                               Missouri Court of Appeals
                                         Southern District
                                             Division Two


In re the Marriage of Lavada Fay Otis           )
and Russell James Otis                          )
                                                )
LAVADA FAY OTIS,                                )
                                                )
        Petitioner-Respondent,                  )
                                                )
vs.                                             )       No. SD33453
                                                )
RUSSELL JAMES OTIS,                             )       Filed July 14, 2015
                                                )
        Respondent-Appellant.                   )

                APPEAL FROM THE CIRCUIT COURT OF MARIES COUNTY

                       Honorable Kerry G. Rowden, Associate Circuit Judge

AFFIRMED AS MODIFIED

        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.




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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 $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 spouse who pays, this court will not interfere with the circuit
       court’s award of maintenance.

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Burnett v. Burnett, 18 S.W.3d 27, 29 (Mo.App. 2000) (internal citations omitted). The trial

court has similarly broad discretion with respect to awards of attorney’s fees. Manning v.

Manning, 292 S.W.3d 459, 462 (Mo.App. 2009). We therefore presume correct the trial court’s

decision. Id. “[I]f an appellate court believes the trial court abused its discretion, it is obligated

to enter the judgment the trial court should have entered.” Alles v. Alles, 916 S.W.2d 353, 355

(Mo.App. 1996); see also Rule 84.14. 1

           While Husband’s second point challenges the trial court’s nonmodifiable designation of

the maintenance award as an abuse of discretion, neither his first point nor his third point assert

any legal reason for trial error cognizable within our standard of review. Rather, in both of those

points, Husband asserts that the trial court failed to consider certain factors related to the award

of maintenance and attorney fees, respectively, supported by argument premised upon the

omission of any findings of fact in the trial court’s judgment related to those alleged

unconsidered factors. We address those points together and then address Husband’s second

point.

                                                     Discussion

             Points I and III: No Error in Failure to Make Unrequested Findings of Fact

           Husband’s first point contends that the trial court erred in awarding maintenance because

it “failed to examine the threshold requirements and all relevant factors of section 452.335.” 2

Husband’s argument goes on to detail numerous alleged shortcomings in the trial court’s

judgment premised upon the lack of any factual findings in the judgment addressing these

statutory factors.



1
    Rule references are to Missouri Court Rules (2015).
2
    Statutory references are to RSMo 2000.

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        Similarly, in his third point, Husband contends that the trial court erred in awarding Wife

attorney’s fees because the court “failed to consider Husband’s ability to pay them and the

resources of each party, in that Wife had already paid her attorney in full using a marital asset,

therefore, the award of attorney’s fees to Wife provides her with a windfall.” Section 452.355

provides that attorney’s fees may be warranted “from time to time after considering all relevant

factors including the financial resources of both parties, the merits of the case and the actions of

the parties during the pendency of the action[.]” Husband argues that the trial court failed to

perform a meaningful analysis of the above factors. Once again, Husband premises his claim of

error for failing to consider certain evidence upon the omission of related findings of fact in the

trial court’s judgment.

        Both of Husband’s points fail because a judgment is not deficient because the trial court

fails to announce that it has arrived at its decision “in accordance with the requisite statutory

factors.” Schroeder v. Schroeder, 924 S.W.2d 22, 28 (Mo.App. 1996). “In the absence of a

specific request by counsel, the factors need not be the subject of findings of fact or conclusions

of law.” P.L.K. v. R.J.K., 682 S.W.2d 486, 489 (Mo.App. 1984); see also Johnson v. Johnson,

671 S.W.2d 426, 427-28 (Mo.App. 1984). Husband did not request the trial court to make

findings of fact on any issues before the introduction of evidence at trial as required by Rule

73.01(c). “While a party may request that the trial court include specific findings in its

judgment, pursuant to Rule 73.01(c), where he does not do so prior to the introduction of

evidence, the trial court is under no obligation to specifically identify the facts it utilized in its

determinations.” In re Marriage of Geske, 421 S.W.3d 490, 497 (Mo.App. 2013). Where a trial

court is not obligated to make specific findings of fact in its judgment, the omission of such




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findings provides no logical basis upon which to premise trial court error. Husband’s first and

third points are denied.

    Point II: Designating Maintenance Award as Nonmodifiable was an Abuse of Discretion

        Husband’s second point argues that the trial court erred in awarding Wife nonmodifiable

maintenance of an unlimited duration 3 because it is speculative as to Wife’s future needs and

Husband’s future ability to pay. Although trial courts have broad discretion with respect to

awards of maintenance, “[section 452.335] does not bestow unfettered discretion on the trial

court.” In re Marriage of Lawry, 883 S.W.2d 84, 90 (Mo.App. 1994). “[A] maintenance order

providing that it is ‘non-modifiable’ must be justified by the facts and circumstances of that

particular case.” Id. “Where future events which may be pertinent to the issue of maintenance

are uncertain, such an award should be modifiable.” Id.

        In In re Marriage of Michel, the court considered a nonmodifiable maintenance

provision and noted that because one of the parties to divorce “testified about the current status

of her health, but failed to include any medical records or expert testimony regarding her future

health situation,” the record was devoid “of any evidence regarding what her future health status

might be or her ability to be employed in the future.” 142 S.W.3d 912, 926 (Mo.App. 2004).

For this reason, among others, the appellate court reversed the nonmodifiable designation in the

judgment. Id.

        Similarly here, Wife’s attorney asked, “And do you have any opportunities for

employment at this time?” and Wife responded, “At this time, because of health issues, no, I do

not.” (Emphasis added). Although the trial court could believe from this testimony that Wife

was not employable at the time of trial due to her health issues or for a reasonable period of time

3
 Husband does not argue that the trial court erred in awarding maintenance of an unlimited duration. Rather, he
argues that, based upon the evidence before the trial court, it erred in designating such maintenance as
nonmodifiable.

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thereafter, Wife proffered no evidence concerning the nature of her health issues and whether

they would continue such that she would be unable to work or earn any other income for the rest

of her life. Similarly, there is no evidence in the record that Wife’s financial needs will not

change during the rest of her life. In these respects then, there is no substantial evidence in the

record supporting that Wife’s future financial circumstances will not change over the course of

the rest of her life, which would have been necessary to justify designating the maintenance

award as nonmodifiable.

       Husband also argues that the designation of the maintenance award as nonmodifiable is

unjustified because it fails to consider potential changes in Husband’s future ability to pay. By

the terms of the judgment, Husband’s maintenance obligation is fixed regardless of any change

in his future ability to pay that maintenance. There is no substantial evidence in the record,

however, that supports that Husband’s income and expenses will not change in the future so as to

have no impact upon his future ability to pay the maintenance award. Any inference or

conclusion otherwise is simply speculation that is not conducive to an award of nonmodifiable

maintenance. See e.g., Boone v. Boone, 637 S.W.2d 249, 250 (Mo.App. 1982) (A couple’s

competing arguments concerning their declining health and future retirement was “too

speculative” to find trial court error at present and should be addressed factually with a motion to

modify if and when they develop.).

       Based upon the record before the trial court, there was no substantial evidence as to the

likely stability of the parties’ future financial circumstances which would support designating the

maintenance award as nonmodifiable. Therefore, such a designation was an abuse of the trial

court’s discretion. Husband’s second point is granted. Therefore, as directed by Rule 84.14, we

modify the trial court’s judgment to designate the maintenance award as modifiable.



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                                              Decision

       The trial court’s judgment is modified to reflect that the maintenance award is designated

as modifiable, but is affirmed in all other respects.



GARY W. LYNCH, J. – Opinion author

MARY W. SHEFFIELD, P.J. – concurs

NANCY STEFFEN RAHMEYER, J. – concurs




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