In re the Marriage of Lavada Fay Otis and Russell James Otis. LAVADA FAY OTIS, Petitioner-Respondent v. RUSSELL JAMES OTIS

Missouri Court of Appeals
Southern District
Division Two
In re the Marriage of Lavada Fay Otis )
and Russell James Otis )
)
LAVADA FAY OTIS, )
)
Petitioner-Respondent, )
)
vs. ) No. SD33453
)
RUSSELL JAMES OTIS, ) Filed July 14, 2015
)
Respondent-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF MARIES COUNTY
Honorable Kerry G. Rowden, Associate Circuit Judge
AFFIRMED AS MODIFIED
Russell Otis (“Husband”) appeals from the trial court’s judgment regarding maintenance
and attorney’s fees involved in the dissolution of Husband’s marriage to Lavada Otis (“Wife,”
presently known as Lavada Moore). Husband argues: (1) that the trial court erred in awarding
Wife $670 of nonmodifiable maintenance because the court failed to examine all the statutory
requirements; (2) that the trial court erred in awarding Wife nonmodifiable maintenance because
it is speculative as to the future financial positions of the parties; and (3) that the court erred in
awarding attorney’s fees to Wife because the court failed to consider the resources of each party.
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Finding merit in Husband’s second point, we modify the judgment to designate the maintenance
award as modifiable but affirm the remainder of the judgment in all other respects.
Factual and Procedural Background
The facts relevant to this appeal, set forth in the light most favorable to the judgment,
Scruggs v. Scruggs, 161 S.W.3d 383, 388 (Mo.App. 2005), are as follows. Wife, age 66, is
retired and receives $707 per month in retirement benefits. Husband, age 57, is employed and
earns $3,802.07 per month. Wife filed a petition for dissolution that requested maintenance
because she was “not currently employed” and did not have “sufficient property to provide for
her reasonable needs.” The parties proceeded to a bench trial on the issues of maintenance,
property division, and attorney’s fees. Husband was self-represented at trial, and Wife was
represented by counsel. She testified that she previously held a Roth IRA valued at $6,000 in her
name alone but she had expended all the funds in that account paying attorney’s fees and
maintaining the household. Wife claimed that she needed maintenance because her cost of living
exceeded her retirement benefits and she was unable to work at the time due to “health issues.”
The trial court found that Wife was unemployed and it was unlikely that she could
become re-employed. Therefore, the court awarded Wife maintenance in the amount of $670 per
month, which it designated as nonmodifiable and terminable only upon Wife’s death or
remarriage. Wife was also awarded attorney’s fees of $6,224. Husband then hired an attorney
and filed an after-trial motion, which was denied by docket entry. This appeal timely followed.
Standard of Review
An appellate court must affirm the circuit court’s award of maintenance
unless there is no substantial evidence to support the award, it is against the
weight of the evidence, or it erroneously declares or applies the law. We afford
the circuit court a great deal of discretion in awarding maintenance. In the
absence of a finding that the amount is patently unwarranted and wholly beyond
the means of the spouse who pays, this court will not interfere with the circuit
court’s award of maintenance.
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Bur. v. Burnett, 18 S.W.3d 27, 29 (Mo.App. 2000) (internal citations omitted). The trial
court has similarly broad discretion with respect to awards of attorney’s fees. Manning v.
Manning, 292 S.W.3d 459, 462 (Mo.App. 2009). We therefore presume correct the trial court’s
decision. Id. “[I]f an appellate court believes the trial court abused its discretion, it is obligated
to enter the judgment the trial court should have entered.” Alles v. Alles, 916 S.W.2d 353, 355
(Mo.App. 1996); see also Rule 84.14. 1
While Husband’s second point challenges the trial court’s nonmodifiable designation of
the maintenance award as an abuse of discretion, neither his first point nor his third point assert
any legal reason for trial error cognizable within our standard of review. Rather, in both of those
points, Husband asserts that the trial court failed to consider certain factors related to the award
of maintenance and attorney fees, respectively, supported by argument premised upon the
omission of any findings of fact in the trial court’s judgment related to those alleged
unconsidered factors. We address those points together and then address Husband’s second
point.
Discussion
Points I and III: No Error in Failure to Make Unrequested Findings of Fact
Husband’s first point contends that the trial court erred in awarding maintenance because
it “failed to examine the threshold requirements and all relevant factors of section 452.335.” 2
Husband’s argument goes on to detail numerous alleged shortcomings in the trial court’s
judgment premised upon the lack of any factual findings in the judgment addressing these
statutory factors.
1
Rule references are to Missouri Court Rules (2015).
2
Statutory references are to RSMo 2000.
3
Similarly, in his third point, Husband contends that the trial court erred in awarding Wife
attorney’s fees because the court “failed to consider Husband’s ability to pay them and the
resources of each party, in that Wife had already paid her attorney in full using a marital asset,
therefore, the award of attorney’s fees to Wife provides her with a windfall.” Section 452.355
provides that attorney’s fees may be warranted “from time to time after considering all relevant
factors including the financial resources of both parties, the merits of the case and the actions of
the parties during the pendency of the action[.]” Husband argues that the trial court failed to
perform a meaningful analysis of the above factors. Once again, Husband premises his claim of
error for failing to consider certain evidence upon the omission of related findings of fact in the
trial court’s judgment.
Both of Husband’s points fail because a judgment is not deficient because the trial court
fails to announce that it has arrived at its decision “in accordance with the requisite statutory
factors.” Schroeder v. Schroeder, 924 S.W.2d 22, 28 (Mo.App. 1996). “In the absence of a
specific request by counsel, the factors need not be the subject of findings of fact or conclusions
of law.” P.L.K. v. R.J.K., 682 S.W.2d 486, 489 (Mo.App. 1984); see also Johnson v. Johnson,
671 S.W.2d 426, 427-28 (Mo.App. 1984). Husband did not request the trial court to make
findings of fact on any issues before the introduction of evidence at trial as required by Rule
73.01(c). “While a party may request that the trial court include specific findings in its
judgment, pursuant to Rule 73.01(c), where he does not do so prior to the introduction of
evidence, the trial court is under no obligation to specifically identify the facts it utilized in its
determinations.” In re Marriage of Geske, 421 S.W.3d 490, 497 (Mo.App. 2013). Where a trial
court is not obligated to make specific findings of fact in its judgment, the omission of such
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findings provides no logical basis upon which to premise trial court error. Husband’s first and
third points are denied.
Point II: Designating Maintenance Award as Nonmodifiable was an Abuse of Discretion
Husband’s second point argues that the trial court erred in awarding Wife nonmodifiable
maintenance of an unlimited duration 3 because it is speculative as to Wife’s future needs and
Husband’s future ability to pay. Although trial courts have broad discretion with respect to
awards of maintenance, “[section 452.335] does not bestow unfettered discretion on the trial
court.” In re Marriage of Lawry, 883 S.W.2d 84, 90 (Mo.App. 1994). “[A] maintenance order
providing that it is ‘non-modifiable’ must be justified by the facts and circumstances of that
particular case.” Id. “Where future events which may be pertinent to the issue of maintenance
are uncertain, such an award should be modifiable.” Id.
In In re Marriage of Michel, the court considered a nonmodifiable maintenance
provision and noted that because one of the parties to divorce “testified about the current status
of her health, but failed to include any medical records or expert testimony regarding her future
health situation,” the record was devoid “of any evidence regarding what her future health status
might be or her ability to be employed in the future.” 142 S.W.3d 912, 926 (Mo.App. 2004).
For this reason, among others, the appellate court reversed the nonmodifiable designation in the
judgment. Id.
Similarly here, Wife’s attorney asked, “And do you have any opportunities for
employment at this time?” and Wife responded, “At this time, because of health issues, no, I do
not.” (Emphasis added). Although the trial court could believe from this testimony that Wife
was not employable at the time of trial due to her health issues or for a reasonable period of time
3
Husband does not argue that the trial court erred in awarding maintenance of an unlimited duration. Rather, he
argues that, based upon the evidence before the trial court, it erred in designating such maintenance as
nonmodifiable.
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thereafter, Wife proffered no evidence concerning the nature of her health issues and whether
they would continue such that she would be unable to work or earn any other income for the rest
of her life. Similarly, there is no evidence in the record that Wife’s financial needs will not
change during the rest of her life. In these respects then, there is no substantial evidence in the
record supporting that Wife’s future financial circumstances will not change over the course of
the rest of her life, which would have been necessary to justify designating the maintenance
award as nonmodifiable.
Husband also argues that the designation of the maintenance award as nonmodifiable is
unjustified because it fails to consider potential changes in Husband’s future ability to pay. By
the terms of the judgment, Husband’s maintenance obligation is fixed regardless of any change
in his future ability to pay that maintenance. There is no substantial evidence in the record,
however, that supports that Husband’s income and expenses will not change in the future so as to
have no impact upon his future ability to pay the maintenance award. Any inference or
conclusion otherwise is simply speculation that is not conducive to an award of nonmodifiable
maintenance. See e.g., Boone v. Boone, 637 S.W.2d 249, 250 (Mo.App. 1982) (A couple’s
competing arguments concerning their declining health and future retirement was “too
speculative” to find trial court error at present and should be addressed factually with a motion to
modify if and when they develop.).
Based upon the record before the trial court, there was no substantial evidence as to the
likely stability of the parties’ future financial circumstances which would support designating the
maintenance award as nonmodifiable. Therefore, such a designation was an abuse of the trial
court’s discretion. Husband’s second point is granted. Therefore, as directed by Rule 84.14, we
modify the trial court’s judgment to designate the maintenance award as modifiable.
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Decision
The trial court’s judgment is modified to reflect that the maintenance award is designated
as modifiable, but is affirmed in all other respects.
GARY W. LYNCH, J. – Opinion author
MARY W. SHEFFIELD, P.J. – concurs
NANCY STEFFEN RAHMEYER, J. – concurs
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