Adams v. Adams

• Decision Date: 31 July 2001
• Citation: 51 S.W.3d 541
• Parties: (Mo.App. W.D. 2001) Georgia Phyliss Adams, Appellant v. Bobby Earl Adams, Respondent. WD58981 0
• Court: Missouri Court of Appeals

51 S.W.3d 541 (Mo.App. W.D. 2001)

Georgia Phyliss Adams, Appellant v. Bobby Earl Adams, Respondent.

WD58981

Missouri Court of Appeals Western District

07/31/2001

Appeal From: Circuit Court of Callaway County, Hon. Clifford Eugene Hamilton, Jr.

Counsel for Appellant: Thomas M. Dunlap

Counsel for Respondent: William D. Rotts

Opinion Summary:

Georgia Phyliss Adams ("Wife") appeals the court's judgment modifying the 1995 judgment dissolving her marriage to Respondent Bobby Earl Adams ("Husband") by terminating Husband's maintenance obligation.

Division holds: (1) A decrease in Husband's yearly income from $45,000.00 to $17,340.00, due to his forced retirement, accompanied by Wife beginning to receive Social Security benefits, was sufficient to support the court's finding that a significant change had occurred and it was no longer reasonable for Husband to pay $1,100.00 per month in maintenance to Wife. The evidence reflected that Husband had reasonable monthly expenses of $1,303.00, and Wife's guardian testified that Wife's income was meeting her expenses.

(2) The record does not reflect that the court failed to adequately consider the Social Security income of Husband's current wife where her expenses were not included in his income and expense statement.

(3) Wife's failure to attempt to find gainful employment, although apparently able to do so, could have supported the court's finding that a significant change had occurred and that maintenance was no longer reasonable.

(4) The court reasonably could have imputed income to Wife due to her failure to attempt to obtain gainful employment.

(5) While the combination of the financial condition of the parties and the fact that Husband necessitated the action by contemptuously failing to pay the court ordered maintenance may well have been sufficient to support an award of attorney's fees, the trial court's ruling to the contrary was not "'so arbitrary and unreasonable so as to shock one's sense of justice.'"

Newton, P.J., and Holliger, J., concur.

Joseph M. Ellis, Judge

Appellant Georgia Phyliss Adams ("Wife") appeals the judgment entered in the Circuit Court of Callaway County modifying the 1995 judgment dissolving her marriage to Respondent Bobby Earl Adams ("Husband") by terminating Husband's maintenance obligation.

On April 10, 1995, the circuit court granted Husband and Wife a legal separation. At that time, Husband was employed as a salesman by the Macklanburg-Duncan Company and was earning $45,000.00 per year, and Wife was not employed. The circuit court found that Wife lacked sufficient property to provide for her reasonable needs of $1,100.00 per month and that she was unable to support herself through appropriate employment. Based on those findings, the court ordered Husband to pay $1,100.00 per month in maintenance to Wife. On August 8, 1995, the circuit court entered its Judgment and Order of Dissolution of Marriage continuing the previously ordered maintenance.

On August 31, 1995, Husband filed a motion to modify the decree as to maintenance. That motion was denied on October 21, 1996.

In November 1998, the Macklanburg-Duncan Company decided to convert to an electronic purchasing system and to cease using salespeople. Husband was told that he could either retire or be terminated. Husband retired on January 1, 1999, at the age of 64. In conjunction with his retirement, Husband received $82,000.00 from his retirement plan.¹

In accordance with the original dissolution decree, Wife received half of that amount as part of the distribution of marital property. After finding out that he would have to retire, Husband ceased paying maintenance on December 16, 1998.

Husband obtained a seasonal job with Westlake Hardware in Fulton, Missouri, in March 1999. This seasonal work would last an average of three months per year. In that position, Husband would load dirt, wait on customers, unload trucks, move flowers, and sweep. Husband was paid $10.00 per hour and would average 40 hours per week. In 1999, Husband worked two weeks in March, four weeks in April, four weeks in May, and two weeks in June.

Husband has a progressive and degenerative heart condition. In October 1999, Husband underwent a successful angioplasty operation to treat his angina. At the time of the hearing, Husband had recovered from his surgery and his condition was not limiting his activity at work.

Husband went back to work at Westlake Hardware in March 2000 and was still working there at the time of the hearing in May 2000. At the time of the hearing, in addition to his income from the hardware store, Husband was receiving $1,219.00 from Social Security and a pension of $72.00 per month.

After the divorce, Wife moved to Edmund, Oklahoma, where she lived in a rental house. After moving to Oklahoma, Wife worked for three to four months at three different jobs. In one job, Wife hung advertisements on doorknobs. In her second job, Wife worked at a children's store. In her final position, Wife worked at a doll booth at Christmas time.

In July 1999, Wife was evicted from her home for failure to pay her rent. After she was evicted, Wife went to live with her sister, Dorothy McLean, for eight months. Wife was not employed while she was living with her sister. At some point, Wife's automobile was repossessed for failure to make payments. While Wife was living with her, Ms. McLean filed a motion to be made Wife's legal guardian because of Wife's refusal to pursue Social Security benefits or to file legal action against Husband for failing to pay maintenance. On December 22, 1999, the District Court of Lincoln County, Oklahoma, appointed Ms. McLean to be the limited guardian and conservator for Wife. Ms. McLean then successfully applied for Social Security benefits on behalf of Wife.

In December 1999, Wife began receiving $557.00 per month from Social Security. She was also receiving annuity payments of $70.00 per month.

On February 22, 2000, Wife filed a petition to garnish Husband's bank account to recover the unpaid maintenance.² That garnishment action failed because the bank account Wife attempted to garnish was held jointly by Husband and his second wife.

On March 1, 2000, Wife moved out of her sister's house and into a duplex in Oklahoma City, Oklahoma. The rent on the duplex was $300.00 per month.

On March 2, 2000, Wife filed a Motion for Show Cause Order and for Contempt against Husband for his failure to pay maintenance.³ In that motion, Wife requested an award of attorney's fees and costs. On April 18, 2000, Husband answered that motion and filed a counter-motion asking the court to modify the judgment of dissolution by terminating his maintenance obligation. On May 1, 2000, Wife filed her answer to Husband's counter-motion and requested attorney's fees incurred in opposing that motion. A hearing on both motions was conducted on May 11, 2000.

On May 12, 2000, the circuit court entered its Judgment and Order of Modification. The circuit court found that husband had intentionally and contemptuously failed to pay the maintenance previously ordered by the court and was in arrears $21,400.00. The court ordered Husband to pay that amount within ten days or be committed to the Callaway County Jail. In addition, the circuit court found that "there have been substantial and changed circumstances with regard to the parties which warrants a modification of the Decree of Dissolution as between them." Based on that finding, the circuit court terminated Husband's maintenance obligation.

On June 9, 2000, Wife filed a Motion to Amend, Reopen, Modify, or Correct Judgment. In that motion, Wife alleged that the trial court had improperly modified the dissolution judgment and terminated maintenance because Husband had not established a change in circumstances sufficient to warrant modification. Wife also asked the court to address her request for attorney's fees in the action. The circuit court conducted a hearing on Wife's motion on July 3, 2000. On August 18, 2000, the trial court allowed Wife to present evidence related to her request for attorney's fees, and on August 21, 2000, the circuit court entered its order denying Wife's request for attorney's fees.

On appeal, Wife challenges the circuit court's modification of the dissolution judgment to terminate Husband's maintenance obligation. She also contests the circuit court's decision to deny her attorney's fees.

Wife's first three points all make the same basic argument. In her first point, Wife claims the trial court erred in terminating maintenance because the evidence failed to sufficiently establish a substantial and continuing change in circumstances rendering the prior award unreasonable. In her second point, Wife claims that the trial court erred in terminating maintenance because there was insufficient evidence to support the judgment for the same reasons stated in her first point. Finally, in her third point, Wife argues that the trial court erred in terminating maintenance because the judgment was against the weight of the evidence for the same reasons stated in her first point.⁴ Accordingly, we will address all of these points together.

In reviewing the trial court's decision in an action to modify or terminate a maintenance award, we will uphold the court's judgment unless the judgment is not supported by the evidence, is against the weight of the evidence, or erroneously declares or applies the law. Smillie v. Smillie, 989 S.W.2d 619, 621-22 (Mo. App. S.D. 1999) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). We view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the judgment and disregard all evidence and inferences to the contrary. Hartzell v. Hartzell, 976 S.W.2d 624, 626 (Mo. App. E.D. 1998). "[D]eference is given to the trial court's greater opportunity to judge the credibility of witnesses and the weight given opinion evidence." McDaniel v....