dissenting.
I respectfully dissent.
At the time of the dissolution appellant wife was the custodial parent of three children, ages sixteen, thirteen and eleven. By the decree she remains the custodial parent. When the five-year limited maintenance expires she will be the custodial parent of two children, ages eighteen and sixteen. By reason of the fact that there was no evidence to support a finding that at the end of that period the condition or circumstances of the children still in her custody will make it appropriate that she seek employment outside of the home I would affirm but modify the decree to change or remove the limitation on the duration of maintenance.
Appellant married at age seventeen and has not worked for wages since age nineteen. She has been a full time homemaker and mother for seventeen continuous years. During that period her work for wages was discouraged by her husband. Further, his present earnings make such outside employment unnecessary.
I agree that the evidence would support a finding at the time of the dissolution that appellant could become self-supporting within the period of limited maintenance. She is in good health, well educated and possesses a license to be a real estate sales person. This finding would be decisive in affirming limited maintenance only if her primary duties as mother were concluded or the circumstances and conditions of the children would permit her to seek and hold employment sufficient to support herself within the period of limited maintenance. If on the other hand, the award of limited maintenance is affirmed and the conditions and circumstances of either or both of the children make it inappropriate for her to seek employment then at the expiration of the five-year period she will be foreclosed from maintenance. Doerflinger v. Doerflinger, 646 S.W.2d 798, 800-801 (Mo. banc 1983). An increase in child support would not suffice as a substitute for maintenance because child support is for that purpose and not for the support of a custodial parent who is no longer entitled to maintenance. See § 452.340 RSMo 1978. Section 452.335 RSMo 1978 provides that the court may grant a maintenance order but only if it finds that the spouse seeking maintenance “(1) Lacks sufficient property ... to provide for his reasonable needs; and (2) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.” § 452.335.1(1) & (2) RSMo 1978. (emphasis added)
These sections provide a dual test, one of which recognizes the distinction between a spouse with or without custodial responsibilities. This distinction was recognized by this court in In re Marriage of Neubern, *771535 S.W.2d 499, 503 (Mo.App.1976). Also see Wachter v. Wachter, 645 S.W.2d 111, 113 (Mo.App.1982); Bell v. Bell, 641 S.W.2d 854, 855 (Mo.App.1982). Where there is no evidence to support a finding that the children’s conditions or circumstances five years hence will not require the wife to continue to serve as a full time mother I would hold that § 452.335.1(2) is an impediment to limitation of maintenance. In the present case there is no such evidence. Hence, proof that appellant wife should be required to seek employment while a custodian of children under the decree is insufficient. Absent some evidence that appellant wife will be free of her primary duties as custodial parent at the end of the five year period the grant of limited maintenance is based on speculation and must fail. See In re Marriage of Powers, 527 S.W.2d 949, 955 (Mo.App.1975). The policy of encouraging self-sufficiency recognized in Steinmeyer v. Steinmeyer, 669 S.W.2d 65, 67 (Mo.App.1984) should be balanced by the primary responsibility and duty of a custodial parent. Otherwise § 452.335.1(2) would be given less than its full meaning.
I believe the majority view would be correct only if there were no children or if the issue of maintenance was held open until appellant wife was no longer a custodial parent. Limited maintenance for a period of ten years or until all of the children were emancipated, whichever occurred first, would satisfy the requirement. Although difficult, such proof is not impossible. For example the evidence in a case may support a finding that the children involved in a dissolution case have sufficient assets to meet any needs which they have or which may develop before emancipation; or, there may be evidence that the presently available assets owned by or ordered transferred to the custodial spouse will support such spouse through the un-emancipated years of the children.
I would affirm the decree of dissolution but modify the period of limited maintenance from a set term of five years to a period to end when the last of the children is emancipated or the limitation on maintenance stricken.