Court of Appeals of Missouri, Southern District, Second Division
In re the Marriage of Lavada Fay Otis and Russell James Otis LAVADA FAY OTIS, Petitioner-Respondent,
RUSSELL JAMES OTIS, Respondent-Appellant
FROM THE CIRCUIT COURT OF MARIES COUNTY. Honorable Kerry G.
Rowden, Associate Circuit Judge.
Appellant: Kathleen T. McCarthy, Law Offices of Kathleen T.
McCarthy, L.L.C., St. Louis, Missouri.
Respondent: James C. Dowling, Law Offices of Dowling and
Associates, L.L.C., Fulton, Missouri.
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.
and Procedural Background
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
$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
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.
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