Ulmanis v. Ulmanis

23 S.W.3d 814, 2000 Mo. App. LEXIS 927, 2000 WL 764219
CourtMissouri Court of Appeals
DecidedJune 14, 2000
DocketNo. 23014
StatusPublished
Cited by12 cases

This text of 23 S.W.3d 814 (Ulmanis v. Ulmanis) 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
Ulmanis v. Ulmanis, 23 S.W.3d 814, 2000 Mo. App. LEXIS 927, 2000 WL 764219 (Mo. Ct. App. 2000).

Opinions

CROW, Presiding Judge.

Eugene Ulmanis asked the trial court to terminate his obligation to pay maintenance to his ex-wife, Holly Ulmanis, and to reduce the child support he must pay her.

The trial court denied the first request but granted the second.

Eugene1 appeals, maintaining the trial court wrongly denied the first request and should have granted a greater reduction in child support.

The parties’ marriage was dissolved November 22,1996.

Eight days earlier, on November 14, 1996, the parties signed a separation agreement (“the Agreement”). Part IV of the Agreement reads:

“The parties agree, after examining all relevant factors, including the situation of the parties at the present time, that [Eugene] shall pay maintenance to [Holly] in the sum of $2000.00 per month. The payments shall be made in advance, commencing November 1,1996, and shall be made on the first day of each month thereafter. This maintenance shall continue until terminated by action of law, remarriage of [Holly] or death of [Eugene]. This maintenance shah be NON-MODIFIABLE. EACH PARTY EXPRESSLY WAIVES THE RIGHT TO APPLY TO ANY COURT FOR A CHANGE IN THE AMOUNT OF THE MAINTENANCE HEREIN.”

The dissolution decree provides, inter alia:

“[Eugene] shall pay the sum of $2000.00 per month to [Holly] as and for maintenance, said maintenance to be NON-MODIFIABLE, beginning on November 1, 1996, and due and payable on the first day of each month thereafter ....
[The Agreement] DATED NOVEMBER 14, 1996, admitted into evidence and attached hereto, is approved and is incorporated into and made a part of this Decree, and the terms thereof are made the orders of this Court.”

On August 13, 1998, Eugene filed a three-count motion in the trial court.2 Count I pertained to maintenance. It alleged Eugene “is not financially able to pay any sum of maintenance to [Holly] due to his present financial circumstances.” Count I further pled that had the trial court been fully informed of all relevant factors pertaining to maintenance at the time it entered the dissolution decree, the court “would have found the maintenance provisions contained in the Agreement to be unconscionable.” Count I prayed the trial court to terminate Eugene’s obligation to pay maintenance to Holly “retroactive to the filing of this Motion.”

The trial court, after hearing evidence, found, inter alia:

“[Eugene’s] current gross monthly income is $3,411.37 per month (including health insurance premiums paid by his corporation of $146.79 per month) and his current reasonable monthly expenses are $4,222.01 per month, net of child support and maintenance.
At the time of the entry of the decree dissolving the marriage ... [Eugene’s] income was represented to the Court to be approximately $9,100.00 according to the Settlement Agreement and Child Support form[.]

[817]*817The Court is of the opinion based on all the evidence presented, under the present status of the law, that the maintenance is not modifiable by this Court.”

Eugene’s first point relied on reads:

“The trial court erred in denying Gene’s motion to terminate maintenance, because:

(1) under Missouri Supreme Court Rule 74.06(B)(5), it is ‘no longer equitable that the judgment remain in force’ in that the trial court found that, due to circumstances beyond his control, Gene’s current monthly gross income is $3,411.37 — nearly $6,000 less than the amount that was represented to the trial court when it entered the original decree — and Gene’s current reasonable monthly expenses are $4,222.01, rendering him incapable of paying the $2,000 per month in maintenance awarded by the original decree; and
(2) under § 452.370 RSMO., the maintenance award should be terminated on the grounds that the award exceeds Gene’s ability to pay given the trial court’s finding that Gene’s monthly expenses, absent maintenance and child support, exceed his monthly income; and
(3) the trial court had the authority to set aside the decree or terminate the maintenance award in that the separation agreement adopted in the original decree provided that maintenance, although non-modifiable, would continue ‘until terminated by action of law.’ ”

This court begins its assessment of the above point by noting it charges the trial court with error in refusing to terminate the maintenance award. The point does not aver the trial court erred in refusing to reduce the award.

The questions for decision on appeal are those stated in the points relied on; a question not there presented will be considered abandoned on appeal and no longer an issue in the case. Pruellage v. De Seaton Corp., 380 S.W.2d 403, 405[3] (Mo.1964); Schmidt v. Warner, 955 S.W.2d 577, 583[5] (Mo.App. S.D.1997). Consequently, this court, in addressing Eugene’s first point, shall decide only whether the trial court, for the reasons enumerated in the point, erred in failing to terminate the maintenance award. Whether the trial court should have reduced the award is not excogitated.

Paragraph 1 of Eugene’s first point is premised on the assumption that Rule 74.06(b)(5), Missouri Rules of Civil Procedure (2000), authorized the trial court to terminate maintenance.

Rule 74.06 has remained unchanged since January 1, 1988. Paragraph “(b)” thereof reads, in pertinent part:

“On motion and upon such terms as are just, the court may relieve a party ... from a final judgment or order for the following reasons: ... (5) ... it is no longer equitable that the judgment remain in force.”

As henceforth explained, this court holds Rule 74.06(b)(5) conferred no authority on the trial court to terminate Eugene’s duty to pay Holly maintenance.

Section 452.370.1, RSMo Cum.Supp. 1998, reads, in pertinent part:

“Except as otherwise provided in subsection 6 of section 452.325,[3] 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 unreasonable.”

Termination of maintenance was treated as a modification of maintenance in McDaniel v. McDaniel, 982 S.W.2d 729, 733 (Mo.App. E.D.1998); Myers v. Myers, 950 S.W.2d 937, 938 (Mo.App. S.D.1997); [818]*818Beeler v. Beeler, 820 S.W.2d 657, 660-61 (Mo.App. W.D.1991). In Beeler, the Western District of this Court, citing § 452.370, affirmed a judgment terminating maintenance. The opinion said: “A [maintenance award in a] decree of dissolution can be modified only if the changes are so continuing and so substantial as to make the original terms of the decree unreasonable.” Id. at 661.

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Cite This Page — Counsel Stack

Bluebook (online)
23 S.W.3d 814, 2000 Mo. App. LEXIS 927, 2000 WL 764219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ulmanis-v-ulmanis-moctapp-2000.