Bradley v. Bradley, WD

• Decision Date: 02 August 1994
• Docket Number: No. WD,WD
• Citation: 880 S.W.2d 376
• Parties: Judy Ann BRADLEY, Respondent, v. J.T. BRADLEY, Appellant. 48791.
• Court: Missouri Court of Appeals

Page 376

880 S.W.2d 376

Judy Ann BRADLEY, Respondent, v. J.T. BRADLEY, Appellant.

No. WD 48791.

Missouri Court of Appeals Western District.

Aug. 2, 1994.

Michael P. Riley, Jefferson City, for appellant.

L.G. Copeland, Columbia, for respondent.

Before FENNER, P.J., and LOWENSTEIN and SPINDEN, JJ.

FENNER, Presiding Judge.

Appellant, J.T. Bradley, appeals the judgment of the trial court finding him in contempt and denying his motion to modify his maintenance obligation.

The marriage of J.T. Bradley (husband) and respondent, Judy Ann Bradley (wife), was dissolved by order of the Circuit Court of Boone County on February 5, 1990, after thirty years and two children. At the time of the dissolution of their marriage the parties entered into a marital settlement and separation agreement. Under the terms of the settlement agreement husband agreed to pay wife the sum of $1,500 per month as periodic maintenance. The agreement provided that its terms were not to be incorporated into the decree of dissolution except for the provisions concerning maintenance and attorney fees. The agreement of the parties was approved by the court and set out in the court's order of dissolution.

On June 1, 1993, husband filed a motion to modify seeking to have his maintenance obligation terminated. On July 6, 1993, wife filed a counter-motion to modify seeking to have maintenance increased. Thereafter on October 4, 1993, wife filed a motion seeking to have husband found in contempt for failing to pay maintenance as ordered in the dissolution decree. On November 4, 1993, the court denied both parties' motions to modify and found husband in contempt for failure to pay maintenance as ordered. Husband appeals the court's order finding him in contempt and the denial of his motion to modify.

Our standard of review is to sustain the judgment of the trial court unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

In his first point on appeal, husband argues that the trial court lacked subject matter jurisdiction to find him in contempt of court for failing to pay maintenance. Husband argues that the award of maintenance to wife was contractual, not decretal, and therefore the award of maintenance was not subject to enforcement by contempt.

Contractual maintenance arises where the maintenance provisions are agreed to by the parties in the separation agreement and are agreed not to be incorporated into the terms of the court's decree. Cates v. Cates, 819 S.W.2d 731, 737 (Mo. banc 1991). Contractual maintenance is enforceable by a separate action for breach of contract and it is not modifiable by the court. Id.

Decretal maintenance is maintenance awarded by the court. Decretal maintenance can either be in the absence of a settlement agreement or pursuant to a settlement agreement. Id. Unless the parties otherwise agree, decretal maintenance is modifiable by the court and subject to enforcement by the court. Id.; § 452.325.6, RSMo 1986.

In the case at bar, the parties specifically agreed in their marital settlement and separation agreement, in pertinent part, as follows:

It is the intent of the parties that the terms of this Agreement shall not be incorporated in any Decree of Dissolution of Marriage, except for the provisions concerning maintenance and attorney fees.

The terms of the agreement were included in the court's decree which provided, in regard to maintenance, as follows:

Respondent agrees to pay Petitioner $1,500 per month as periodic maintenance until Petitioner remarries or cohabits with a member of the opposite sex, or upon the death of the Petitioner, or upon the death of Respondent, whichever first occurs. This maintenance shall be taxable to the Petitioner and deductible to the Respondent.

Notwithstanding any other provision in this Agreement, maintenance shall be modifiable to reflect changed circumstances according to then applicable Missouri law.

Furthermore, the court expressly ordered in its decree, in pertinent part, as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED by this Court that Respondent shall pay Petitioner maintenance in the sum of $1,500.00 per month.

Husband and wife stipulated within their agreement that the only terms to be incorporated into the court's decree were those relating to maintenance and attorney fees. The maintenance as agreed between the parties was set forth in the court's decree and specifically ordered by the court as part of its judgment.

Maintenance in the case at bar was decretal, subject to modification, as agreed between the parties, and subject to enforcement by contempt as part of the court's judgment.

Husband's first point is denied.

In his second point, husband argues that the trial court erred in denying his motion to modify maintenance because there has been a substantial and continuing change of circumstances which make the award of $1,500 per month unreasonable. Husband argues that his income has decreased and he is not able to meet his monthly...