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09/28/93 BARRY LEE FAINTICH v. SHERYL FAINTICH

September 28, 1993

BARRY LEE FAINTICH, PETITIONER-APPELLANT,
v.
SHERYL FAINTICH, RESPONDENT-RESPONDENT.



Appeal from the Circuit Court of St. Louis County. Honorable Robert D. McAllister

Crandall, Jr.

The opinion of the court was delivered by: Crandall

Husband, Barry Lee Faintich, appeals from the pendente lite (PDL) order of the trial court in favor of wife, Sheryl Faintich, in their action for dissolution of marriage. We affirm.

Husband and wife were married in August 1974 and separated in June 1991. Two children were born of the marriage. At the time of the PDL hearing, one of the children was almost 15 years of age and the other was 12 years of age. Husband filed his petition for dissolution of marriage in August 1991.

In her PDL motion, filed in December 1991, wife sought temporary maintenance, child support, attorney's fees, and costs. Attached to wife's motion was her affidavit in which she asserted that she was without sufficient means to support herself and that husband was earning a "substantial and lucrative income." In her amended motion, wife sought child support in the amount of $1,500.00 per child, temporary maintenance in the amount of $13,000.00 per month, attorney's fees in the amount of $25,000.00, and costs in the amount of $7,500.00.

At the time of the hearing on her PDL motion, wife was 44 years of age. She testified that she held a Bachelor's Degree in Fine Arts and in the past worked as a free-lance graphic designer. When she worked, she did so primarily during the children's school hours. The gross income from her business for the years 1988 and 1989 was about $10,000.00. At the time of the hearing, she testified that she had not been active in her own business since husband and she separated in June 1991, but that she had secured employment recently as a sales representative for a graphic arts studio. Her salary was to be based solely on commission. Wife also received $116.00 per month in the form of a payment on a promissory note payable to her. She stated that her average total monthly expenses were $20,171.62.

Husband testified that he was the sole owner of a business which deals in rare coins, gold, silver, jewelry, and different types of antiques and collectibles. His best year in business had been 1980 when a boom in precious metals had occurred and when he had earned approximately $500,000.00. He stated that the market in coins, gold, and silver was depressed and that his business had suffered a loss for the 1991 tax year. As a result, it was necessary for him to reduce his salary to $60,000.00. He stated that his total net income was $3,500.00 per month.

Throughout the marriage, husband and wife enjoyed an affluent lifestyle. They took numerous vacations. They dined out at restaurants frequently. Husband usually paid for these meals and vacations in cash. Husband and wife each drove expensive, European cars. Wife testified that she spent $3,000.00 per month for her clothing alone and that husband gave her $700.00 to $800.00 a week in cash for spending money. Both children attended expensive private schools. Each child had a trust account in his name in the amount of $150,000.00.

According to husband's statement of property, he and wife owned securities valued at over $110,000.00. Third persons owed husband debts totaling $217,000.00. In addition, husband had retirement accounts in excess of $250,000.00. Wife's retirement accounts were worth less than $5,000.00.

The trial court found that husband's gross income was $20,000.00 per month. The court ordered husband to pay temporary maintenance of $3,500.00 per month, child support for both children for a total of $1,550.00 per month, attorney's fees in the amount of $15,000.00, and $2,500.00 for court costs. The court also ordered husband to pay the cost of each child's attending his respective private school, the monthly home mortgage payment, the real estate and personal property taxes, the homeowner's insurance, the automobile insurance on wife's vehicle, the medical insurance on wife and the children, and any medical, psychological, and dental costs not covered by insurance. The court ordered husband to pay $2,702.00 to a certified public accountant who testified as wife's expert at the PDL hearing.

In his first point, husband contends that the trial court erred in ordering him to pay temporary maintenance and the other expenses enumerated above. He does not challenge, however, the trial court's order pertaining to child support. He asserts that the trial court's total award to wife amounted to $6,343.59 per month and therefore exceeded his ability to pay. He also claims that the trial court's finding that he earned $20,000.00 per month was unsupported by any evidence.

We will uphold the trial court's order unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). The court's discretion in awarding temporary maintenance and attorney's fees pendente lite is broader than at the dissolution hearing. Camden v. Camden, 844 S.W.2d 75, 78 (Mo.App.E.D. 1992). "A reviewing court is extremely cautious about altering judgments regarding such allowances because they are temporary and their effects do not extend beyond the final hearing of the case." Id. (quoting Cross v. Cross, 790 S.W.2d 928, 929 (Mo.App. 1990)).

Section 452.315, RSMo (1986) authorizes a court to issue orders on motions for temporary maintenance. In determining whether an award is warranted, the court must consider the relevant factors enumerated in § 452.335, RSMo (Cum.Supp. 1992), which include:

(1) The financial resources of the party seeking maintenance, . . . and his ability to meet his ...


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