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In Re the Marriage of Lindenfelser , 596 S.W.2d 71 ( 1980 )


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  • 596 S.W.2d 71 (1980)

    In re the MARRIAGE of Marian Josephine LINDENFELSER and Dale Arnold Lindenfelser, Marian Josephine Lindenfelser, Petitioner-Respondent, and
    Dale Arnold Lindenfelser, Respondent-Appellant.

    No. 11218.

    Missouri Court of Appeals, Southern District, Division Four.

    March 4, 1980.

    *72 Richard J. Collins, Webb City, for petitioner-respondent.

    James R. Spradling, Carthage, for respondent-appellant.

    PREWITT, Judge.

    Husband appeals from a decree dissolving his marriage of thirty years. He complains of the award to his wife of 55% of the proceeds from the sale of two farms in addition to awarding her other assets. He also claims her award of $100 per month maintenance was error, contending that he is unable to work and that she received sufficient marital property to provide for her needs.

    Our examination of the record convinces us that no error of law appears and that the judgment is supported by substantial evidence and is not against the weight of the evidence. An opinion would have no precedential value and we affirm by memorandum opinion in compliance with Rule 84.16(b), V.A.M.R.

    The trial court has discretion in the division of marital property. A just division does not have to be equal. This is particularly true where one party has engaged in misconduct. Arp v. Arp, 572 S.W.2d 232, 235 (Mo.App.1978). ` Under §§ 452.330, RSMo 1978, and the evidence, the division was within the court's discretion.

    There was sufficient evidence of the elements set forth in § 452.335, RSMo 1978 for the court to grant the maintenance awarded. The parties' abilities to work were in dispute. Where there is conflicting testimony, deference is given to the trial court's conclusions. In re Marriage of Reagan, 589 S.W.2d 118, 120 (Mo.App. 1979). A wife should not have to consume her part of the marital property for living expenses before she would be entitled to maintenance. In re Marriage of Powers, 527 S.W.2d 949, 955 (Mo.App.1975).

    The judgment is affirmed.

    All concur, except FLANIGAN, C. J., recused.

    NORWIN D. HOUSER, Senior Judge, concurs.