           In the Missouri Court of Appeals
                   Eastern District
                                        DIVISION ONE

AUDREY JANE GRIFFITH,                            )   No. ED106363
                                                 )
       Respondent,                               )   Appeal from the Circuit Court
                                                 )   of St. Louis County
vs.                                              )
                                                 )   Honorable John N. Borbonus
ROBERT DANIEL GRIFFITH,                          )
                                                 )
       Appellant.                                )   FILED: January 29, 2019

       Robert Griffith (“Appellant”) appeals from the court order awarding Audrey Griffith

(“Respondent”) temporary maintenance in the amount of $8,000 per month, commencing

December 1, 2017. Respondent filed her Petition for Dissolution of Marriage along with her

Motion for Temporary Maintenance, Attorney’s Fees, and Costs Pendente Lite and Affidavit in

Support on August 2, 2017, and the Circuit Court of St. Louis County entered its order on

November 16, 2017. We affirm in part and reverse and remand in part.

                                        I. Background

       Appellant and Respondent married in 2006, a few years after Appellant started his

residential construction company R.D. Griffith Company d/b/a Kirkwood Webster Construction

(“the Company”), a single member limited liability company. Prior to the marriage, Respondent

was Appellant’s secretary, but after their marriage she began doing design work for the

Company. Respondent had two children from a prior marriage, a son (“Son”) and a daughter

(“Daughter”), but there were no children born of the parties’ marriage.
       Starting in 2012, and continuing through the beginning of 2016, the parties maintained a

primary residence in St. Louis County and a second home in Burbank, California. The parties

acquired the California residence to help Respondent’s son pursue his interest in acting. As

Respondent testified “[Son] . . . was successful here. And we wanted to take it to the next level. .

. .” Then, in 2015, Daughter moved to California to pursue a career in modeling. Respondent

testified that she continued working for the Company while in California. Throughout the time

the parties maintained the two residences, Appellant covered all costs necessary for Respondent

and her children to live in California as well as to commute between there and Missouri.

       In 2016, the parties sold the California residence, and Respondent moved back to

Missouri after Appellant told her that he could no longer afford to maintain the two residences

and provide for her expenses in California. On August 2, 2017, Respondent filed her Petition for

Dissolution of Marriage along with her motion for an Award of Temporary Maintenance and an

Award of Attorney’s Fees and Court Costs Pendente Lite. Respondent’s original motion

requested $15,000 per month in temporary maintenance, and her amended motion reduced that

sum to $12,600 per month. Both parties filed Statements of Income and Expenses, with

Respondent claiming monthly expenses of $9,389.23 and Appellant claiming monthly expenses

of $11,536.49. Respondent’s employment at the Company ended when she filed her petition for

dissolution.

       After filing for dissolution, Respondent moved back to Burbank so that Daughter could

continue her modeling career. Son remained with Appellant. Respondent returned for the

hearing on her motion on November 15, 2017, where she testified to total expenses in excess of

$42,000 since moving back to California, including a damage deposit of $5,800, two months’

rent in the amount of $4,800, attorney’s fees in the amount of $15,000, and a mover’s charge of

more than $6,000. Appellant testified to his monthly expenses of more than $11,000. On


                                                 2
November 16, 2017, the trial court issued its judgment ordering Appellant to pay temporary

maintenance in the amount of $8,000 per month to Respondent, commencing December 1, 2017.

Neither party requested findings of fact, and the court made no explicit findings. Appellant then

filed a motion for a new trial, which the court denied, leading to this appeal.

                                          II. Discussion

       Appellant asserts two points on appeal, arguing it was an abuse of discretion for the trial

court to award Respondent $8,000 per month in temporary maintenance. Both points allege the

trial court’s award was not supported by substantial evidence and was a result of a

misapplication of law. First, Appellant argues the trial court erred in ordering him to pay

Respondent this sum because she did not establish that her reasonable needs exceed her ability to

earn income by that amount of maintenance, but instead sought an amount that approximated

what she considered to be her standard of living in California, by scant evidence, without

consideration of her ability to earn income, as demonstrated by her last two years of tax returns

totaling more than $50,000 in income.

       Second, Appellant argues the trial court erred in ordering him to pay Respondent $8,000

per month in temporary maintenance because, with monthly income slightly in excess of $8,000,

he does not have the ability to pay that amount of maintenance to Respondent and meet his

reasonable needs of more than $11,000 dollars per month, including $2,000 in credit card

payments.

A. Standard of Review

       We review a trial court’s order of temporary maintenance for an abuse of discretion and

will reverse if the award is against the weight of the evidence, the court erroneously declares the

law, or the court erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc

1976). The court has broader discretion when awarding temporary maintenance than at the


                                                  3
dissolution hearing, and appellate courts are “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.” In re Marriage of Gardner, 320 S.W.3d 230, 235 (Mo. App. E.D.

2010). We presume the court considered all the evidence, and we view the evidence “in the light

most favorable to the trial court’s judgment.” Workman v. Workman, 293 S.W.3d 89, 98 (Mo.

App. E.D. 2009). However, awards of maintenance must be made with a “reasonable tolerance

of proof,” and an appellate court may disturb an award where it is “patently unwarranted or is

wholly beyond the means of the spouse ordered to pay.” Ethridge v. Ethridge, 239 S.W.3d 676,

683 (Mo. App. E.D. 2007); In re Marriage of Buchholz, 139 S.W.3d 607, 608 (Mo. App. E.D.

2004). The party challenging the maintenance award bears the burden of showing such an award

was an abuse of discretion. In re Marriage of Neu, 167 S.W.3d 791, 795 (Mo. App. E.D. 2005).

           Where, as in this case, the trial court made no specific findings of fact and neither party

requested such findings, we interpret the court’s findings on factual issues as having been found

in accordance with the trial court’s judgment. Ivie v. Smith, 439 S.W.3d 189, 200 (Mo. banc

2014); Rule 73.01(c). 1

B. Analysis

                          Point 1: Respondent‘s Need for Temporary Maintenance

           Appellant asserts in his first point that the trial court abused its discretion in awarding

Respondent $8,000 per month in temporary maintenance because she has not shown a need for

that amount. Appellant argues Respondent instead sought an amount that approximated what she

considered to be her standard of living in California, by scant evidence, without consideration of

her ability to earn income, as demonstrated by her last two years of tax returns totaling more than

$50,000 in income. We disagree, and Affirm as to Appellant’s first point.


1
    All further references to Rules are to Missouri Supreme Court Rules (2017).
                                                           4
         Section 452.335.1 RSMo. 2 states “[i]n a proceeding for . . . maintenance . . . the court

may grant a maintenance order to either spouse, but only if it finds that the spouse seeking

maintenance: (1) [l]acks sufficient property . . . to provide for his reasonable needs; and (2) [i]s

unable to support himself through appropriate employment. . . .” Section 452.335.1(1)-(2).

Thus, a party seeking maintenance must show need, and it is an abuse of the court’s discretion to

award maintenance to a spouse who has not shown that requisite need. Roberts v. Roberts, 810

S.W.2d 65, 66 (Mo. App. W.D. 1990). Additionally, “in a proceeding for dissolution of

marriage . . . either party may move for temporary maintenance,” and such a motion “shall be

accompanied by an affidavit setting forth the factual basis for the motion and the amounts

requested.” Section 452.315.1. The factors to be considered in awarding temporary

maintenance are the same as those to be considered in making a permanent award. Cunningham

v. Cunningham, 673 S.W.2d 478, 480 (Mo. App. E.D. 1984); see also Section 452.335.2(4) (one

of the factors to be considered is the standard of living established during the marriage). Further,

in reviewing the award we note the purpose of maintenance is to “bridge the gap between the

reasonable needs of a spouse and that spouse’s income.” Dowell v. Dowell, 203 S.W.3d 271,

285 (Mo. App. W.D. 2006).

         We find there was substantial evidence to support the trial court’s implicit finding 3 that

Respondent showed a need for maintenance, and that she was not yet able to support herself

through appropriate employment. Respondent’s Amended Statement of Income and Expenses

(“Amended Statement”) showed monthly rent in the amount of $2,400, amounting to $4,800 for

the two months living in California. Additionally, Respondent showed utilities in the amount of



2
  All further references to section 452.335 are to RSMo 2000, which is the latest version of the statute.
3
  While neither party requested findings of fact, and the trial court did not make any explicit findings, it is implicit in
the fact that the court awarded Respondent temporary maintenance that the court found Respondent showed a need.
See Ivie, 439 S.W.3d at 200; Rule 73.01(c).

                                                            5
$809.74. Respondent also showed monthly car expenses of $1,398 for costs associated with oil,

maintenance, taxes, and licenses associated with the vehicle. Respondent’s living expenses

amounted to nearly $3,000 for items such as food, clothing, laundry, and beauty shop charges.

       Appellant argues Respondent relied on the needs of her children as a reason for her

“exorbitant request.” It is true that neither of Respondent’s children is to be considered in

awarding maintenance. See Arndt v. Arndt, 519 S.W.3d 890, 902 (Mo. App. E.D. 2017) (finding

Missouri law is clear that maintenance is limited to the needs of the spouse receiving

maintenance). However, this argument ignores Respondent’s testimony at the hearing that she

separated out the expenses for Daughter from her Amended Statement. Additionally, Son was

living with Appellant at the time Respondent and Daughter moved back to California, so he

could not have factored into her expenses there. The trial court did not abuse its discretion in

awarding maintenance in this regard.

       Additionally, Appellant relies on Carpenter v. Carpenter, in an attempt to support his

assertions that Respondent failed to show a need for maintenance and that she was unable to

support herself through appropriate employment. 935 S.W.2d 89 (Mo. App. E.D. 1996). In

Carpenter, the husband requested maintenance but failed to monetize the expenses he claimed

and failed to offer a statement of income and expenses. Id. at 91-92. For these reasons, and

because the husband was living rent free with his sister at the time of trial, this Court found the

husband failed to show a need for maintenance. Id. We further found that even if the husband

had proved his monthly expenses, he did not demonstrate that he could not support himself

through reasonable employment because, inter alia, (1) the evidence showed the husband

voluntarily failed to seek employment; and (2) the trial court found the husband’s testimony that

he could not seek employment because he was disabled was not credible. Id. at 90-93.




                                                  6
       In contrast, Respondent in this case submitted a detailed Amended Statement, separating

out Daughter’s expenses from her own and including a monetary value on every expense.

Respondent was also spending more than $2,000 per month on rent. Further, the hearing on

Respondent’s motion for temporary maintenance was heard only a few months after she filed her

petition for dissolution of marriage, during which time she had moved to California and had to

set up her household there. Respondent has a high school education, and her filing of the

petition for dissolution ended her stable employment at the Company. Accordingly, the

circumstances of this case are distinguishable from Carpenter, and Appellant’s reliance is

misplaced.

       Based on the foregoing, we find no abuse of discretion in the trial court’s implicit finding

that Respondent showed she could not yet provide for her needs through appropriate

employment. Moreover, we presume the court considered Respondent’s tax returns in rendering

its decision. See Hosack v. Hosack, 973 S.W.2d 863, 868 (Mo. App. W.D. 1998) (when no

specific factual findings are made or requested, we presume the trial court considered all the

evidence in light of the relevant statutory factors). Therefore, we find the trial court did not

abuse its discretion in awarding Respondent temporary maintenance based on Respondent’s

needs and inability to support herself through appropriate employment. Point one is denied.

                               Point 2: Appellant’s Inability to Pay

       Appellant asserts in his second point on appeal that the trial court abused its discretion in

awarding Respondent $8,000 per month in temporary maintenance, because he is unable to pay

that amount and meet his reasonable needs of more than $11,000 per month, which includes

$2,000 in credit card payments. We agree, and Reverse as to Appellant’s second point.

       Section 452.335.2 provides that the maintenance order “shall be in such amounts and for

such periods of time as the court deems just, and after considering all relevant factors including .


                                                  7
. . [t]he ability of the spouse from whom maintenance is sought to meet his needs while meeting

those of the spouse seeking maintenance. . . .” Section 452.335.2(8). In determining the amount

of the award, the trial court must “balance the reasonable needs of the spouse seeking

maintenance with the other spouse’s ability to pay.” Dowell, 203 S.W.3d at 285 (emphasis

added); see also Griffin v. Griffin, 986 S.W.2d 534, 538 (Mo. App. W.D. 1999). Section

452.335 requires the maintenance award be “just,” and does not require the court to “award

maintenance adequate to meet all the needs of the spouse even if the maintaining spouse has

sufficient resources to provide such support.” Rich v. Rich, 871 S.W.2d 618, 624 (Mo. App.

E.D. 1994). The court is required to simply review the circumstances of the parties and the

marriage to decide what may justly be required of the paying spouse. Id.

        At the hearing on Respondent’s motion, Appellant presented evidence of his annual

income and the numerous expenses he incurs every month. Appellant’s average income, after

taxes, for the three years preceding the hearing was just over $99,000. The trial court’s award

totals $96,000 per year. The evidence at the hearing showed Appellant continues to pay for

health insurance for himself, Respondent, and Respondent’s two children totaling $1,600 per

month. Appellant pays the car insurance on his vehicle, as well as Respondent’s, for a total of

$975 per month. Appellant has his own utility costs of more than $1,500 per month 4 and vehicle

costs of nearly $800 per month. Appellant also has living expenses of $2,415 for food, clothing,

and other similar items. In addition, Appellant pays $2,000 per month on the $50,000 in credit

card debt which arose from the costs associated with Respondent’s time in California with Son

and Daughter. Appellant testified at length to his struggles trying to keep up with business

expenses and Respondent’s expenses in California, which ultimately resulted in him refusing to




4
 The breakdown of Appellant’s Utilities costs is as follows: $220.47 for Gas; $460.87 for Water, Trash, and
Electricity; $592.41 for Cell phones for four people; and $281.06 for Satellite TV and Wifi.
                                                        8
pay anything else and her returning to Missouri. It is also worth noting that after Respondent

filed her petition for dissolution and moved to California with Daughter, Son continued to live

with Appellant.

       Instead of refuting this evidence of Appellant’s income and expenses, Respondent instead

argues Appellant uses the business to pay for personal costs, has numerous rental properties

unencumbered by debt, and is currently listing one of the Company’s homes for more than

$1,000,000. But Appellant testified at the hearing that, while he does put some personal

expenses on his business card, he reconciles those personal expenses when it “comes tax time.”

As to the rental properties, we find it important to note that when Respondent, after filing her

petition for dissolution, withdrew $23,000 from the parties’ Commerce Bank account, she was

taking from the account Appellant used to cover the costs associated with the Company’s rental

properties. This left nothing to pay real estate taxes and similar expenses for those properties,

and resulted in a bounced check of $4,000. Additionally, Respondent’s attempt to justify her

maintenance award by pointing to one of the Company’s homes Appellant has listed for over

$1,000,000 is further evidence of Appellant’s inability to afford the amount of temporary

maintenance awarded. Her testimony that “we always get asking price,” is vague at best.

       Additionally, Respondent’s argument fails because it thwarts “the conceptual emphasis

on marriage as a partnership” underpinning Section 452.335. Weiss v. Weiss, 702 S.W.2d 948,

956 (Mo. App. W.D. 1986) (“the conceptual emphasis on marriage as a partnership underpinning

[section] 452.335 [ ] would be thwarted if the ability of the husband to pay was exclusively

seized upon to justify an otherwise excessive and unwarranted maintenance award.”). As this

Court has previously found, just because a husband has the means to provide a greater portion of

the wife’s needs does not mean that he must. Raines v. Raines, 583 S.W.2d 564, 567 (Mo. App.

E.D. 1979). Further, the same conceptual emphasis is thwarted if a spouse is required to pay


                                                 9
maintenance in an amount greater than his ability to meet both his needs and those of the spouse

seeking maintenance. Weiss, 702 S.W.2d at 956; see also Thomas v. Thomas, 76 S.W.3d 295,

302 (Mo. App. W.D. 2002) (finding a maintenance award should not exceed the spouse paying

maintenance’s capacity to provide). This award of $8,000 per month exceeds Appellant’s

capacity to provide, and the record contains no evidence to rebut the reasonable conclusion that

the amount, in relationship to Appellant’s total income and essential needs, will deprive him of

the ability to satisfy those needs. See Dowell, 203 S.W.3d at 285; Griffin, 986 S.W.2d at 538.

       Respondent attempts to point this Court to the broad discretion granted to trial courts in

awarding temporary maintenance, and the fact that appellate courts are extremely cautious in

disturbing such awards. See, e.g., Gardner, 320 S.W.3d at 235. However, we will disturb such

an award when it is patently unwarranted or is wholly beyond the means of the spouse paying

maintenance. See In re Marriage of Buchholz, 139 S.W.3d at 608. Even viewing the evidence in

the light most favorable to the judgment, we find the trial court’s award of $8,000 per month in

temporary maintenance was not supported by substantial evidence, and was thus an abuse of

discretion. Requiring Appellant to pay such an amount would completely deprive him of the

ability to also provide for his reasonable needs of more than $11,000 per month. Point two is

granted.

                                         III. Conclusion

       The trial court's judgment is affirmed in part, reversed in part, and remanded for the trial

court to reevaluate the temporary maintenance award in a manner consistent with this opinion.




                                              __________________________________
                                              ROY L. RICHTER, Judge
Robert M. Clayton III, J., concurs.
Angela T. Quigless, J., concurs.
                                                10
