Cooper v. Cooper

893 S.W.2d 839, 1995 Mo. App. LEXIS 162, 1995 WL 33995
CourtMissouri Court of Appeals
DecidedJanuary 31, 1995
DocketNo. 19388
StatusPublished
Cited by5 cases

This text of 893 S.W.2d 839 (Cooper v. Cooper) 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
Cooper v. Cooper, 893 S.W.2d 839, 1995 Mo. App. LEXIS 162, 1995 WL 33995 (Mo. Ct. App. 1995).

Opinion

MONTGOMERY, Judge.

This is an appeal from a judgment terminating the non-custodial parent’s obligation to pay child support. On April 19, 1990, the Circuit Court of McDonald County dissolved the marriage of Jerry Don Cooper (Father) and Sandra Aleñe Cooper (Mother). The decree awarded Mother the custody of the parties’ three minor children, and Father was ordered to pay child support in the amount of $111 per month per child. After awarding the marital home to Father, Mother was awarded a judgment against him for $18,910 which the decree denominated as a judgment lien against the real estate. This sum represented one-half of the parties’ equity in the real estate and was made in furtherance of the trial court’s division of property.

After Mother remarried in 1991, she voluntarily gave Father custody of the minor children. On August 20, 1992, the court modified the original decree by granting Father custody of the children and ordering Mother to pay child support in the total amount of $400 monthly.

Although the dates are unclear from the record, Father defaulted on his bank loan which was secured by the marital home. The bank foreclosed and Father’s aunt and uncle bought the property at the foreclosure sale.

After Mother remarried and gave birth to another child, she quit her job with the State Bank of Noel on January 8, 1993. She moved for a modification of her child support obligation claiming she was unable to work, needing instead to care for her baby. Father’s answer admitted that Mother voluntarily terminated her bank job but alleged that she was “employable.” On April 27, 1993, the trial court found “that there is a substantial and continuing change of circumstance since the time of the last modification order affecting [Mother’s] ability to pay child support, in that, [Mother] is no longer employed and has a one year old child to care for.” However, the court also found that Mother “is capable of garnishing at least 10% of [Father’s] wages, but has not done so and, therefore, has some financial means to pay the child support order.” Mother’s child support obligation was then decreased to $64.80 payable every other Friday. Neither side appealed from this judgment.

When Father’s wages were garnished, he filed a bankruptcy petition on August 18, 1993, and the automatic stay ended Mother’s garnishment efforts. Mother’s judgment was later discharged.

[841]*841Mother filed the instant motion to modify in August 1993 claiming that she had no means to pay any child support because of Father’s bankruptcy. Father filed a counter-motion requesting that Mother be ordered to pay a reasonable amount of child support because Mother’s lack of employment was a voluntary reduction in earnings “to avoid paying child support.” After a hearing the trial court entered an order on January 4, 1994, abating Mother’s child support obligation as of November 1, 1993, and denying Father’s countermotion. Father appeals.

In his first point, Father asserts that the trial court erroneously failed to impute an income to Mother for child support purposes because she voluntarily declined to work. As a result, says Father, the judgment is against the weight of the evidence, is not supported by substantial evidence, and reflects an abuse of discretion. His last point alleges that the trial court misapplied the law in finding that a substantial and continuing change of condition occurred as a result of Father’s bankruptcy without considering Mother’s earning capacity and her financial resources. Neither point has merit.

Initially we note that our standard of review requires that we affirm the trial court’s ruling unless it is unsupported by substantial evidence, unless it is against the weight of the evidence, or unless it misstates or misapplies the law. Boudreau v. Benitz, 827 S.W.2d 732, 733 (Mo.App.1992). Under Rule 73.01(c)(2), we give due regard to the trial court’s opportunity to judge the credibility of the witnesses. The trial judge may believe or disbelieve all, part, or none of the testimony of any witness, and the court may disbelieve testimony even when uncontradicted. Nix v. Nix, 862 S.W.2d 948, 951 (Mo.App.1993). Finally, we view the evidence and permissible inferences therefrom in the light most favorable to the trial court’s order and disregard all contrary evidence and inferences. Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991).

As we understand Father’s first point, he complains that the trial court erroneously denied his countermotion. He argues that Mother voluntarily refused to work because she believed that she is the best caretaker of her two-year-old baby who suffers from chronic ear infections. Because she is able-bodied with a good history of prior employment, Father argues that the court should have imputed income to her for child support purposes.

Father’s ai’gument fails to recognize that the trial court ruled on precisely the same scenario just a few months earlier. The April 1993 modification judgment determined that Mother quit her job in order to care for her one-year-old child, found that to be a substantial and continuing change of circumstance, and reduced Mother’s child support obligation presumably to the amount collectable from a garnishment of Father’s wages. The court apparently made that determination because Mother’s judgment against Father was her only source of income. In short, Father has failed to plead or prove any facts in the instant proceeding arising since the last modification.

Section 452.370.1, RSMo Supp.1993, provides that in a proceeding for modification of child support, the award “may be modified only upon a’ showing of changed circumstances so substantial and continuing as to make the terms unreasonable.” In considering whether there has been a sufficient change of circumstances to warrant modification, we look to the date of the last prior modification. In re Marriage of Goodrich, 622 S.W.2d 411, 413 (Mo.App.1981).

Gori v. Gori, 490 S.W.2d 282 (Mo.App.1973), is a case involving these principles. There, on ex-wife’s motion to modify, her child support award was increased from $45 weekly to $90 weekly. Her evidence indicated that the needs of the children had expanded, and her ex-husband’s income had increased substantially since the divorce. Ex-husband did not appeal.

Six months later ex-husband filed a motion to modify seeking to reduce the $90 weekly award. He contended that “ ‘the testimony [842]*842of plaintiff in regard to defendant’s earnings was incorrect. Defendant’s present earnings are substantially less than as testified to by plaintiff on April 23, 1971 and constitute a substantial change in conditions.’ ” Id. at 283. The trial court again modified the decree and lowered ex-husband’s child support obligation even though his evidence showed no income changes occurring after the April 1971 modification. The appellate court said:

[Defendant] may succeed only on evidence of new conditions occurring since the last preceding decree of modification. Defendant had no such evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
893 S.W.2d 839, 1995 Mo. App. LEXIS 162, 1995 WL 33995, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooper-v-cooper-moctapp-1995.