Fowler v. Fowler

21 S.W.3d 1, 2000 Mo. App. LEXIS 581, 2000 WL 460488
CourtMissouri Court of Appeals
DecidedApril 25, 2000
DocketNo. ED 76059
StatusPublished
Cited by5 cases

This text of 21 S.W.3d 1 (Fowler v. Fowler) 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
Fowler v. Fowler, 21 S.W.3d 1, 2000 Mo. App. LEXIS 581, 2000 WL 460488 (Mo. Ct. App. 2000).

Opinion

GARY M. GAERTNER, Presiding Judge

Appellant, Carole St. Mard Fowler, (“wife”), appeals from the Circuit Court of St. Louis County’s judgment granting respondent, George S. Fowler, Jr.’s, (“husband”), motion to modify their original decree of dissolution of marriage. We reverse in part and affirm in part.

The approximately twenty-five-year marriage of wife and husband was dissolved on January 16, 1991. Under the decree of dissolution, which had the parties’ property settlement and separation agreement incorporated into it, husband had agreed to pay wife maintenance of $1,200 per week and had agreed to maintain a life insurance policy with a death benefit of $750,000 for the benefit of wife and husband’s five children.1 The insurance policy or its equivalent, was to be owned and administered in a trust known as the “Irrevocable Family Insurance Trust Agreement of [Husband], Dated 1-16-91.”

On February 5, 1996, husband filed a motion to modify. Husband’s motion requested the court to terminate maintenance or in the alternative to reduce maintenance and to eliminate the life insurance requirement.

On March 11, 1997, the trial was held before a Commissioner on husband’s motion to modify. Husband testified that he was employed by Fowler Loose Leaf Stationery Company (“Fowler Loose Leaf’), which he purchased from his mother approximately 25 years prior to the trial. Husband testified his income at the time of the entry of the decree of dissolution was approximately $4,300 per week. He testified he had reduced this income to $3,300 per week in January 1995, and again reduced it to $2,300 per week in October 1996. Further, husband testified his weekly salary was to be reduced again the week of the trial to $1,500 per week. Husband and the accountant for Fowler Loose Leaf testified there were declines in sales for Fowler Loose Leaf beginning in 1993 and for every year since. Husband and accountant both testified that husband controlled the amount of salary paid to him, the usage of charge cards by the company and that husband provides the information to accountant as to which expenses on the charge cards are for business and which are personal.

[3]*3Husband further testified he receives $2,000 per month in rental payments from Fowler Loose Leaf for the building he and his current wife own. Husband also receives $792 per month from a trust fund. Husband presented no evidence regarding the life insurance provisions in his case.

Wife testified she was 61 years old at the time of trial, had one year of college in 1956. The last time wife was employed was in 1975 at Fowler Lease Leaf where she was paid approximately $80-100 per week. She testified she has not received any job training since college. Wife testified she owns a house and a cottage valued at respectively, $285,000 and $90,000. Further wife testified that the cottage brings in rental income of $4,600 annually but expenses for the cottage are approximately $12,700 per year.

At the close of the evidence, wife’s counsel made an oral motion under Rule 73.01 for judgment in her favor on the grounds that under the law and the facts adduced, husband was not entitled to relief. Commissioner denied the motion as to termination of the maintenance obligation but sustained the motion as it pertained to the termination of the life insurance obligation. Wife filed a timely request for findings of facts.

On April 8, 1997, Commissioner entered his “judgment.” In finding for husband, Commissioner found “a change in circumstances so substantial and continuing as to make the terms [of the decree of dissolution] concerning maintenance unreasonable” and ordered husband’s obligation to pay maintenance terminated. Commissioner further found husband no longer had an obligation to maintain the life insurance as specified in the parties’ separation agreement.2 This “judgment” of April 8, 1997 failed to include any findings of fact.

On April 29,1997, wife filed a motion for rehearing or in the alternative a motion to amend or for new trial requesting inter alia that the court render a judgment accompanied by findings of fact and conclusions of law.

On June 12, 1997, Commissioner issued an “Amended Judgment/Order” which included findings of fact and conclusions of law. Commissioner found husband’s personal income had decreased. Further, Commissioner found wife’s expenses had decreased, and wife is “able bodied and capable of becoming gainfully employed and has rental income that combined would be adequate to meet her demonstrated need.” Commissioner also found “it would be reasonable but, not necessary, for [wife] to seek professional license education and training to begin a career in real estate for example, that requires no more than six months to accomplish.”

Further, Commissioner found:

“... with regard to the maintenance of life insurance [husband] was under an obligation to create an Irrevocable Insurance Trust pursuant to the Decree of Dissolution that provided for life insurance benefits naming [wife] and the parties’ children as beneficiaries. Thereby raising the issue as to modification of the Decree regarding life insurance as to whether [husband] has created an Irrevocable Life Insurance trust or not. The evidence does not address the existence or non-existence of such a trust. In addition, the Decree of Dissolution left [wife] with a remedy of law by indicating that [wife] has recourse against the Estate of [husband] in the event he failed to perform as directed. Therefore, the court finds that pursuant to the Decree, specifically paragraph 6, [husband] was ordered to establish an irrevocable insurance trust and the maintenance of life insurance outside of such a trust would be modifiable.”

On June 25, 1997, wife filed a second motion to amend or for a new trial. On July 21, 1997, Commissioner heard and [4]*4denied the motion. On July 30, 1997, wife filed her notice of appeal to this court.

On January 9, 1998, the Honorable Mel-vyn W. Wiesman, entered a judgment and order adopting Commissioner’s prior judgment.

On July 31, 1998, this court issued its opinion, but then transferred the case to the Missouri Supreme Court under Rule 83.02. On February 9, 1999, the Supreme Court dismissed wife’s appeal on the grounds that the judgment was not final in that wife’s motion for rehearing under Section 487.030 RSMo (1994) and Rule 127.05 was still pending. Fowler v. Fowler, 984 S.W.2d 508 (Mo.banc 1999).

On February 25, 1999, wife filed in the circuit court, a motion for review of the record, for oral argument as part of the court’s consideration of [wife’s] motion for rehearing and determination of whether to adopt and confirm Commissioner’s recommendations. On April 9, 1999, oral argument on wife’s motions was held before Judge Wiesman.

On April 13,1999, the trial court entered an order sustaining the motion for review of the record but “to the extent required by Section 487.030 RSMo and denied to the extent it requires review of law beyond that required by Section 487.030 RSMo.” The court further denied wife’s motion for rehearing and adopted and confirmed the Commissioners findings and recommendation as entered on April 8, 1997, and amended on June 12,1997.

On April 21, 1999, wife filed her timely notice of appeal. Wife raises four points on appeal.

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Bluebook (online)
21 S.W.3d 1, 2000 Mo. App. LEXIS 581, 2000 WL 460488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fowler-v-fowler-moctapp-2000.