Katsantonis v. Katsantonis

245 S.W.3d 925, 2008 Mo. App. LEXIS 238, 2008 WL 424527
CourtMissouri Court of Appeals
DecidedFebruary 19, 2008
DocketED 89386
StatusPublished
Cited by8 cases

This text of 245 S.W.3d 925 (Katsantonis v. Katsantonis) 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
Katsantonis v. Katsantonis, 245 S.W.3d 925, 2008 Mo. App. LEXIS 238, 2008 WL 424527 (Mo. Ct. App. 2008).

Opinion

ROBERT G. DOWD, JR., Judge.

Christine Katsantonis (“Wife”) appeals from the judgment modifying the amount of monthly maintenance she receives from George Katsantonis (“Husband”). Wife contends the trial court erred (1) in reduc *927 ing her monthly maintenance amount because there was no substantial evidence to support the reduction, and (2) in failing to award her attorney’s fees. We reverse and remand.

On July 13, 2005, the trial court entered a judgment dissolving the twenty-six-year marriage of the parties. Pursuant to the judgment, which incorporated a marital settlement and separation agreement, Husband agreed and was ordered to pay Wife $5,500 per month for maintenance. Husband also agreed to be responsible for all the expenses with regard to the parties’ child, born November 27, 1985. At the time of the dissolution judgment, Husband’s gross annual income was $215,575 and Wife was not employed and her gross annual income was zero. 1 The trial court did not impute income to Wife.

On April 18, 2006, Husband filed a motion to modify the judgment requesting a reduction in his maintenance obligation. Husband asserted there was a substantial and continuing change in his circumstances because his income was substantially lower than was believed at the time of the judgment and his maintenance obligation and expenses for the parties’ child used almost all of his monthly income. Following a hearing on the motion to modify, the trial court found the evidence showed Husband’s gross annual income for 2005 was $188,842. The trial court, however, found there was “no credible testimony that any change in [Husband’s] gross annual income is of a substantial and continuing change of circumstances.” The trial court further found that Wife has a greater earning potential as an audiologist than her current clerical employment and that she is financially underemployed. The trial court stated that Wife’s income and earning power has increased substantially since the entry of the dissolution judgment. The trial court found this was a substantial and continuing change so as to make the original terms of the maintenance award unreasonable. The trial court entered a judgment reducing Husband’s maintenance obligation to $3,000 per month. The trial court also declined to award either party any attorney’s fees. This appeal follows.

Our review of a trial court’s judgment modifying a dissolution decree is limited to determining whether the judgment is supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Payne v. Payne, 206 S.W.3d 379, 384 (Mo.App. E.D.2006).

In her first point, Wife asserts the trial court erred in reducing Husband’s monthly maintenance obligation because there was no substantial evidence to support the reduction. Wife argues her subsequent employment did not constitute a substantial and continuing change of circumstances. We agree.

The provisions of any judgment respecting maintenance or support “may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms” of the original award unreasonable. Section 452.370.1, RSMo 2000. 2 Changed circumstances sufficient to support modification must be proven by detailed evidence and must also show that the prior decree is unreasonable. Nelson v. Nelson, 14 S.W.3d 645, 650 (Mo.App. E.D.2000). The party seeking modification has the burden *928 to establish that the terms of the original decree have become unreasonable. Id.

A change in circumstances warranting modification of maintenance exists where the obligor spouse is unable to pay maintenance at the assigned rate or the recipient of the support could meet her reasonable needs with a lesser amount of maintenance. Rustemeyer v. Rustemeyer, 148 S.W.3d 867, 870 (Mo.App. E.D.2004). Although a decrease in the income of the spouse paying maintenance or an increase in the income of the spouse receiving maintenance are both relevant factors for the court to consider, neither alone requires the court to modify the amount of maintenance previously ordered. Id. The ultimate issue is whether these changes are sufficiently substantial and continuing so as to make the original terms of the decree unreasonable. Id. at 870-71. A change in circumstances must be unknown and unforeseeable at the time of the entry of the judgment that the spouse seeks to modify. Id. at 871. To warrant modification, the change in circumstances must involve a departure from prior known conditions, including those known at time of dissolution. Id.

Here, the trial court based its reduction in Husband’s monthly maintenance award on Wife’s financial earning capacity. The trial court specifically stated:

[t]he Court also finds, through credible testimony, that [Wife] has significantly more financial earning power than her current income level. Although unemployed at the time of the Marital Separation and Settlement Agreement, [Wife] has since taken a clerical position earning approximately $8.50 per hour to $9.00 per hour at the [Saint] Louis Art Museum. This rate of pay on an annual basis equates to approximately $18,500 gross annual [income]. This Court, however, finds [Wife] financially underemployed. The Court heard credible testimony that [Wife] now possesses a graduate degree in audiology. The Court, furthermore, heard no credible testimony as to why [Wife’s] would be unemployable as an audiologist. Thus, it is reasonable to believe that [Wife] has a greater earning potential as an audiologist than her current clerical employment. ... Therefore, based on credible testimony and evidence presented at trial, the Court finds that [Wife’s] income and earning power has increased substantially since the entry of the Judgment/Decree of Dissolution on July 13, 2005.

Based on those findings, the trial court held there were substantial and continuing changes so as to make the original terms of the maintenance award unreasonable. We find the trial court’s determination is not supported by the evidence.

The record shows there was no substantial change in circumstances between entry of the dissolution judgment and the filing of Husband’s motion to modify some nine months later, or at the time of the hearing on the motion some fourteen months after the entry of the judgment. Here, Husband sought modification of his maintenance award based on a reduction in his income and the trial court specifically found there was no change of a substantial and continuing nature with regard to Husband’s income. Husband did not allege any change in circumstance concerning Wife. At the proceedings on the motion to modify, Wife testified she was employed at the gift shop at the Saint Louis Art Museum at an hourly rate of between $8.50 and $9.00, with a yearly income of approximately $20,000.

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Cite This Page — Counsel Stack

Bluebook (online)
245 S.W.3d 925, 2008 Mo. App. LEXIS 238, 2008 WL 424527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/katsantonis-v-katsantonis-moctapp-2008.