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In re Marriage of Otis

Court of Appeals of Missouri, Southern District, Second Division

July 14, 2015

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

Page 143

          APPEAL FROM THE CIRCUIT COURT OF MARIES COUNTY. Honorable Kerry G. Rowden, Associate Circuit Judge.

         For Appellant: Kathleen T. McCarthy, Law Offices of Kathleen T. McCarthy, L.L.C., St. Louis, Missouri.

         For Respondent: James C. Dowling, Law Offices of Dowling and Associates, L.L.C., Fulton, Missouri.

          OPINION

         GARY W. LYNCH, J.

Page 144

         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. 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

Page 145

$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 ...

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