Brooks v. Brooks, WD

• Decision Date: 16 December 1997
• Docket Number: No. WD,WD
• Citation: 957 S.W.2d 783
• Parties: Patricia Ann McVicker BROOKS, Respondent, v. Charles Stephen BROOKS, Appellant. 53621.
• Court: Missouri Court of Appeals

Page 783

957 S.W.2d 783

Patricia Ann McVicker BROOKS, Respondent, v. Charles Stephen BROOKS, Appellant.

No. WD 53621.

Missouri Court of Appeals Western District.

Dec. 16, 1997.

Betty K. Wilson, Columbia, for respondent.

Milt Harper, Columbia, for appellant.

Before SPINDEN, P.J., and LAURA DENVIR STITH and EDWIN H. SMITH, JJ.

EDWIN H. SMITH, Judge.

Charles Stephen Brooks appeals from the judgment of the Circuit Court of Boone County modifying his maintenance obligation to the respondent, Patricia Ann McVicker Brooks.

The marriage of the parties was dissolved on July 23, 1992, in the Circuit Court of Boone County, wherein respondent, inter alia, was awarded maintenance from appellant in the amount of $1,200. On September 18, 1995, respondent filed a motion to modify for increased child support, a change in the allocation of the tax exemption for one of the parties' minor children, and for attorney fees. Appellant filed an answer and a counter-motion seeking a termination of, or in the alternative, a reduction of maintenance and an accounting for child support paid. On October 21, 1996, after hearing evidence, the Honorable Gene Hamilton entered judgment modifying the court's dissolution decree, which judgment, inter alia, reduced the maintenance from appellant to respondent to $615 per month.

On appeal, appellant claims that the trial court erred in ordering maintenance of $615 in that in calculating its award, it erroneously determined the amount of respondent's reasonable and allowable monthly expenses. ¹

We reverse and remand.

Facts

The marriage of Patricia Ann McVicker Brooks, respondent, and Charles Stephen Brooks, appellant, was dissolved on July 23, 1992, in the Circuit Court of Boone County with appellant ordered, inter alia, to pay child support to respondent in the amount of $506.66 per child ² and maintenance of $1,200 per month.

On September 18, 1995, respondent filed a motion to modify for increased child support, a change in the allocation of the tax exemption for one of the parties' minor children, and for attorney fees. She filed with her motion a statement of income and expense. The total monthly expenses shown in her statement was $4,963 per month. On November 8, 1995, appellant filed an answer to respondent's motion and a counter-motion seeking a termination of, or in the alternative, a reduction of maintenance and an accounting for child support that had been paid.

The motion and counter-motion were heard on June 26, 1996, and on September 10, 1996. At trial, respondent testified that some expense items as reflected in her statement had changed or were incorrect.

Respondent testified that she writes checks for almost everything she purchases. In January, 1996, her checks totaled $2,954.04. The February checks totaled $4,731.07, and, the checks from March totaled $4,029.55. During these months, an average of $3,904.88 was paid for expenses.

The trial court found that respondent's gross monthly income included $3,633 per month from her salary, $1,407 per month from child support and $200 from an emancipated child, for total income of $5,240 per month. The trial court found that her monthly expenses were $4,963 per month as shown on her statement of income and expense. The court found additional expenses of $891.43 per month, including $149.62 paid into her retirement fund. After subtracting what it found to be the amount of respondent's reasonable and allowable monthly expenses from the amount it determined to be her gross monthly income, the court found respondent lacked $615 per month to support herself and ordered maintenance from appellant in that amount.

This appeal follows.

Standard of Review

We must affirm a trial court's judgment modifying a decree of dissolution of marriage unless there is no substantial evidence to support it; it is against the weight of the evidence; or it erroneously declares or applies the law. Lamont v. Lamont, 922 S.W.2d 81, 83 (Mo.App.1996); Theilen v. Theilen, 911 S.W.2d 317, 318 (Mo.App.1995). As to maintenance orders, the trial court is granted broad discretion, and "[t]he evidence is viewed favorable to the decree, disregarding evidence to the contrary and deferring to the trial court even if the evidence could support a different conclusion." Allen v. Allen, 927 S.W.2d 881, 885 (Mo.App.1996). We will not reverse the trial court's award of maintenance absent an abuse of discretion. McMullin v. McMullin, 926 S.W.2d 108, 111-12 (Mo.App.1996). The award of maintenance is not one of unregulated discretion. Bybee v. Bybee, 879 S.W.2d 793, 795 (Mo.App.1994). Although maintenance awards are within the sound discretion of the trial court, such awards cannot stand without evidence to support it. Id.; Wofford v. Wofford, 858 S.W.2d 843, 844 (Mo.App.1993) (citations omitted).

I.

Section 452.370.1 authorizes a court to modify maintenance upon a showing of changed circumstances so substantial and continuing as to make the terms of the original decree unreasonable. Leslie v. Leslie, 827 S.W.2d 180, 182 (Mo. banc 1992). In determining modified maintenance, § 452.370.1 provides in pertinent part that:

1. Except as otherwise provided in subsection 6 of section 452.325, the provisions of any decree respecting maintenance or support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable. In a proceeding for modification of any child support or maintenance award, the court, in determining whether or not a substantial change in circumstances has occurred, shall consider all financial resources of both parties, including the extent to which the reasonable expenses of either party are, or should be, shared by a spouse or other person with whom he or she cohabits, and the earning capacity of a party who is not employed.

§ 452.370.1. Here, the trial court made the required changed circumstances finding pursuant to this section, which finding the respondent does not appeal, and accordingly, ordered modification of appellant's maintenance obligation to respondent. As to appellant's appeal, he does not contest respondent's entitlement to maintenance, but only the reasonableness of the $615 awarded. If a spouse is entitled to maintenance, then the only determination is the reasonableness of the amount. Jung v. Jung, 886 S.W.2d 737, 740 (Mo.App.1994). In attacking the reasonableness of the trial court's maintenance award, appellant complains of the amount of respondent's monthly expenses the trial court allowed in calculating its maintenance award to respondent. Thus, the issue for us to decide here is whether the trial court's award of maintenance to respondent, given her allowable expenses, was factually and legally reasonable.

In determining the amount to award for maintenance in a modification proceeding under § 452.370, the trial court may, but is not required to, consider the factors found in § 452.335 ³, just as if the trial court was determining an original maintenance award. Smith v. Smith, 632 S.W.2d 91 (Mo.App.1982). The factors in § 452.335 are as follows:

(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;

(2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;

(3) The comparative earning capacity of each spouse;

(4) The standard of living established during the marriage;

(5) The obligations and assets, including the marital property apportioned to him and the separate property of each party;

(6) The duration of the marriage;

(7) The age, and the physical and emotional condition of the spouse seeking maintenance;

(8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;

(9) The conduct of the parties during the marriage; and

(10) Any other relevant factors.

§ 452.335.2.

The trial court here predicated its maintenance award on the fact it found that respondent's reasonable needs exceeded the amount it found for her available financial resources. Thus, in calculating and awarding maintenance, the trial court subtracted what it found to be the amount of respondent's reasonable and allowable monthly expenses, $5,855, from the amount it determined to be her gross monthly income, $5,240, arriving at a maintenance figure of $615. The trial court determined respondent's monthly expenses by adding expenses claimed by her in her income and expense statement, in the amount of $4,963, and additional expenses not reflected in the statement, in the amount of $891.43 per month, for a total of $5,854.43. It is apparent from the record that the trial court rounded upward respondent's monthly expenses by 57 cents to $5,855 in calculating maintenance. The trial court determined that respondent's total gross monthly income was $5,240, which figure included $3,633 in salary, $1,407 in child support from the appellant, and a $200 monthly contribution from her emancipated son who lives with respondent.

A reading of appellant's Point Relied On and the argument thereon reveals that he has two complaints: (1) that certain expenses of the respondent that were allowed by the trial court in calculating and awarding maintenance were not supported by substantial evidence or were against the weight of the evidence in that the amounts of the expenses in question, as testified to by respondent, were different than the amounts claimed in her income and expense statement, on which the trial court relied, in part, in determining her monthly expenses; and, (2) that the trial court erroneously declared and applied the law in calculating and awarding maintenance in that it allowed respondent as expenses three...