Petersen v. Petersen

214 S.W.3d 355, 2007 Mo. App. LEXIS 252, 2007 WL 474011
CourtMissouri Court of Appeals
DecidedFebruary 15, 2007
DocketNos. 27425, 27426
StatusPublished
Cited by1 cases

This text of 214 S.W.3d 355 (Petersen v. Petersen) 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
Petersen v. Petersen, 214 S.W.3d 355, 2007 Mo. App. LEXIS 252, 2007 WL 474011 (Mo. Ct. App. 2007).

Opinion

GARY W. LYNCH, Judge.

The marriage of Carl Petersen (“Carl”)1 and Virginia Elaine Petersen (“Elaine”) was dissolved by judgment of the Circuit Court of Newton County, wherein Carl was ordered to pay Elaine maintenance. Alleging a reduction in his income, Carl filed a motion to modify the judgment on February 13, 2003, seeking to lower or eliminate his maintenance obligation. Following trial on December 22, 2004, the trial court entered a judgment reducing the maintenance amount. Both parties appeal this modification. Because we find no substantial evidence to support the amount of Carl’s 2004 income as determined, found, and apparently relied upon by the trial court, we reverse and remand.

[357]*357 (1) Factual and Procedural Background

The original dissolution judgment, filed June 1, 2001, required that Carl pay maintenance of $7,471 per month to Elaine. On February 13, 2003, Carl filed a Motion to Modify (“Motion”) the amount of maintenance, alleging changed circumstances so substantial and continuing as to make the original maintenance amount unreasonable. His claimed changed circumstance was a reduction in his income by more than twenty-five percent.

Carl is, and was at the time of the original dissolution, the sole shareholder of Star-Brite Plating, Inc. (“Star-Brite”). Star-Brite performs metal finishing on other people’s products. Star-Brite paid Carl compensation in varying amounts, depending upon its success in a given year. Carl’s adjusted gross income, as reported for income tax purposes for the years 1999 and 2001 through 2003,2 was:

1999 - $533,871
2001 - $254,383
2002 - $306,972
2003 - $ 81,076

Carl’s testimony at trial explained that the 2002-2003 diminution in income was caused by a decline in Star-Brite’s business. One of Star-Brite’s major customers was a company named NTN, which provided parts for Ford Motor Company. In the latter months of 2002, NTN began decreasing its business with Star-Brite, and in March 2003, it terminated virtually its entire business relationship with Star-Brite. This was a severe blow to Star-Brite, as NTN represented about eighty percent of its business. Star-Brite was forced to fire four employees, and Carl personally filed for bankruptcy due to this business decline.

Trial on the Motion was held on December 22, 2004. At the close of all the evidence, the trial court observed:

There’s been a request for findings of facts and also for — a request for the Court to draft and adopt an opinion to include a statement of the grounds for its decision. So each party is allowed x days to file proposed findings of fact and grounds for decision, method of determining income circumstances and willful intent.

Although the actual written request for “findings of facts” was not included in the record on appeal, we glean from this statement that one party had made a specific request for factual findings as to the “method of determining income circumstances.”

On March 25, 2005, the trial court filed its Findings of Fact and Conclusions of Law, which, among other findings, found: (1) Carl’s “approximate gross income for 2204[sic] was $40,000”; (2) Carl testified “he had taken no formal salary for [2004], but had drawn approximately $40,000 out [of Star-Brite] as expenses which he utilized to pay his personal expenses”; (3) Carl “has no other income, other than from Star-Brite”; (4) Carl “continues to operate Star-Brite, however he does not have any immediate prospect for return to the income enjoyed during the marriage and following until NTN reduced and alter [sic] cancelled its contracts [sic] with Star-Brite”; and (5) Carl’s “income has decreased more than twenty-five percent (25%).”

In its Conclusions of Law, the trial court, among other matters, concluded that: (1) Carl’s “loss of income has been both substantial and continuing, such that [358]*358the original order of support is unreasonable”; and (2) Carl “no longer has assets or income with which to provide maintenance per the original order of support.”

Incorporating its March 25, 2005 Findings of Fact and Conclusions of Law, the trial court, on December 7, 2005, entered judgment reducing Carl’s maintenance payment to $2,500 per month, as of February 13, 2003. Both parties appeal this judgment.

(2) Standard of Review

A motion to modify maintenance will be affirmed unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Winchester v. Winchester, 163 S.W.3d 57, 59 (Mo.App.2005). We will defer to the trial court on its decision to modify, even if the evidence could support a different conclusion. Id. “The evidence, including all reasonable inferences drawn therefrom, is viewed in the light most favorable to the judgment, and all evidence and inferences to the contrary are disregarded.” Clark v. Clark, 101 S.W.3d 323, 329 (Mo.App.2003).

When the amount of the maintenance award, which is within the discretion of the trial court, is questioned on appeal, we review for an abuse of that discretion. Corrier v. Corrier, 112 S.W.3d 443, 446 (Mo.App.2003).

(3) Discussion

Carl’s appeal — Appeal No. 27125

Carl appeals the judgment, claiming the trial court erred in ordering him to pay $2,500 per month in maintenance, because that amount plus his own basic living expenses exceeds his annual income as found by the trial court.

The trial court, in its findings of fact and conclusions of law, stated that Carl’s “approximate gross income for [2004] was $40,000.” It based this amount upon Carl’s testimony that the gross sales at Star-Brite had so decreased that he took no formal salary and only drew out approximately $40,000 from the company in 2004 to pay his personal expenses.3 Carl asserts that paying $30,000 of his $40,000 income in maintenance per year would leave him with only $10,000 a year to meet his own basic needs, and this amount is insufficient.

If there was substantial evidence in the record to support the trial court’s finding that Carl’s income is only $40,000, then there would be insufficient income from which Carl could meet the terms of the award, and the award, as an abuse of the trial court’s discretion, would be erroneous. See Sarandos v. Sarandos, 643 S.W.2d 854, 858-59 (Mo.App.1982). However, we cannot reach this issue, because there is no substantial evidence in the record from which the trial court could have determined that Carl’s income in 2004 was $40,000.

The trial court’s $40,000-approximation of Carl’s 2004 income derives from Carl’s statements and evidence showing that this is the amount of money he withdrew from Star-Brite to pay for his personal expenses. Carl is, and was at all relevant times, the sole shareholder of Star-Brite. As such, it was and is his decision as to how much money he takes out of the company and pays to himself.

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214 S.W.3d 355, 2007 Mo. App. LEXIS 252, 2007 WL 474011, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petersen-v-petersen-moctapp-2007.