Butts v. Butts

906 S.W.2d 859, 1995 Mo. App. LEXIS 1407, 1995 WL 464790
CourtMissouri Court of Appeals
DecidedAugust 3, 1995
Docket19563
StatusPublished
Cited by16 cases

This text of 906 S.W.2d 859 (Butts v. Butts) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Butts v. Butts, 906 S.W.2d 859, 1995 Mo. App. LEXIS 1407, 1995 WL 464790 (Mo. Ct. App. 1995).

Opinions

GARRISON, Presiding Judge.

This is an appeal by Kenneth Butts (Appellant) from the denial of his motion to modify an award of periodic maintenance. Respondent was awarded $700 per month when their twenty-year marriage was dissolved on February 27,1990. Appellant filed the instant motion to modify on April 19, 1993 seeking to terminate or decrease that award. The trial court heard the motion on April 5, 1994 and denied it at the close of Appellant’s evidence.

On this appeal, Appellant contends that the trial court erred in not decreasing or terminating the maintenance award because (1) Appellant subsequently remarried and had a child; (2) Respondent is cohabiting with another man in a relationship which is permanent and a substitute for marriage; and (3) Appellant’s earning capacity has decreased because of back injuries which limit the type of work he can perform. We affirm.

Appellate review of a ruling on a motion to modify is pursuant to Rule 73.01(c) and is limited to a determination of whether it is supported by substantial evidence, whether it is against the weight of the evidence, or whether it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Vance v. Vance, 852 S.W.2d 191, 192 (Mo.App.S.D.1993). Due regard is given to the trial court’s determination of the credibility of witnesses. Id. “The trial judge is in a better position than this court to determine the credibility of the parties and witnesses, their sincerity, character and other trial intangibles which may not be shown by the record.” Id. at 192-193. Also, the trial court may believe or disbelieve all, part, or none of the testimony of any witness. Willard v. Doyle, 612 S.W.2d 884, 888 (Mo.App.S.D.1981). We accept, therefore, as true the evidence and inferences therefrom that are favorable to the trial court’s judgment and disregard all contrary evidence. Stein v. Stein, 789 S.W.2d 87, 92 (Mo.App.E.D.1990). An appellate court will defer to the trial court even if the evidence could support a different conclusion. Bradley v. Bradley, 880 S.W.2d 376, 379 (Mo.App.W.D.1994).

Under § 452.370.1, RSMol994, a modification of maintenance requires a show-[862]*862tog of changed circumstances so substantial and continuing as to make the terms of the dissolution decree concerning maintenance unreasonable. Fulp v. Fulp, 808 S.W.2d 421, 423 (Mo.App.W.D.1991). The statutory standard for modification is designed to be strict so as to discourage recurrent and insubstantial motions for modification. Id. The burden of proving substantial and continuing change rests with the moving party. Id.

In his first point, Appellant contends that the trial court’s judgment is against the weight of the evidence because several factors, including Appellant’s subsequent remarriage and birth of a child, justify a decrease or termination of the maintenance award.

In the instant ease there was evidence that Appellant remarried on August 26, 1992, and a child was born to him and his new wife on June 8,1993. Remarriage alone is not a sufficient ground for decreasing maintenance, but it may be considered as a factor if children are born of that marriage. Farnsworth v. Farnsworth, 553 S.W.2d 485, 486 (Mo.App.E.D.1977); Markkam v. Markham, 506 S.W.2d 84, 86 (Mo.App.E.D.1974); Clisham v. Clisham, 485 S.W.2d 660, 665 (Mo.App.E.D.1972). The legitimate expenses incurred by the divorced husband by reason of the birth of a child to his subsequent marriage may be considered on the issue of a change of circumstances. Jourdan v. Jourdan, 251 S.W.2d 380, 383 (Mo.App.E.D.1952).

In addition to his remarriage and the birth of his child, Appellant and his current wife testified about considerable financial problems and poor living conditions. They had purchased a home under a contract for deed but were unable to continue making the payments and were evicted. At the time of the hearing, they were living in a motel because, according to their testimony, they did not have sufficient funds to pay the first and last months’ rent and a utility deposit required to rent an apartment.

Appellant had also filed bankruptcy, but was denied discharge of some of the debts which he was ordered to pay in the dissolution decree. His wages are subject to a garnishment for those debts. There was also a wage assignment for the maintenance payments to Respondent. At the time of the hearing, Appellant was earning $13.43 per hour to his work as a truck driver and he admitted that there had been some years since the dissolution in which he had made in the “middle $40’s.” Appellant testified that after the garnishment and wage assignments, his take home income was “around $250 to $300” per week. His present wife, however, described their net income per week as “anywhere from $300 to $350.”

Changed circumstances sufficient to support modification of a maintenance award must be proven by detailed evidence and must also show that the prior decree is unreasonable. Bradley v. Bradley, 880 S.W.2d at 379; Vance v. Vance, 852 S.W.2d at 193; Magaletta v. Magaletta, 691 S.W.2d 457, 458 (Mo.App.E.D.1985). The concept of a change of circumstances “necessarily entails a departure from a known prior state or condition.” Fulp v. Fulp, 808 S.W.2d at 423.

In the instant case, the evidence presented by Appellant concerning his present financial condition was of a general nature and did not reveal what additional expenses were attributable to the birth of his child. Additionally, there was no evidence which would have permitted the trial court to compare Appellant’s financial condition at the time of the hearing to that which existed at the time of the dissolution. Finally, no evidence was presented to the trial court about Respondent’s financial condition or needs either at the time of the dissolution or at the time of the hearing.

In the absence of evidence of a substantial and continuing change of circumstances, a prior maintenance award should not be modified. Fulp v. Fulp, 808 S.W.2d at 423. Additionally, an appellate court should exercise the power to set aside a decree or judgment on the ground that it is “against the weight of the evidence” with caution and with a firm belief that the decree [863]*863or judgment is wrong. Murphy v. Carron, 536 S.W.2d at 32. We are unable to find that the trial court erred, under the applicable standard of review, and therefore deny Appellant’s first point.

In his second point, Appellant contends that the trial court erred in not terminating or decreasing the maintenance award because of Respondent’s cohabitation with William Wesley Glenn. He relies primarily on Herzog v. Herzog,

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Bluebook (online)
906 S.W.2d 859, 1995 Mo. App. LEXIS 1407, 1995 WL 464790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butts-v-butts-moctapp-1995.