Wessel v. Wessel

PER CURIAM.

Both parties appeal from a judgment dissolving their marriage and granting other relief. Petitioner contends that she should have been awarded more in the way of maintenance and child support, and that their property was not properly divided. On his appeal, Respondent contends that the trial court awarded excessive maintenance and child support.

Review is under Rule 73.01. As interpreted, that rule requires that we sustain the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. In re Marriage of Torix, 863 S.W.2d 935, 937 (Mo.App.1993).

Petitioner contends that the trial court erred in awarding maintenance and calculating child support because it imputed wages of $1,250 per month to her. The matter was heard before a family court commissioner. His initial recommendation included findings “imputing minimum wage of $736 per month” to Petitioner. His amended findings imputed $1,250.00 per month to Petitioner. The judgment adopted the amended findings. Petitioner contends that the trial court improperly imputed the wages to her, as it was based upon speculation and the only evidence was that she may be capable of earning minimum wage or slightly above that.¹

Petitioner has a Bachelor of Arts degree in home economics. Since the marriage, she primarily was a homemaker and caretaker for the parties’ two children. This was in accordance with both parties’ wishes. Since their marriage, Petitioner worked at two fast food restaurants: at Arby’s Restaurant, from 1977 until shortly before the birth of their first child in 1983; and at McDonald’s Restaurant, for six to nine months, in 1992. At these jobs, she made minimum wage or slightly above it.

Respondent offered into evidence newspaper employment advertisements, which he testified Petitioner would be qualified to fill. The ads stated that a “restaurant manager trainee” could make from $24,000 to $40,000 per year. Also offered was an ad stating that the general manager at a fast food restaurant could make $75,000 per year, and manager trainees could earn from $17,000 to $18,000 per year. Petitioner contends that Respondent was not qualified to determine jobs for which Petitioner was qualified, and that the newspaper ads were hearsay. Petitioner asserts that the evidence was speculative as to whether Petitioner could, in fact, obtain a job like the one advertised, or earn the wages therein mentioned.

The newspaper ads were hearsay. See Cantrell v. Superior Loan Corp., 603 S.W.2d 627, 644 (Mo.App.1980). See also Thoroughbred Ford, Inc. v. Ford Motor Co., 908 S.W.2d 719, 736 (Mo.App.1995)(newspaper article is admissible if not for the truth but that it was written). Here, the ads were offered for the truth of the information stated within. Respondent was not qualified as an expert, which might make certain hearsay evidence relevant if it was “a type reasonably relied upon by experts in the field_” Section 490.065.3, RSMo 1994.

In LoPiccolo v. LoPiccolo, 547 S.W.2d 501, 506 (Mo.App.1977), the court stated:

The ‘earning capacity’ of a spouse is an illusory financial resource if the evidence does not justify a conclusion that the spouse can realize such ‘earning capacity.’ (citing case) The court is not restricted to a consideration of present earnings and can consider prior earning capacity and probable future prospects, but the evidence must justify the inference that the spouse will realize such expectations, (citing case) A future income source should not be considered if the amount of the future income is speculative.

The ads and Respondent’s conclusions were not properly admissible to show Petitioner’s earning capacity. We conclude that there was no valid evidence that Petitioner could earn the amount imputed to her. There was evidence that Petitioner could make $867.00 monthly. Accordingly, we have re-calculated the amount of child support, pursuant to Form 14, and have determined that child support should be increased from $1,426.00 per month to $1,480.00 per month. Maintenance should be increased from $435.00 per month to $500.00 per month, both to be effective as of the date of the judgment. See In re Marriage of Runez, 666 S.W.2d 430, 434 (Mo.App.1983).

Review of Petitioner’s remaining contentions reveals no merit. The same is true of Respondent’s contentions. They are denied pursuant to Rules 84.16(b)(1) and (5).

The portion of the judgment awarding child support and maintenance is reversed and the cause remanded to the trial court to amend the judgment in those respects by setting child support to be $1,480.00 per month, and maintenance at $500.00 per month. The increased maintenance and child support shall be effective and payable from May 7, 1996, the date of the judgment. In all other respects the judgment is affirmed.

1 . There are also other contentions regarding the calculation of child support and the awarding of maintenance, but we find no merit in those contentions.