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Dubrovenskiy v. Vakula

Court of Appeals of Missouri, Eastern District, Third Division

March 12, 2019

DMITRIY DUBROVENSKIY, Petitioner/Appellant,
YELENA VAKULA, Respondent/Respondent.

          Appeal from the Circuit Court of St. Louis County Honorable Jason D. Dodson

          SHERRI B. SULLIVAN, P.J.


         Dimitriy Dubrovenskiy (Husband) appeals from the trial court's Amended Judgment Pendente Lite (JPL) ordering him to pay temporary maintenance to Yelena Vakula (Wife). The JPL also orders a temporary custody arrangement for their minor child (Child). We affirm.

         Facts and Background

         Husband and Wife married on August 14, 2013, and have one child together, who was approximately three years old at the time of the JPL hearing. The parties separated on June 10, 2017. At the time of their separation, Wife left the marital home and moved in with her parents. Husband continued to occupy the marital home.

         A Petition for Dissolution of Marriage was filed by Husband on June 23, 2017. Husband also filed a Motion for Child Custody, and Other Orders, Pendente Lite on that same day. Wife filed an answer and counter-petition to Husband's motions, seeking temporary custody of Child, temporary maintenance, temporary child support, and attorney's fees from Husband.

         A hearing was held on Husband's and Wife's respective motions. Wife testified to several incidents of domestic violence by Husband, including his kicking, choking, and headbutting her. She also expressed concern for Child's welfare while with Husband, testifying she had observed Child return from Husband's care with bruises, fever, nausea, and diaper rash. Wife also testified about her financial and living situations since leaving Husband. She stated she had moved back in with her parents because she could not afford other accommodations. She also testified she was not working at the time of the hearing, but was seeking employment.

         Husband testified about his living and financial situations as well. He testified he continued to live in the marital home where he pays rent and utilities. He testified Wife had restricted his contact with Child since their separation. He also expressed concern over Child's well-being, noting Child was, in his view, not sufficiently progressing with his verbal skills. Husband suggested he believed this was due to shortcomings in Wife's parenting. Both parties submitted proposed parenting schedules.

         The court-appointed guardian ad litem (GAL) testified on the matter of child custody at the hearing. He noted the allegations of child abuse by Husband were unsubstantiated by investigators, and that Husband appeared diligent in his care and concern for Child. He also presented the Court with a recommendation for a temporary custody schedule, which included increased custody time for Husband.

         The trial court entered a Judgment Pendente Lite. Husband filed a Motion to Reconsider the trial court's first Judgment Pendente Lite. The trial court denied Husband's motion, and entered the JPL from which Husband now appeals.

         The JPL contains the trial court's findings of fact and conclusions of law. The trial court found Wife's testimony of Husband's domestic violence toward her credible, but did not find sufficient evidence of his abuse of Child. The trial court found Wife's restriction of Husband's contact with Child was done in good faith, out of concern for Husband's history of domestic violence. The trial court chose to adopt the schedule proposed by the GAL; the trial court noted it expected compliance with the custody schedule from Wife.

         The trial court also made findings related to the temporary maintenance requested by Wife. Although Wife was unemployed at the time of the hearing, based on her experience and past employment the trial court imputed to her a gross monthly income of $2, 063. Husband's gross monthly income was found to be $6, 438. After evaluating the evidence, including the standard of living during the marriage, the trial court found Wife's reasonable monthly expenses to be $2, 593. After subtracting taxes and expenses from her imputed income, this left her with a deficit of $972.51.

         Husband was estimated to have monthly expenses of $2, 285, similar to Wife's. The trial court also found Husband had a higher earning capacity than Wife. The trial court again noted it found Wife's allegations of domestic violence against Husband credible. Finally, the trial court stated that although the marriage was brief, and it was doubtful an order for maintenance would accompany a final judgment, there was no expectation Wife would become self-supporting during the pendency of the case. After having considered all relevant statutory factors, the trial court awarded Wife temporary maintenance of $900 ...

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