McGehee v. McGehee

943 S.W.2d 364, 1997 Mo. App. LEXIS 717, 1997 WL 199327
CourtMissouri Court of Appeals
DecidedApril 25, 1997
DocketNos. 20846, 20870
StatusPublished
Cited by4 cases

This text of 943 S.W.2d 364 (McGehee v. McGehee) 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
McGehee v. McGehee, 943 S.W.2d 364, 1997 Mo. App. LEXIS 717, 1997 WL 199327 (Mo. Ct. App. 1997).

Opinion

PARRISH, Judge.

Donald McGehee (husband) and Mary Carolyn McGehee (wife) both appeal the modification of their dissolution of marriage judgment. This court reverses the trial court’s finding that husband overpaid maintenance. The amount of money the trial court determined husband owed wife for delinquent maintenance is increased by the amount of the credit erroneously allowed husband. The order is affirmed as modified.

The dissolution of marriage judgment was entered May 15, 1986. It dissolved the marriage and approved a separation agreement. The separation agreement was made part of the judgment. The parties were ordered “to perform each and every covenant” of the agreement. The separation agreement set apart one item of nonmaritai property to wife, divided marital property, allocated responsibilities for payment of indebtedness and awarded maintenance to wife. Husband was required to pay wife’s attorney fees. The part of the separation agreement that awarded maintenance states:

MAINTENANCE
1. The Parties agree after examining all relevant factors, including the situation of the Parties at the present time, that periodic maintenance in the amount of $1,750.00 per month will be paid by HUSBAND to WIFE. Said maintenance shall be reduced by an amount received by WIFE as Social Security benefits when she becomes eligible to receive such benefits and WIFE agrees to provide evidence of said amount to HUSBAND. Maintenance will terminate upon WIFE’S remarriage or death of either party.
2. HUSBAND agrees to maintain WIFE as beneficiary on life insurance in the amount of $50,000.00 and to provide evidence of such insurance upon request.
3. HUSBAND agrees to pay to WIFE the amount of $220.00 per month to enable her to obtain medical and life insurance providing benefits at least equal to the benefits she now has available as HUSBAND’S dependent.

Both husband and wife filed motions to modify the dissolution judgment. Husband’s motion was filed April 18, 1994. Wife’s was filed May 12, 1994. Husband sought to terminate wife’s maintenance. His motion alleged wife received medical and health insurance from her employer; that she “therefore has not needed and does not need the $220.00 per month from [husband] as ordered by the Court for that purpose.” Husband requested the trial court to “enter a judgment against [wife] for those sums he has expended to provide [wife] with medical and health insurance during these periods where [wife] was receiving said insurance during the course of her employment.”

Wife’s motion sought an increase in the amount of maintenance provided by the dissolution judgment. The trial court found there had been a substantial and continuing change in the circumstances of the parties since the entry of the dissolution judgment. It modified the amount of maintenance by [366]*366reducing the $1,750 monthly payment to $1,275 and terminating the obligation to pay $220 per month for medical and life insurance.

The trial court found that husband’s “medical and life insurance” payment of $220 per month when wife had health insurance available from her employment “resulted in a net overpayment by [husband] of $14,570.00 in maintenance payments” and awarded husband judgment against wife in that amount. Husband was found to be delinquent in making maintenance payments. The trial court found he owed “back maintenance” of $17,-434.82. The trial court concluded, “That because of offsetting amounts ... [wife] is awarded an amount of $2,864.82.”

This court’s review is undertaken pursuant to Rule 73.01(c). The trial court’s order will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Hicks v. Hicks, 798 S.W.2d 524, 525-26 (Mo.App.1990). If there is conflicting evidence, this court defers to the findings of the trial court. Id. at 526.

Husband’s Appeal — No. 20870 ■

Husband’s Points I and II are directed to the trial court’s continuation of maintenance, although at a reduced amount, for wife. Husband contends the trial court erred in requiring him to continue paying maintenance to wife.

Point I alleges the trial court’s finding that wife was entitled to continue to receive maintenance is “not supported by substantial evidence and is against the weight of the evidence” in that “wife is able to support herself through appropriate employment and possesses sufficient property to provide for her reasonable needs.” The evidence husband relies on in support of his first point is that wife owns a house with a value of $108,000, “the mortgage on which is due to be paid off in December of 1996;” “wife has a survivor-ship interest” in another house worth $104,-000 that is her parents’ residence; wife is employed and, in addition to income from her employment, receives income from private tutoring and giving piano lessons; and wife is eligible for social security benefits.

Point II alleges the trial court’s order for husband to pay maintenance of $1,275 per month is “not based on substantial evidence and is against the weight of the evidence” in that “husband does not have the means to meet his reasonable needs while meeting the maintenance obligation for wife.” The evidence husband relies on in support of his second point is that his annual income was reduced from more than $70,000 per year at the time of the dissolution of marriage to less than $35,000; that he received a housing allowance at the time of the dissolution of marriage in the amount of $21,000 per year that he no longer receives; that since the dissolution he has depleted various personal assets; and the amount he was ordered to pay wife is greater than half his current net income.

Points I and II will be discussed together.

The trial court found the following substantial and continuing change of circumstances in determining that the amount of maintenance husband was required to pay should be reduced:

a. [Husband’s] income, including a housing allowance he received from his employer, Ozark Christian Counseling Service, has dropped from $55,017.00 at the time the decree was entered in 1986 to less than $35,000.00 at the present time due to the merging of Ozark Christian Counseling Service with his present employer, Forest Institute of Professional Psychology;
b. [Wife] is currently employed by the Springfield R-12 Public School District in which she receives medical and life insurance benefits;
c. [Wife] is currently a titled owner of two homes located at 3618 South Broadway Avenue and 4033 South Broadway in Springfield, Greene County, Missouri[,] which have a combined fair market value of in excess of $200,000.00;
d. [Wife] is currently 63 years old and is currently entitled to social security benefits of $342.00 per month plus an additional divorced spouse benefit of $143.00 per month for a total of $485.00 per month;
[367]*367e. [Wife] will be entitled to social security benefits at age 65 in the amount of $395.00 plus an additional $172.00 in divorced spouse benefits for a total of $567.00 per month;
f.

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Related

Wilson v. Whitney
81 S.W.3d 172 (Missouri Court of Appeals, 2002)
In Re Marriage of Hammerschmidt
48 S.W.3d 614 (Missouri Court of Appeals, 2001)
Shook v. Shook
997 S.W.2d 103 (Missouri Court of Appeals, 1999)
Brooks v. Brooks
957 S.W.2d 783 (Missouri Court of Appeals, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
943 S.W.2d 364, 1997 Mo. App. LEXIS 717, 1997 WL 199327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgehee-v-mcgehee-moctapp-1997.