Adkins v. Adkins, 22933
| Decision Date | 01 June 1959 |
| Docket Number | No. 22933,22933 |
| Citation | 325 S.W.2d 364 |
| Parties | Dorothy K. ADKINS, Respondent, v. William L. ADKINS, Appellant. |
| Court | Missouri Court of Appeals |
Richard P. Sprinkle, Sprinkle, Carter, Sprinkle & Larson, Kansas City, for appellant.
Richard E. Brown, Raytown, for respondent.
MAUGHMER, Commissioner.
Divorced wife's motion to modify alimony award was sustained. Judgment increasing such monthly payments from $1 to $100 was entered. The former husband has duly perfected an appeal.
Dorothy K. and William L. Adkins were married in 1934. On September 16, 1955, the wife was granted a default decree of divorce in the Circuit Court of Jackson County, Missouri, at Independence. She was given custody of the two minor sons Patrick and Michael, now 17 and 12 years of age. Mrs. Adkins was awarded alimony in the amount of $1 per month and $100 per month as child support. Defendant received the privilege of reasonable visitation with his sons.
At the time of the divorce decree Mr. Adkins worked as a journeyman painter. His earnings in 1955, based upon the evidence at the second hearing, were more than $100, but less than $150 per week--$125 weekly would total $540 per month. Mrs. Adkins, in 1955, was employed at Bendix Aviation. She earned $75 to $80 per week or some $345 monthly. If we deduct the alimony and child support payments from his earnings and add same to hers, their respective monthly incomes stand at $439 and $446. Neither has any additional sources of income.
It seems that Mr. Adkins was ill for a time in 1957 and did not keep up his payments. Mrs. Adkins refused on one occasion to accept his check for $230, which he claimed would have brought his payments up to date. It is a fair statement from the evidence, we think, to say that defendant has fully paid the $101 per month, which he was obligated to pay and in addition: paid $4 per month additional alimony, he being under the impression the judgment was for $5 instead of $1; paid her an additional $25 per week for three or four months in the fall of 1957; paid the premiums on their sons' life insurance and during the six months prior to the modification hearing, bought $200 worth of clothing for the boys.
Mrs. Adkins testified that her expenses in 1955, ranged from $400 to $500 per month. She had prepared and there was received in evidence, compilations of her actual monthly expenses for January, February, March and April, 1958. These monthly expenditures varied from $468.15 to $532.80. Among the items listed for March and April were: $100 'payment on farm' and tractor battery, paint and refrigerator for farm. Further reference will be made to this farm.
Mrs. Adkins has continued to work as an electrical assembler. Her wages have increased from $80 per week in 1955 to $94 per week in 1958--which amounts to a monthly increase of from $345 to $407. Mrs. Adkins worked only eight months in 1957. She stated that she was 'laid off' for one whole year during 1956-57. Mr. Adkins was ill and off work for a period during the same year. His earned compensation rose from $125 per week in 1955 to $141 per week in 1958,--monthly from $540 to $611. Again, deducting the alimony and child support payments from his earnings and adding them to hers, gives us totals of $510 and $508. At present he also receives an expense allowance of $50 per week.
Mrs. Adkins asserts that her health has deteriorated; that her legs swell when she remains seated for long periods at the work bench, and that on occasions she has stopped working because of such condition. She consulted Dr. Walter H. Graham for the first time on March 4, 1958, just one month before filing the present petition. His bill for services to the date of trial was $32. He thought she needed an operation, which would cost $300. However, the patient, who is now 40 years of age, continued working. The former husband, too, is becoming older and he, too, was absent from work due to illness in 1957.
On November 1, 1957, Mrs. Adkins bought a 100 acre Kansas farm from her mother and stepfather for $6,000 and obligated herself to make payments thereon at the rate of $100 monthly. She included two such payments as a part of her itemized living expenses. She stated that because of her part time unemployment in 1957, she has been forced to expend some $1,200 in savings which she had accumulated at the time of the divorce.
Under this evidence the trial court decreed an increase in alimony from $1 to $100 monthly. Assuming both parties continue to work and at their current earnings, plaintiff's monthly income with the child support and increased alimony allowance would total $607, while defendant's would drop to $411.
Defendant-husband and appellant makes one assignment of error namely, that the court erred in sustaining the motion to modify because the judgment is against the law under the evidence, shows bias and prejudice, and is an abuse of judicial discretion.
This being an equity case, we review the record de novo. We make this review with deference to the findings of the trial chancellor on irreconcilable, directly conflicting, verbal testimony on fact issues and his findings are usually sustained unless contrary to the overwhelming weight of the evidence. Creek v. Union Nat. Bank in Kansas City, Mo., 266 S.W.2d 737, 747; McCoy v. McCoy, 360 Mo. 199, 227 S.W.2d 698, 703, 704; Weakley v Weakley, 355 Mo. 882, 198 S.W.2d 699, 702. To fully determine this appeal we must decide (1) Was there such a change in circumstances since the divorce as would justify modification of the alimony judgment, and (2) Did the increased alimony allowance amount to an abuse of judicial discretion?
Alimony is usually allowed to an 'innocent and injured' wife where it is reasonable to do so. McCormack v. McCormack, Mo.App., 238 S.W.2d 858, 862, 863. Such an award is based upon the principle that it is the duty of the husband, in so far as he is able, to contribute such amount as will, supplemented by her earnings and other income, if any, enable her to maintain a standard of living measuring up to that existing at the time of the divorce. Harriman v. Harriman, Mo.App., 281 S.W.2d 566, 570. Almost, if not invariably, certain facts enter into determination if alimony is to be granted and if so, how much; the length of the marriage, the financial position of the parties, their respective ages, health, education and employment or business experience, their actual present incomes--earned and unearned--and whether there are minor children. Simon v. Simon, Mo., 248 S.W.2d 560, 568.
It is a firmly established legal principle that an alimony judgment, like any other judgment, is res judicata as to circumstances existing at the time of its rendition. Jourdan v. Jourdan, Mo.App., 251 S.W.2d 380, 382. Authority for modification is dependent upon proof of a change in condition and the burden of proving such change rests upon movant. Schulte v. Schulte, Mo., 140 S.W.2d 51; Shapiro v. Shapiro, Mo.App., 238 S.W.2d 886, 889; Samland v. Samland, Mo.App., 277 S.W.2d 880, 881; Shilkett v. Shilkett, Mo.App., 285 S.W.2d 67, 68.
In Bowers' 'Judicial Discretion of Trial Court', Sec. 12, page 20, we find the...
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