Pierce v. Pierce

215 S.W.3d 263, 2007 Mo. App. LEXIS 268, 2007 WL 491685
CourtMissouri Court of Appeals
DecidedFebruary 16, 2007
Docket27585
StatusPublished
Cited by3 cases

This text of 215 S.W.3d 263 (Pierce v. Pierce) 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
Pierce v. Pierce, 215 S.W.3d 263, 2007 Mo. App. LEXIS 268, 2007 WL 491685 (Mo. Ct. App. 2007).

Opinion

DANIEL E. SCOTT, Judge.

The marriage of Kim (“Wife”) and James (“Husband”) Pierce was dissolved in 1998. 1 Husband was ordered to pay Wife $500 per month modifiable maintenance, plus $1,192 per month child support for the couple’s two children, which was later reduced to $976 for the remaining unemanci-pated child, Andrew.

After Husband was medically forced to retire, he moved to modify his maintenance and child support obligations in 2005. The court granted his motion, terminated Wife’s maintenance, and modified both parties’ child support obligations. 2 Wife’s appeal includes eleven claims of error. We reverse and remand with directions as to Point VII. Otherwise, we affirm.

*265 We review maintenance and child support modification decisions under the same standard, affirming the trial court unless its judgment is unsupported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Schleisman v. Schleisman, 989 S.W.2d 664, 667 (Mo.App.1999); Gerecke v. Gerecke, 954 S.W.2d 665, 667 (Mo.App.1997). We review the record and reasonable inferences in favor of the order, disregard contrary inferences, and defer to the trial court even if the evidence could support a different conclusion. Gerecke, 954 S.W.2d at 667. Neither Husband nor Wife requested written findings of fact or conclusions of law, thus all fact issues are deemed found in accordance with the judgment. Haynes v. Almuttar, 25 S.W.3d 667, 671 (Mo.App.2000); Rule 73.01(c). 3

Maintenance

Wife’s first seven points challenge the court’s termination of maintenance. A judgment respecting maintenance or support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable. RSMo. § 452.370.1. While it was Husband’s burden to prove changed circumstances, “we presume that the trial court’s judgment is valid and the appellant has the burden of demonstrating that the judgment is incorrect.” Lee v. Gornbein, 124 S.W.3d 52, 56 (Mo.App.2004).

Point I claims Husband “did not demonstrate that he was unable to find a suitable job after retiring and his testimony evinced a clear lack of diligence to secure new employment.” Husband, then 51, had to quit his job as a U.S. Treasury Special Agent at the end of 2004 because he no longer met the physical qualifications. His pre-retirement 2004 income was almost $110,000. At time of trial he was a self-employed rancher earning no income from that endeavor. He drew $5,413 monthly from his Treasury retirement and $31 monthly interest income.

Wife contends Husband’s retirement was not substantial evidence of a change in conditions, citing Leslie v. Leslie, 827 S.W.2d 180 (Mo. banc 1992); Hughes v. Hughes, 761 S.W.2d 274 (Mo.App.1988); and Katz v. Katz, 759 S.W.2d 857 (Mo.App.1988). Leslie and Hughes, involving voluntary retirements, held a voluntary loss of employment does not support modification. Leslie, 827 S.W.2d at 183; Hughes, 761 S.W.2d at 277. Husband’s retirement was anything but voluntary. Due to a prior surgery and continuing use of blood thinners, a medical review disqualified Husband from “activities where significant trauma is likely, such as wrestling, subduing, or restraining a resisting person,” which in turn disqualified him from Special Agent duties. Husband’s forced retirement, while not per se proving changed circumstances, was relevant in deciding if he could pay maintenance and still meet his own financial needs. See Draper v. Draper, 982 S.W.2d 289, 292 (Mo.App.1998).

Wife argues that Husband could find an accounting job, using his education and the skills from his past employment, to supplement his retirement income. Thus, Wife claims the trial court should have imputed income to Husband based upon his ability to earn. See, e.g., Leslie, 827 S.W.2d at 183. But Husband is not a CPA; he last worked as an accountant in 1977; his Treasury job did not use or develop accounting skills transferable to private employment; and if he took a different Trea *266 sury job, his income would be less than his retirement payments.

Unlike Wife, the ex-wives in Leslie, Katz, and Hughes suffered medical problems and limited employability that exacerbated their financial distress. 4 Further, their ex-husbands quit work less than two years after being ordered to pay maintenance, raising legitimate inferences they did so to avoid maintenance. There can be no such inference here. Husband paid Wife maintenance nearly seven years before he was forced into retirement.

With respect to Point II, Section 452.370.1 requires the court to “consider all financial resources of both parties, including the extent to which the reasonable expenses of either party are, or should be, shared by a spouse.” Husband testified that he and his new wife shared some expenses listed in his financial exhibits. Wife argues Husband never properly allocated those shared expenses between himself and his new wife.

Husband testified that his new wife paid for all of their food, household and living expenses, payments for two automobiles, and her orthodontic expenses. More importantly, the shared expenses may be part of changed circumstances, but they are not the whole. Husband’s income dropped after his forced medical retirement. Wife’s financial circumstances improved, since she got more money from Husband’s retirement benefit and Husband assumed her child support obligation. 5 The trial court considered these and all aspects of the parties’ finances. Since no findings were requested, all factual issues are found in accordance with the judgment. Rule 73.01(c).

Citing Gornbein, Point III complains because Husband listed his maintenance obligation in his income and expense statement. We fail to see why this was improper, or that Gornbein so holds. Gombein observes that “changed circumstances” connotes a departure from prior known conditions, which means a maintenance award anticipated by the final dissolution is no “changed circumstance” itself. 124 S.W.3d at 60. This does not mean parties should omit relevant data from financial exhibits upon which the court relies. To do so invites error or worse.

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Bluebook (online)
215 S.W.3d 263, 2007 Mo. App. LEXIS 268, 2007 WL 491685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pierce-v-pierce-moctapp-2007.