets for purposes of determining whether wife was entitled to maintenance. To the extent that Nelson v. Nelson, 937 S.W.2d 753 (Mo.App.S.D. 1997), implies that retirement accounts may be considered in determining if a spouse is entitled to an award of maintenance, we decline to follow it. Husband's first point is denied.
In his second point, husband challenges the trial court's imputation of a salary of only $893.00 per month to wife. He argues that in light of wife's education and prior teaching experience, she was capable of earning more than minimum wage.
A trial court has discretion in imputing income to a custodial parent who is unemployed. Brock v. Brock, 936 S.W.2d 882, 887 (Mo.App.E.D. 1997). What constitutes the appropriate circumstances to impute income depends on the facts and must be determined on a case-by-case basis. Pelch v. Schupp, 991 S.W.2d 729, 734 (Mo.App.W.D. 1999). The court may consider employment potential and probable earnings level based on the spouse's recent work history, occupational qualifications, and prevailing job opportunities. Bullard v. Bullard, 969 S.W.2d 880, 883 (Mo.App.E.D. 1998).
At the time of the dissolution, wife was 57 years of age. Although she had a college degree, she had not been employed as a full-time teacher since 1966, at which time she quit work to care for the parties' first daughter. Wife later worked part-time as a substitute teacher, but had not worked in that capacity since the birth of her second daughter in 1983. Wife therefore was a full-time homemaker for 15 years before the dissolution. Maintenance may be awarded when one spouse was a homemaker during the marriage and relied on the other spouse for monetary support, staying out of the marketplace. Witt, 930 S.W.2d at 504. In addition, wife's withdrawal from the job market to assume the duties of a homemaker contributed to her being unable to provide for her reasonable needs and could serve as a basis for the court's award of maintenance. See id. Although the trial court mistakenly found that wife had "not been employed in any capacity as a teacher for over 30 years" because the court failed to consider her part-time employment as a substitute teacher, this error of fact was minor and possibly referred to wife's last employment as a full-time teacher.
In addition, the trial court found that the testimony of husband's expert witness regarding wife's employment opportunities as a teacher was "not credible." Husband's expert never met or talked with wife. See, e.g., Brock, 936 S.W.2d at 886. The court was free to disbelieve this testimony.
The trial court did not abuse its discretion in imputing a minimum wage to wife. Husband's second point is denied.
In his third point, husband contends the trial court erred in imputing an annual salary to him of $70,000.00 per year for purposes of determining maintenance and child support. He argues the imputed salary was not supported by the evidence.
When awarding child support and maintenance, the trial court may attribute income to a party who is not employed or who is underemployed. Jones v. Jones, 958 S.W.2d 607, 611 (Mo.App.W.D. 1998). In determining the financial condition of a husband at the time of dissolution, the court may consider his past and present earnings and his anticipated future earning capacity. Id. at 612. A husband may not escape his responsibility by voluntarily declining to work, by deliberately limiting his work to reduce his income, or by otherwise disabling himself financially. Id. A court may, in proper circumstances, impute an income to a husband according to what he could have earned by the use of his best efforts to gain employment suitable to his capabilities. Id.
At the time of dissolution, husband was 56 years of age. He had a bachelor's degree in chemistry and a master's degree in business administration. For 15 years before retiring, he worked as a product safety manager. In the three years preceding his retirement, he earned $114,000.00 in 1995, $99,000.00 in 1996, and $112,000.00 in 1997. Although wife's vocational expert testified that husband could earn between the mid-$40,000.00's to the mid-$60,000.00's, the expert also stated that his estimates were based upon an entry level position and were conservative. The court was entitled to reject the expert's testimony and to consider what husband could earn "by use of his best efforts." Based on the evidence before it as to husband's past earnings, the trial court imputed more income than the expert did, but less than the maximum husband had earned in the recent past.
Further, husband voluntarily took early retirement from his job. He testified that he did so to pursue other "enthusiasms," such as spending time on the computer, working on his house, visiting his father in another state, and e-mailing his younger daughter. Other than considering an acting career, he had taken no steps to secure employment. Husband could not voluntarily reduce his income when wife and his daughter were still in need of, and entitled to, his support.
The trial court did not abuse its discretion in imputing an annual salary of $70,000.00 to husband. Husband's third point is denied.
The judgment of the trial court is affirmed.