Crowell v. Crowell

742 S.W.2d 244, 1987 Mo. App. LEXIS 5162, 1987 WL 30431
CourtMissouri Court of Appeals
DecidedDecember 29, 1987
Docket14989
StatusPublished
Cited by9 cases

This text of 742 S.W.2d 244 (Crowell v. Crowell) 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
Crowell v. Crowell, 742 S.W.2d 244, 1987 Mo. App. LEXIS 5162, 1987 WL 30431 (Mo. Ct. App. 1987).

Opinion

MAUS, Judge.

This action was commenced by the husband’s motion to modify to reduce an award of monthly maintenance. The wife then filed a motion to modify to increase an award of child support. The trial court reduced the maintenance and denied an increase in child support. The wife appeals.

The parties entered into a separation agreement on August 10,1979. The agreement was approved and its terms concerning maintenance and child support were incorporated in a decree of dissolution entered on October 2, 1979. Under those terms the husband was to pay the wife $300 per month maintenance and “said payments shall be increased by $40.00 per month beginning January 1,1980, and shall be increased by $40.00 per month for each year thereafter; ....” He was to pay child support of $300 per month. He was also to pay medical and dental expenses and maintain certain insurance for the benefit of his son. The husband filed the instant motion on January 2, 1986, at which time he was obligated to pay maintenance of $580 per month.

A hearing upon the motions was held August 15, 1986. A succinct outline of the basic evidence follows. The wife teaches in the elementary school system in Sikeston. In 1979 she earned approximately $12,320. Subsequent to the dissolution she earned a masters degree. In addition, she has accumulated approximately 28 hours toward a *246 doctorate degree. In 1985 she earned $31,-241.

The husband is employed by Noranda, Inc., an aluminum processor. In 1979, he was promoted to superintendent. The promotion was not disclosed or considered in reaching the separation agreement or during the dissolution proceeding. In 1979 the husband earned $25,000. In 1985 he earned $55,155.12. The husband remarried. He lives with his new wife and her 16-year-old daughter by a prior marriage. His new wife is a supervisor of nurses and in 1985 earned $32,052.80. She receives $150 per month child support for nine months of the year.

Each party presented a written estimate of monthly living expenses. Those monthly expenses for the wife and her son to-talled $3,140. Her disposable income was reported to be $2,338.67 per month. She stated that since the dissolution, her son’s expenses had increased since he had grown older. She presented no evidence of her expenses or his expenses at the time of the dissolution. She did testify that since the dissolution she had been forced to use savings of $7,000 for living expenses.

The husband’s estimate of his monthly living expenses totalled $4,666. This estimate apparently included living expenses of his wife and stepdaughter. His disposable income was reported to be $3,182.34 per month. He presented no evidence of his living expenses at the time of the dissolution.

The wife’s basic point is that in reducing maintenance and denying an increase in child support, the trial court misapplied the law and its action is not supported by substantial evidence. The basic rule governing modification of a dissolution decree is statutory. Such a decree can be modified only upon a showing of changed circumstances. § 452.370.1. However, “[n]ot every change of circumstances will justify a modification of the decree.” Markham v. Markham, 506 S.W.2d 84, 86 (Mo.App.1974). Such changed circumstances must be so substantial and continuing as to make the terms of the prior decree unreasonable. § 452.370.1.

An appellate court will review application of that statutory rule in accordance with well established standards. Those standards include the following. “[T]he legislature in enaeting § 452.370 intended to require a stricter standard for modification of a decree of dissolution than was formerly required.” Calicott v. Calicott, 677 S.W.2d 953, 955 (Mo.App.1984). Also see Magaletta v. Magaletta, 691 S.W.2d 457 (Mo.App.1985). The burden of demonstrating a substantial and continuing change is upon the movant. Lyles v. Lyles, 710 S.W.2d 440 (Mo.App.1986). The trial court’s judgment shall be sustained unless there is no substantial evidence, the verdict is against the weight of the evidence, the court has erroneously declared the law, or the court has erroneously applied the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

Without stating the nature of the change, the trial court made a general finding there had been a change of circumstances so substantial and continuing as to render the original award of maintenance unreasonable. It adjudged that retroactive to January 2, 1986, the husband should pay the wife maintenance of $300 per month. It made no finding concerning the wife’s motion, but denied the same.

To support the reduction of maintenance, the husband’s point states the trial court did not err “by decreasing the amount of maintenance payable to appellant when appellant had greater disposable income than respondent, a greater earning potential because of an advanced degree and her expenses were exaggerated and when respondent’s income was going to decrease by a minimum of ten percent.” To establish the first aspect of this point, by including receipt of maintenance and child support, an anticipated salary increase and income from teaching piano, the husband asserts the wife has disposable income of $2,476 per month. He points out that after deductions he earns $3,182.34. By subtracting maintenance and child support of $880 per month, he establishes his disposable income is $2,302.34, which is less than that of the wife. For two obvious reasons this computation does not establish a change that *247 causes the husband’s payment of the maintenance to which he agreed and which was incorporated into the dissolution decree to be unreasonable.

By a separate point, the husband contends the trial court did not err in denying an increase in child support because at the motion hearing the wife failed to show the expenses of child support at the time of the dissolution, as compared to those expenses at the time of trial. This contention has merit. Bogusky v. Bogusky, 710 S.W. 2d 445 (Mo.App.1986). The wife’s motion for increased child support was properly denied.

However, this basis upon which the husband prevails in respect to the motion for child support is equally applicable to his point concerning maintenance. The husband failed to produce any evidence concerning the expenses of the wife or the relative disposable income of the parties at the time of the dissolution. Moreover, at the time of the dissolution, the wife earned approximately $1,000 per month and the husband earned approximately $2,000 per month. After the payment of child support and maintenance, the wife’s income was $1,600 per month and the husband’s income was $1,400 per month. The evidence does not establish a change in the relative disposable income of the parties.

Further, the husband’s argument does not establish such a disparity is unreasonable. The increase in the income of the wife does not per se provide a basis for reduction of maintenance.

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Bluebook (online)
742 S.W.2d 244, 1987 Mo. App. LEXIS 5162, 1987 WL 30431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crowell-v-crowell-moctapp-1987.