Moseley v. Moseley

744 S.W.2d 874, 1988 Mo. App. LEXIS 136, 1988 WL 7106
CourtMissouri Court of Appeals
DecidedFebruary 4, 1988
Docket15109
StatusPublished
Cited by14 cases

This text of 744 S.W.2d 874 (Moseley v. Moseley) 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
Moseley v. Moseley, 744 S.W.2d 874, 1988 Mo. App. LEXIS 136, 1988 WL 7106 (Mo. Ct. App. 1988).

Opinion

HOLSTEIN, Judge.

Appellant Betty Moseley (Betty) appeals from a judgment modifying an earlier decree under which respondent Paris Moseley (Paris) was to pay her $500 per month maintenance. Under the modification, all maintenance was terminated. Two points are raised on appeal. In Betty’s first point, she asserts the trial court should have excused her failure to appear at the hearing on the motion to modify held January 21, 1987, because she had good reason for being absent and she had a meritorious defense. In her second point, she asserts that the trial court erroneously terminated her maintenance because there was no evidence supporting such judgment. Because the second point is dispositive of the case, we do not address the first point.

Preliminarily, we note that prior to the date of the hearing and judgment modifying the decree, Betty’s pleadings had been stricken pursuant to Rules 61.01(b)(1) and 61.01(d)(2) 1 for failure to comply with discovery. Betty makes no complaint on appeal that the striking of her pleadings was error, and we find no error in the trial *877 court having done so. In re Marriage of Dickey, 553 S.W.2d 538, 541 (Mo.App.1977). Thus, when the hearing was held on January 21, Betty was in default, the effect of which was to admit all traversable allegations of fact contained in the petition. Maynard v. Maynard, 601 S.W.2d 649 (Mo.App.1980).

Our review of the modification order is limited to determining whether it is supported by substantial evidence, whether it is against the weight of the evidence, or whether it erroneously declares or applies the law. Markowski v. Markowski, 736 S.W.2d 463, 465 (Mo.App.1987). A decree is set aside on the ground that it is against the weight of the evidence only upon a firm belief that the decree or judgment is wrong. Seelig v. Seelig, 540 S.W.2d 142, 145 (Mo.App.1976). We review the evidence in this case with these principles in mind.

The parties are now over sixty years of age, having been married on May 22, 1943. During the marriage, the couple acquired substantial marital property. They were divorced December 22,1980. The decree of dissolution was affirmed on appeal. Moseley v. Moseley, 642 S.W.2d 953 (Mo.App.1982). A prior attempt by Paris to modify maintenance filed in 1983 was unsuccessful. The original decree remained unchanged when the present action was filed on February 13, 1985.

In his present motion to modify as amended, Paris alleges that his economic circumstances have changed in that he now owes certain debts and that he has suffered a reduction of income. In addition, he alleges that Betty now has “sufficient property and assets, including the sums received by her on March 3, 1983, in satisfaction of the judgment and decree of dissolution of marriage, to independently provide for her own support and maintenance.”

At the hearing on the motion to modify, Paris testified that his gross salary for the preceding year, 1986, was $27,404.23, while in 1985 he earned in excess of $43,000. However, the reduction in the 1986 income was more modest when compared to his income at the time of the decree of dissolution. At that time, the court found Paris' income was $29,900. Moseley v. Moseley, supra, 959. Paris also testified that his current monthly expenses are $2,425.66. This compares with Paris’ monthly expenses at the time of the original decree in the sum of $1,200 to $1,300. Moseley v. Moseley, supra. Paris’ present monthly expenses include support for Betty, as well as his present wife, and a payment of approximately $700 on debts owing to Paris’ brother. The debts were incurred in April and August of 1986 for the purpose of paying taxes and repairing a house. Paris testified his expenses exceed his net monthly income by approximately $700.

Paris also testified that as of January, 1987, Betty was not so sick as to be unable to come and go as she pleases and has now received the money due her under the original decree of dissolution. In the original case, Betty’s health, education, and job experience were determined to be so deficient that even considering the income from the money awarded to her under the decree of dissolution, she was entitled to maintenance. Moseley v. Moseley, supra, 958-959. According to Paris, Betty is presently unemployed.

In order to justify a modification of maintenance, Paris is required to show a change of circumstances so substantial and continuing in nature as to make the terms of the original decree unreasonable. § 452.370.1. The difference in Paris’ annual income in 1980 and 1986 is $2,500. A decrease in a husband’s income alone does not call for a reduction in maintenance for the wife. Calicott v. Calicott, 677 S.W.2d 953, 955 (Mo.App.1984). The only other changes in Paris’ circumstances are his remarriage and the debt owing to his brother. A divorced husband’s remarriage is not a ground for decreasing alimony awarded a former wife in the absence of children bom to the second marriage. *878 Clisham v. Clisham, 485 S.W.2d 660, 665 (Mo.App.1972). Paris’ debts to his brother were voluntary. When one owing an obligation of support incurs expenses of his own choosing, he has failed to prove his financial plight is due to anything other than his own volition and, as a result, has failed to show a change in circumstances warranting a reduction in maintenance. Moore v. Morgan, 723 S.W.2d 583, 585 (Mo.App.1987). To the extent that Paris’ monthly expenses include support for his present wife and payments on debts voluntarily incurred only a few months prior to the hearing, such expenses must be discounted. Calicott v. Calicott, supra, 955.

While a reduction of income does not necessarily require a modification, that factor may be taken into consideration where there has been a substantial change in the needs of the other spouse. Seelig v. Seelig, supra, 146-147. The only change that can be gleaned from the pleadings and evidence regarding Betty’s circumstances is that she is now ambulatory. There is nothing in this record to indicate that Betty’s health, training, or experience have improved to such an extent that she is now employable or that she is now receiving income from some previously unknown source. In short, there is nothing to indicate that she has had any change of circumstances.

Paris’ brief suggests another change of circumstances. The primary marital assets set aside to Paris under the original decree was a 520-acre farm. Betty received $100,000 cash.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Marriage of Clinton
231 S.W.3d 317 (Missouri Court of Appeals, 2007)
Swartz v. Johnson
192 S.W.3d 752 (Missouri Court of Appeals, 2006)
Reed v. Reed
48 S.W.3d 634 (Missouri Court of Appeals, 2001)
Marriage of Milligan v. Helmstetter
15 S.W.3d 15 (Missouri Court of Appeals, 2000)
Zimmerman v. Zimmerman
913 S.W.2d 76 (Missouri Court of Appeals, 1995)
Butts v. Butts
906 S.W.2d 859 (Missouri Court of Appeals, 1995)
Vance v. Vance
852 S.W.2d 191 (Missouri Court of Appeals, 1993)
Bell v. Bell
849 S.W.2d 194 (Missouri Court of Appeals, 1993)
Crowley v. Crowley
838 S.W.2d 95 (Missouri Court of Appeals, 1992)
Parrett v. Parrett
793 S.W.2d 911 (Missouri Court of Appeals, 1990)
Ramage v. Ramage
792 S.W.2d 432 (Missouri Court of Appeals, 1990)
Stanley v. Stanley
793 S.W.2d 487 (Missouri Court of Appeals, 1990)
Marriage of Saloma v. Saloma-Orozco
788 S.W.2d 799 (Missouri Court of Appeals, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
744 S.W.2d 874, 1988 Mo. App. LEXIS 136, 1988 WL 7106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moseley-v-moseley-moctapp-1988.