From the Circuit Court of the City of St. Louis; Civil Appeal; Judge Jack L. Koehr.
Motion for Rehearing Overruled, Transfer Denied September 15, 1983.
Before Karohl, P.j., Houser, Sr.J., Sp.J., Litz, Sp.J.
The opinion of the court was delivered by: Houser
Upon a finding that the marriage between Beatrice and Lonnie Jones was irretrievably broken the circuit Judge dissolved the marriage, divided the marital property and awarded Beatrice $175.00 a month maintenance. Beatrice has appealed, challenging the division and contending that the maintenance award is inadequate; that both are against the weight of the evidence and that the awards ignore Lonnie's marital misconduct. She also asserts error in excluding pertinent evidence, and that she received ineffective assistance of counsel at the trial.
Married in 1930, the couple had four children, all of whom are now emancipated and live outside the home. The parties purchased a house in 1955, at a cost of $10,500. The husband worked for a packing house until his retirement in 1968. The wife remained in the home, raising the children and performing household duties. The house is free of mortgage debt and is now worth about $30,000. Both parties live in the house, in separate bedrooms. The upstairs is rented for $84.00 a month, and a garage is rented for $9.00 a month. Lonnie, aged 77 years, receives Social Security of $488.00 a month, a monthly pension of $117.00, and half the rent ($46.50) each month. In retirement he has worked as a guard at a school crossing, for $13.00 a day when he works. There is no evidence of the number of school days he worked during any year. He was not working at time of trial in August 1982 and did not know whether he would be going back in September. Beatrice, who has never worked outside the home and is unable to take outside employment because of high blood pressure and heart trouble, receives $209.00 a month Social Security and $46.50 a month rent. She has a $4,000 savings account which she saved from Social Security and rent money. There is a bank account in the name of Lonnie Jones, Trustee for Beatrice Jones, in the sum of $3,910.86, the source of which was not shown. Lonnie has a 1977 Oldsmobile, clear of debt, the value of which was not established.
There is no evidence of the necessary living expenses of either party for food, clothing, medical costs and incidentals, and no evidence of the amount of taxes on the property, or the cost of insurance, repairs and maintenance, or the cost of water, light and heat.
The dissolution decree orders respondent to pay appellant $175.00 per month as maintenance beginning September 1, 1982, and orders each party to pay his or her attorney's fee. The court awarded each party his or her separate clothing and jewelry, and an undivided one-half interest in the house. The $4,000 bank account was awarded to appellant, the $3,910.86 bank account to respondent. Appellant was awarded the furniture in her bedroom, the living room and the kitchen. Respondent was awarded his bedroom furniture and all other furniture and furnishings in the residence not specifically distributed to appellant. Respondent received the Oldsmobile.
We review this court-tried case under Rule 73.01, and are obliged to sustain the decree unless there is no substantial evidence to support the decree, unless the decree is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. Banc 1976). Due regard must be given to the trial court's ability to Judge the credibility of the witnesses.
Although there is no evidence as to respondent's monthly or annual earnings as school crossing guard, appellant's counsel argues that respondent's income from the job would be $1,872 per year or $156.00 per month, based upon an assumption that he would work on 144 days of a 180-day school year. On this assumption the monthly income of the parties would be as follows:
$488.00 (Social Security) $209.00 (Social Security)
117.00 (Pension) 46.50 (Rental Income)