Beeler v. Beeler, WD
| Decision Date | 19 November 1991 |
| Docket Number | No. WD,WD |
| Citation | 820 S.W.2d 657 |
| Parties | Connie Jo BEELER, Appellant/Respondent, v. Milton Lee BEELER, Respondent/Appellant. 44229. |
| Court | Missouri Court of Appeals |
Jean E. Goldstein, Columbia, for appellant-respondent.
Marvin Tofle, Columbia, for respondent-appellant.
Before BERREY, P.J., and ULRICH and HANNA, JJ.
Wife appeals the trial court's termination of maintenance, and husband cross appeals contending child support payments should not have been increased. He also contends the trial court erred in its determination of when the increased child support should be effective, as well as when the termination of the maintenance payments should begin. Judgment affirmed.
Connie Jo Beeler (Connie) and Milton Lee Beeler (Milton) were married on May 29, 1970. There were two children born of the marriage, John and Kelly. Connie had a child prior to the marriage named Jerry, and Milton adopted Jerry when Jerry was in junior high school.
On October 1, 1984, the parties were divorced. At the time of the divorce, the parties entered into a separation agreement. The agreement provided Connie should be awarded custody of the three children. It also provided Connie would receive $125 per child every month in child support as well as $600 per month maintenance. Additionally, Milton was to be responsible for the children's medical and dental bills. The separation agreement was incorporated into the divorce decree.
On May 22, 1989, Milton filed a motion to modify the decree of dissolution to terminate his obligation to pay maintenance. Connie filed a motion to dismiss, alleging the maintenance award was contractual and, thus, non-modifiable. Additionally, she filed a counter motion to modify child support and to enforce the decree as to payment of medical expenses. The motion to dismiss was overruled.
The hearing on the motions was held on November 6, 1990. After hearing the evidence, the judge terminated the maintenance award, increased the child support award for Kelly effective August 22, 1989, and terminated child support for John effective December 1, 1989.
The issues on appeal are many. Connie first contends the trial court erred in terminating the maintenance award. She also contends the child support for John should have been terminated as of July 1990, rather than December 1, 1989. And finally she contends the trial court erred in failing to award her attorney fees.
On cross-appeal Milton raises six issues. He first contends the trial court erred in increasing the child support award for Kelly and further erred in ordering the increase take effect August 22, 1989, rather than November 6, 1989, the date of the modification order. Milton also contends the trial court erred in failing to credit him for the child support paid for Jerry after Jerry was emancipated. Additionally, he alleges the trial court erred in failing to order the termination of maintenance to take effect on the date the motion to modify was filed. He contends the trial court erred in determining he breached the decretal agreement to pay the children's medical expenses. And finally, he contends the trial court erred in not awarding him attorney fees.
We first address Connie's contention the trial court erred in terminating the maintenance award. She charges the award was contractual and non-modifiable. Connie relies specifically on the language in the agreement that the "maintenance award shall be deemed contractual" to support her belief the maintenance was non-modifiable. Milton responds contending the judge did not misapply the law and, thus, the decision of the trial court should not be overruled. We agree.
Under § 452.325, RSMo 1986, three types of maintenance are possible:
1. Decretal maintenance which is ordered by the court;
2. Private contractual maintenance which is agreed to by the parties, but is not incorporated into the decree and can be modified only by agreement of the parties; and
3. Separation agreement decretal maintenance which is maintenance agreed to by the parties and incorporated in the decree. This may be modified unless the parties provide that it may not be.
§ 452.325, RSMo 1986; Bryson v. Bryson, 624 S.W.2d 92, 94-95 (Mo.App.1981). The parties in this case agreed to separation agreement decretal maintenance. The maintenance agreed upon in the separation agreement was incorporated into the decree.
The case law and statutes indicate separation agreement decretal maintenance is modifiable unless the parties expressly agree it is not modifiable. § 452.325.6, RSMo 1986. In Brucker v. Brucker, 611 S.W.2d 293 (Mo.App.1980), the court held maintenance included in a decree by incorporation of the separation agreement as provided in § 452.325.4(1), RSMo 1986, may be modified unless the parties provide specifically in the separation agreement that modification is precluded or limited. Id. at 295. Case law further provides guidance for creating a non-modifiable maintenance agreement. See Desloge v. Desloge, 617 S.W.2d 486 (Mo.App.1981). There the court stated if the parties intend to make the maintenance contractual and non-modifiable, the parties must expressly agree that the maintenance terms are not to be incorporated in the court's decree. Id. at 489. In this case, the maintenance award was incorporated into the decree.
Appellant cites Bryson v. Bryson, 624 S.W.2d 92, 95 (Mo.App.1981), to support her position that "contractual modification" specifically means the maintenance award is non-modifiable. Appellant's reliance on Bryson is misplaced. While Bryson discusses contractual maintenance, the ruling in no way intimates contractual maintenance in and of itself renders the maintenance non-modifiable. In Bryson the court was faced with what the trial court viewed as a situation of an uncertain maintenance amount. That is, the maintenance had been set out in the decree as a percentage of the husband's income or a set amount, whichever was greater. The trial court determined the award was void because it lacked sufficiency and certainty. The appellate court in its opinion reiterated that under separation agreement decretal maintenance, the parties must provide specifically in the separation agreement that modification is precluded or limited. Id. The court discussed at great length how the separation agreement could be included in the decree and then be enforceable as a judgement. Bryson 624 S.W.2d at 97. However, while Bryson is instructive regarding maintenance agreements, it is not dispositive with regard to whether a contractual agreement is automatically non-modifiable. In Brucker v. Brucker, 611 S.W.2d 293 (Mo.App.1980), the court recognized if the parties wanted to prevent future modifications of the award they should have incorporated an express statement to that effect in their separation agreement which in turn could have been incorporated into the decree. "The parties failure to express a statement preventing modification gave the court the jurisdiction to proceed on the motion to modify." Brucker v. Brucker, 611 S.W.2d at 296. Additionally, § 452.325.6, RSMo 1986, suggests an express exclusion to modification is necessary. Connie contends using the word "contractual" is express enough in nature to demonstrate the maintenance is non-modifiable. We disagree. The case law is clear in suggesting something more is necessary.
We affirm the trial court's decision finding the maintenance award modifiable. Appellant's Point I is denied.
In her second argument, the wife suggests even if the maintenance award was modifiable, there was insufficient evidence to support the trial court's finding of a continuing and substantial change in circumstances.
"Our review of the modification order is limited to determining whether it is supported by substantial evidence; whether it is against the weight of the evidence or whether it erroneously declares or applies the law." Markowitz v. Markowitz, 736 S.W.2d 463, 465 (Mo.App.1987). 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. § 452.370, RSMo 1986.
Upon our review, we find there is substantial evidence to support the trial court's decision to modify the maintenance portion of the decree. Since the date of the dissolution, Connie's financial condition has improved dramatically. She sold the family home and bought a farm in Iowa, which she owns without a mortgage. She also owns a business, Hopkins bar, which pays for its expenses and has approximately $5,000 in equity. Additionally, as a result of her son Jerry's death, Connie received $25,000 from the Marine Corps and an additional $25,000 from Jerry's insurance company. All of this suggests a significant change in circumstances.
An additional factor to be considered is the wife's apparent lack of desire for full-time employment. In Oldfield v. Oldfield, 767 S.W.2d 134, (Mo.App.1989), the court held a wife receiving maintenance is under a continuing duty to exert reasonable efforts to attain self-sufficiency and will not be permitted to benefit from inaction. Id. at 136. In the case at bar, the evidence is clear the wife has not made a good faith effort to become self-sufficient. At trial the wife stated she felt no need to get a full-time job and would only take a full-time job if absolutely necessary. She further stated she was not interested in retraining to improve her employment opportunities. There is substantial evidence to support the trial court's decision to terminate maintenance. We reject the wife's second point on appeal.
In her third point on appeal, the wife contends the trial court erred in terminating child support for her son John, effective December 1, 1989. Section 452.340(5), RSMo Supp.1990, provides the child support...
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