                                        In the
                        Missouri Court of Appeals
                                 Western District
CAROLYN KAY MARTIN,                          )
                                             )
               Appellant,                    )   WD78527
                                             )
v.                                           )   OPINION FILED: March 15, 2016
                                             )
JOHN TIMOTHY MARTIN,                         )
                                             )
              Respondent.                    )

             Appeal from the Circuit Court of Jackson County, Missouri
                       The Honorable Marco A. Roldan, Judge

 Before Division Two: Cynthia L. Martin, Presiding Judge, Mark D. Pfeiffer, Judge and
                            Karen King Mitchell, Judge


      Carolyn Kay Martin ("Wife") appeals from the trial court's judgment that

dissolved her marriage with John Timothy Martin ("Husband"), divided marital property

and marital debt, and denied her an award of maintenance. Wife challenges only the trial

court's denial of an award of maintenance. We affirm the trial court's judgment.
                               Factual and Procedural Background1

        Wife and Husband married on October 17, 1992.                           Wife filed a petition for

dissolution of marriage in March 2014. The petition asserted that "[Wife] is unable to

support herself and is in need of maintenance from [Husband]." Husband filed an answer

and cross-petition for dissolution of marriage which asserted that "neither party is in need

of maintenance" because both Husband and Wife are "able-bodied and capable of

providing for [themselves]."

        Wife testified that she did not have a full-time job for the final eight to ten years of

her marriage to Husband. During that time, Wife was a homemaker and stay-at-home

grandmother.        By the time of trial, however, Wife had found part-time permanent

employment. Wife testified that she works approximately twenty-nine hours a week at an

hourly rate of $13.50. There was evidence presented, however, that Wife worked eighty

hours during a two-week period prior to trial. Wife testified that she receives $1,265 per

month in Social Security benefits. Husband testified that he found a position for Wife

where she could work forty hours per week and earn an hourly wage of $17.50. Wife did

not pursue the opportunity because she wanted to find a job without Husband's

assistance.

        Wife filed an income and expense statement that reflected monthly expenses in the

amount of $5,261. Wife admitted at trial that her expenses were inflated. While Wife's

income and expense statement listed a monthly rent or mortgage payment in the amount

        1
          "We view the evidence and any reasonable inferences therefrom in the light most favorable to the court's
decision and disregard all contrary evidence and inferences." Edwards v. Edwards, 475 S.W.3d 218, 222 (Mo. App.
W.D. 2015).

                                                        2
of $1,200, Wife testified that she did not actually incur that expense each month because

she lives with her daughter. Wife testified that $1,200 represented an estimate of how

much her rent or mortgage payment would be if she lived on her own. Wife admitted that

although her income and expense statement indicated that she spends $400 per month on

gas and oil for her vehicle, she actually spends $150 to $200 per month. Wife admitted

that her income and expense statement inflated her actual monthly expenses for

insurance, prescription drugs, utilities, and repair costs. Finally, Wife admitted that while

her income and expense statement indicated that she spends $125 a month for college

expenses, she does not attend college and does not incur that expense.

       Husband testified that he works as the general manager of operations at Blue

Springs Harley-Davidson. According to Husband's testimony, he earns $8,666 per month

in salary and, on average, receives $2,833 in commission monthly. Husband's income

and expense statement indicated that he has monthly expenses of $6,995, which includes

payments for nearly all of the marital debt. Husband testified that, after paying his

expenses, he has $600 at most remaining each month.

       Following the hearing, the commissioner entered findings and conclusions, which

the trial court adopted as its judgment ("Judgment"). The Judgment: (1) found that Wife

is capable of working full-time; (2) found that Wife has the ability to earn approximately

$3,604 gross per month; (3) awarded Wife two pieces of income-producing property --

her individual retirement account and half of Husband's retirement account; (4) awarded a

pickup truck to Wife but assigned the truck payment to Husband; (5) concluded that Wife

inflated her monthly expenses on the income and expense statement and found that a

                                             3
closer estimate of her monthly expenses would approximate $3,000; and (6) concluded

that Wife is not entitled to maintenance because she has sufficient property, including

marital assets, to provide for her reasonable needs, and because she is able to support

herself through appropriate employment.

       Wife appeals.

                                    Standard of Review

       A trial court has broad discretion in determining whether to award maintenance.

Alberty v. Alberty, 260 S.W.3d 856, 859 (Mo. App. W.D. 2008). Thus, "[w]e review the

trial court's decision on maintenance . . . for an abuse of discretion." Shaw v. Shaw, 413

S.W.3d 332, 334-35 (Mo. App. W.D. 2013). "A trial court abuses its discretion when its

ruling is clearly against the logic of the circumstances then before the court and is so

arbitrary and unreasonable as to indicate indifference and a lack of careful judicial

consideration." Alberty, 260 S.W.3d at 860. If reasonable persons could differ as to the

propriety of the trial court's decision, then it cannot be said that the trial court abused its

discretion. Id.

                                          Analysis

       Wife argues on appeal that the trial court erred in denying her request for

maintenance. Before addressing the merits of Wife's appeal, we must first address

Husband's motion to dismiss the appeal. Sparks v. Sparks, 417 S.W.3d 269, 280-81 (Mo.

App. W.D. 2013).




                                              4
Wife's Appeal Is Not Barred

       Husband's motion to dismiss argues that Wife's acceptance of a $35,000 asset

equalization payment and Wife's acceptance of monthly truck payments constitute Wife's

acceptance of the benefits of the Judgment, foreclosing her right to appeal the Judgment.

Generally, "a party who voluntarily accepts the benefits of a judgment may not then

prosecute an appeal to reverse it." Id. at 281.

       The reason for the rule is that a party cannot proceed to enforce and have
       the benefit of such portions of a judgment as are in his favor and appeal
       from those against it--in other words, the right to proceed on a judgment
       and enjoy its fruits and the right to appeal therefrom are totally inconsistent
       positions, and the election to pursue one course must be deemed an
       abandonment of the other.

Hicks v. Hicks, 859 S.W.2d 842, 845 (Mo. App. W.D. 1993). While Husband correctly

cites to the general rule, his motion to dismiss fails to acknowledge an exception that is

applicable to this case. Sparks, 417 S.W.3d at 281.

       "[T]he general rule in regard to acquiescence in judgments should not be strictly

applied in divorce cases because of the peculiar situations of the parties and the equitable

considerations involved."    Hicks, 859 S.W.2d at 845.       Thus, we have discretion to

determine whether to apply the general rule in a given case after considering all of the

relevant circumstances. Sparks, 471 S.W.3d at 281. In making the determination, we

consider several factors, including:

       (1) the amount received was a small portion of the total judgment; (2) the
       amount accepted has effectively been conceded to be due by a husband who
       did not appeal; (3) the acceptance of the benefits was due to financial
       distress; (4) there is an absence of prejudice to the judgment debtor
       husband; and (5) the only issue on appeal is whether an award will be
       increased.

                                              5
Id.

       In support of his motion, Husband attached copies of thirteen checks. One check

was written to Wife in the amount of $35,000, the asset equalization payment required by

the Judgment. The other twelve checks were monthly truck payments to the holder of the

loan for the pickup truck awarded to Wife. Husband argues that the asset equalization

payment and truck payments represent nearly one-third of Wife's entire award,

suggesting that the amounts accepted by Wife are not insignificant.

       The payments Husband relies on involve the trial court's division of marital

property and debt. Husband has not appealed the division of marital property or debt. It

is true that the division of marital property is considered when determining whether a

spouse is entitled to maintenance pursuant to section 452.335.1.2                            However, Wife's

acceptance of marital property awarded to her is not inconsistent with her position that

she should nonetheless be entitled to an award of maintenance. Wife's claim on appeal

would not impact the division of marital property and debt but would at best increase her

award. Husband is not, therefore, prejudiced. Regardless of Wife's acceptance of the

benefits of the Judgment involving the asset equalization payment and Husband's

payment of the debt owed on the pickup truck, the issue on appeal remains the same. Did

the trial court abuse its discretion in concluding that, pursuant to section 452.335.1, Wife

is not entitled to maintenance because she neither (1) lacks sufficient property, including

marital property apportioned to her by the Judgment, to provide for her reasonable needs,

nor (2) is unable to support herself through appropriate employment?

       2
           All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.

                                                         6
        Husband's motion to dismiss is denied.

The Trial Court Did Not Abuse Its Discretion in Denying Maintenance

        Section 452.335 describes a two-step process for determining whether to award

maintenance. Section 452.335.1 requires a trial court to first decide whether a spouse is

entitled to maintenance. That statute provides:

        [T]he court may grant a maintenance order to either spouse, but only if it
        finds that the spouse seeking maintenance:

        (1)     Lacks sufficient property, including marital property apportioned to
        [her], to provide for [her] reasonable needs; and

        (2)      Is unable to support [her]self through appropriate employment . . . .

"The spouse seeking maintenance has the burden of establishing these threshold

requirements." Alberty, 260 S.W.3d at 860. Only after these threshold requirements are

proven by the spouse seeking maintenance may the trial court proceed to the second step:

determining the amount and duration of the maintenance award.3 Id.

        Here, the trial court never reached the second step because it determined that Wife

has sufficient property, including marital assets, to provide for her reasonable needs and

        3
         Section 452.335.2 provides that, in calculating the amount and duration of a maintenance award, the trial
court must consider all relevant factors, including:
         (1) The financial resources of the party seeking maintenance, including marital property
        apportioned to him, and his ability to meet his needs independently, including the extent to which
        a provision for support of a child living with the party includes a sum for that party as custodian;
        (2) The time necessary to acquire sufficient education or training to enable the party seeking
        maintenance to find appropriate employment;
        (3) The comparative earning capacity of each spouse;
        (4) The standard of living established during the marriage;
        (5) The obligations and assets, including the marital property apportioned to him and the separate
        property of each party;
        (6) The duration of the marriage;
        (7) The age, and the physical and emotional condition of the spouse seeking maintenance;
        (8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting
        those of the spouse seeking maintenance;
        (9) The conduct of the parties during the marriage; and
        (10) Any other relevant factors.

                                                         7
is able to support herself through appropriate employment. In other words, the trial court

found that Wife failed to sustain her burden to establish the threshold requirements for

receiving maintenance.

         Wife asserts that the trial court failed to afford appropriate weight to the fact that

she was a homemaker for the final eight to ten years of her marriage to Husband; that she

was seventy years old at the time of trial; that she was only working part-time at an

hourly rate of $13.50; that her wages left her unable to obtain a home of her own; and

that she was unable to afford her truck payment and insurance premiums. Wife argues

that this evidence demonstrated her entitlement to an award of maintenance.4

         While Wife accurately recounts her testimony, she fails to account for contrary

evidence which supports the trial court's Judgment. "[A] denial of maintenance will be

affirmed on appeal when evidence exists that the party seeking the award can support

herself with property or through employment." In re Marriage of Koch, 185 S.W.3d 812,

815 (Mo. App. S.D. 2006).

         Wife testified that she considers herself to be in "pretty decent health" and that she

does not have a disability that prevents her from working. Wife's paystubs demonstrated

that, in the weeks leading up to trial, Wife worked eighty hours over a two-week period.

Husband testified that he had located a full-time position for Wife that would pay $17.50

an hour, a position Wife declined only because she did not want Husband's assistance.

The trial court concluded that Wife was capable of working forty hours per week at an

         4
         Wife also argues that the lack of marital misconduct and Husband's ability to pay entitled her to
maintenance. The conduct of the parties in the marriage and the ability to pay are relevant only to the calculation of
the amount and duration of maintenance. Section 452.335.2. Thus, any inquiry into those factors would be
inappropriate unless we conclude that Wife is entitled to maintenance pursuant to section 452.335.1.

                                                          8
hourly rate of $13.50, the hourly wage she was in fact earning. The trial court thus

imputed to Wife a monthly gross income from employment in the amount of $2,340, 5

approximately $200 more than Wife reflected on her income and expense statement. "As

a general rule, a trial court may impute income to a spouse based upon what he or she

could earn using his or her best efforts to gain employment suitable to his or her

capabilities." Voinescu v. Kinkade, 270 S.W.3d 482, 489 (Mo. App. W.D. 2008). The

trial court's decision to impute a modest amount of additional income to Wife is

supported by the evidence.

        In addition, Wife was awarded a significant portion of the marital assets, her

individual retirement account, and half of Husband's retirement account. Because of her

age, Wife is required to take a yearly minimum distribution from her individual

retirement account. In addition, Wife is eligible to receive distributions from Husband's

retirement account. "While a spouse is not required to deplete or consume his or her

portion of the marital assets before being entitled to maintenance, a court must consider

whether the spouse can earn income from his or her share of the marital property."

Valentine v. Valentine, 400 S.W.3d 14, 21 (Mo. App. E.D. 2013). The evidence supports

the conclusion that retirement account distributions will supplement Wife's employment

income and Social Security benefits.

        The evidence also supports a conclusion that Wife's expenses were inflated on her

income and expense statement. Wife admitted that she inflated her expenses for gas and


        5
          The trial court also considered the fact that Wife's monthly income is supplemented by Social Security
benefits in the amount of $1,265 per month.

                                                         9
oil for her vehicle, college, insurance, prescription drugs, utilities, and repair costs. Wife

admitted that the $1,200 per month entry for rent or a mortgage payment is not being

incurred because she lives with her daughter. While Wife indicated on her income and

expense statement that she has a monthly truck payment of $651, the trial court assigned

that martial debt to Husband. After considering the evidence, the trial court concluded

that Wife's reasonable expenses were approximately $3,000 per month, and not $5,261 as

Wife had claimed. This conclusion is supported by the evidence.

        When comparing income to reasonable expenses, the trial court concluded that

Wife had gross monthly income of $3,6046 and access to retirement account distributions

that combined to afford Wife sufficient property to provide for her reasonable needs. The

trial court did not abuse its discretion in denying Wife maintenance.

        Wife's point on appeal is denied.

                                               Conclusion

The trial court's Judgment is affirmed.



                                                  __________________________________
                                                  Cynthia L. Martin, Judge


All concur




        6
          The sum of Wife's imputed monthly employment income of $2,340 and monthly Social Security benefit of
$1,265 is actually $3,605.

                                                     10
