Berman v. Berman, 49452

• Decision Date: 10 December 1985
• Docket Number: No. 49452,49452
• Citation: 701 S.W.2d 781
• Parties: Nikki S. BERMAN, Petitioner, v. Howard J. BERMAN, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 781

701 S.W.2d 781

Nikki S. BERMAN, Petitioner, v. Howard J. BERMAN, Respondent-Appellant.

No. 49452.

Missouri Court of Appeals,

Eastern District,

Division Four.

Dec. 10, 1985.

Bertram Cooper and Mary E. Davidson, St. Louis, for respondent-appellant.

Theodore Schechter, Clayton, for petitioner.

PUDLOWSKI, Judge.

On January 7, 1982, wife obtained by default a Decree of Dissolution. Incorporated into the Decree were the terms of a Separation Agreement, prepared by wife's attorney and executed by both parties. Alleging that the husband refused to pay any more of her medical expenses incurred after the dissolution as per the Separation Agreement, the wife filed a Motion to Modify to Increase Maintenance (later voluntarily dismissed), Motion for Assignment of Earnings, Motion to Determine Amount Owing and for Execution, Motion for Attorney's Fees and Costs, and Motion for Contempt. Husband then filed a Motion to Modify or Terminate Maintenance and a Petition to Set Aside the Decree of Dissolution.

The Court heard the cause on July 26, 1984, and on October 1, 1984, granted wife's motions (save the Motion for Contempt), holding that the Separation Agreement obligated the husband to pay all of the wife's medical expenses, including those incurred after the Dissolution. The court denied the husband's motions, holding that the maintenance provided for in the Separation Agreement was contractual and non-modifiable (and even if modifiable, husband failed to present evidence warranting termination).

Twelve days later the husband filed a Motion for New Trial, and an Alternative Motion to Open the Judgment, Take Additional Testimony, Amend Findings of Fact, and Direct Entry of a New Judgment. Attached was an affidavit from husband alleging that on August 24, 1984, after the hearing but before the judgment, he became totally disabled, was temporarily hospitalized, lost his practice, and has since been unable to pursue his profession.

The court overruled the motion without evidentiary hearing, and husband appeals, alleging the following:

1. The court erred in holding that maintenance was contractual and non-modifiable, surviving the death of the husband.

2. The court erred in holding that if the maintenance were modifiable husband did not show a sufficient change in circumstances to warrant termination.

3. The court erred in holding that husband was obligated to pay wife's future medical expenses.

4. The court erred in holding that $20,255.28 was due under the decree since this sum was not supported by substantial evidence.

Our scope of review is limited. We will sustain the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.1976).

Maintenance

Husband first argues that the trial court erred in holding the maintenance provision non-modifiable. In the parties' dissolution decree it was ordered that the parties perform the terms of the separation agreement, incorporated and made a part of the decree. The separation agreement contained the following maintenance provision:

1. Respondent shall pay to petitioner as and for maintenance the sum of Two Thousand Two Hundred Fifty Dollars ($2,250.00) per month for the first twelve (12) months following the dissolution of marriage and Two Thousand Eighty Dollars ($2,080.00) per month thereafter until the death or remarriage of the petitioner herein.

It is the wife's contention that this paragraph created contractual, non-modifiable maintenance, while husband argues that the paragraph created decretal, modifiable maintenance.

RSMo § 452.325 (1978), sets forth the law governing separation agreements:

2. In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except terms providing for the custody, support, and visitation of children, are binding upon the court unless it finds after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.

4. If the court finds that the separation agreement is not unconscionable as to support maintenance, and property:

(1) Unless the separation agreement provides to the contrary, its terms shall be set forth in the decree of dissolution or legal separation and the parties shall be ordered to perform them;

5. Terms of the agreement set forth in the decree are enforceable by all remedies available for the enforcement of a judgment, and the court may punish any party who willfully violates its decree to the same extent as is provided by law for contempt of the court in any other suit or proceeding cognizable by the court.

6. Except for terms concerning the support, custody or visitation of children, the decree may expressly preclude or limit modification of terms set forth in the decree if the separation agreement so provides.

Case law interpreting this statute clearly establishes that unless a separation agreement expressly provides that any of its terms are not to be incorporated into the decree it becomes part of the decree and is enforceable by the court. Once incorporated, the agreement is then subject to modification by the court unless the agreement expressly limits or precludes modification.

In In re Marriage of Haggard, 585 S.W.2d 480 (Mo.1979), a husband and wife's dissolution decree incorporated the terms of a separation agreement. The agreement contained no express provision that any of its terms were not to be incorporated into the decree. According to its terms, husband would pay maintenance of $275.00 per month. He fell behind in payments and, pursuant to her motion, the wife was granted execution and garnishment of the decree. The Missouri Supreme Court affirmed, holding that since the maintenance provision was not a private contract, it was enforceable as a judgment. The court discussed the applicability of § 452.325 and stated that the statute provides for two categories of maintenance when a separation agreement is involved:

The parties can keep the maintenance completely a private contractual agreement by expressly so providing in the terms of a separation agreement. This would correspond to the former contractual support. Alternatively, the parties can permit the maintenance agreement to be included in the decree and thus be enforceable as a judgment. This would seem to correspond, at least in part, to the former decretal alimony.

Since the maintenance provision at issue was not expressly excluded from the decree, it became part of the decree and under § 452.325.5 was enforceable as a judgment.

This court in Brucker v. Brucker, 611 S.W.2d 293 (Mo.App.1980) followed the reasoning of Haggard. A husband and wife's dissolution decree incorporated several terms of a separation agreement, including a provision requiring the husband to pay maintenance of $473.30 per month. The agreement contained no exclusionary language. We reversed the lower court's denial of wife's motion to modify to increase maintenance and held that the separation agreement was not a private contract but was modifiable by the trial court.

We held that in determining whether the maintenance provision is contractual or modifiable the trial courts should no longer attempt to interpret the parties intention; rather, the express intent of the parties governs. In the absence of an express exclusion in the separation agreement maintenance provision is modifiable by the court:

If the parties had wanted to prevent modification of the decree they should have incorporated an express statement to that effect in their separation agreement which in turn would 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, 611 S.W.2d at 296. See also Bryson v. Bryson, 624 S.W.2d 92 (Mo.App.1981), Desloge v. Desloge, 617 S.W.2d 486 (Mo.App.1981).

The rationale for requiring express exclusionary language in a separation agreement if not all of its terms are to be incorporated into the dissolution decree was explained in Potter v. Potter, 621 S.W.2d 123 (Mo.App.1981):

The provision means, simply, that spouses may settle their property rights between them by agreement rather than by the method of judicial division under § 452.330--but if they do, the expression of that assent must be written. The rationale is to avoid dispute and manifests once again a transcendent purpose of the Dissolution of Marriage Act to avoid litigation beyond the dissolution proceeding, itself.

621 S.W.2d at 125 (citing Wilhoit v. Wilhoit, 599 S.W.2d 74, 77) (Mo.App.1980).

Wife does not dispute the law as established by these cases, she only argues that it would be unjust to reject the trial court's conclusion that the overwhelming weight of the evidence showed that maintenance was intended to be non-modifiable. This argument fails in several respects. Although the wife testified that she understood the provision to be non-modifiable and her former attorney testified that he drafted the separation agreement with the intention of providing for contractual, non-modifiable maintenance, case law renders these factors irrelevant. The intentions of the parties are determined by the express provisions of the agreement. Brucker, 611 S.W.2d 293, 296. Wife argues that determining intent by only looking at what is expressly provided allows form triumph over substance. Not so. Requiring express language in the agreement furthers the purpose of the statute, i.e., eliminating the puzzle of determining the intent of the parties, thereby avoiding further litigation Potter, 621 S.W.2d 125.

A review of statutory authority and case law interpreting the statute establishes that (1) if any terms of a...