concurring.
I concur in the result reached by the majority, but I believe that the rationale given avoids the pivotal issue in this case. The majority hinges its holding on the impropriety of the trial court’s grant of affirmative relief to wife after she asserted her constitutional privilege against self-incrimination regarding “a subject relevant to the case”; namely, her misconduct in arranging for her husband’s murder. In this case wife’s exercise of her Fifth Amendment privilege is not material if evidence of her misconduct is not admissible, as the concurring opinion urges. In addition, wife’s refusal to answer was not prejudicial to husband because there was other substantial evidence in the record, found credible by the trial judge, that wife did attempt to have her husband murdered. If evidence of misconduct is not admissible and there was no prejudice to the opposing party, it would appear that the imposition of sanctions because of wife’s invocation of the privilege is a questionable basis for the result reached.
Section 452.315.5, RSMo (1986) provides that, “[o]n a basis of the showing made and in conformity with § 452.335 ..., the court may issue ... an order for temporary maintenance_” Section 452.335.2(7), RSMo (1986) provides that a factor to be considered is “[t]he conduct of a party seeking maintenance during the mar*571riage.”1 Thus, Missouri’s statutory law specifically provides that evidence of conduct may be admissible in a pendete lite hearing.
Berbiglia v. Berbiglia, 442 S.W.2d 949 (Mo.App.1969), referred to in the majority and concurring opinions, was decided in 1969. It held that marital misconduct was not properly considered in making awards of temporary alimony. Id. at 951. The Missouri dissolution statute became effective January 1, 1974, approximately five years after the Berbiglia opinion. The jurisprudential value of Berbiglia is therefore limited by subsequent legislative enactments. To the extent that Berbiglia expresses a view contrary to the present statutes, it should no longer be followed.
I agree with the concurring opinion of Smith, J., that “[pjendete lite proceedings should by definition be brief and should occur early in the litigation....’’ I also agree that “[tjhe potential burden on currently overworked trial courts is enormous. ...” I am confident, however, that trial judges, in the exercise of their broad discretion, can properly decide what type of conduct is a relevant factor bearing on an award of temporary maintenance, attorney fees and expenses. Section 452.315.5. Trial judges can best ascertain the quantity of evidence that should be permitted on a given issue and permit only such evidence as would be consistent with the objective of a brief motion which has as its purpose maintaining the status quo.
In the case before us, we have a situation where the trial court found, based upon properly admitted substantial evidence, that wife attempted to have her husband murdered. The trial court also found that conduct “is only one of numerous factors to be considered [pursuant to 452.335 RSMo.1986] and consideration of all other factors requires an award be made.”
I agree that conduct is only one of numerous factors in determining an award of temporary maintenance. I disagree that consideration of other relevant factors requires that an award be made. The misconduct of the wife in this case is so egregious as to outweigh all other relevant factors and therefore prohibits the affirmative relief granted by the trial court. It is wrong to require one spouse to pay temporary maintenance, attorneys fees and expenses to the other spouse who has attempted to have the one spouse murdered. The law should not be used to create a wrong. The exercise by the wife of her Fifth Amendment privilege is, in this case, irrelevant. If she had not exercised her Fifth Amendment rights and the trial court had made the same findings as to her conduct, she should still be prohibited from receiving the award given.
On that basis, I concur in the result only reached by both the majority opinion and the concurring opinion of SMITH, J.
. Section 452.335.2(9), RSMo (Supp.1988) now provides for the trial court to consider “[t]he conduct of the parties during the marriage." (emphasis added).