Brucker v. Brucker, 42364
| Decision Date | 09 December 1980 |
| Docket Number | No. 42364,42364 |
| Citation | 611 S.W.2d 293 |
| Parties | Warren A. BRUCKER, Respondent, v. Dorothy A. BRUCKER, Appellant. |
| Court | Missouri Court of Appeals |
Timothy V. Barnhart, Nelson B. Rich, St. Louis, for appellant.
William Dorsey, Clayton, for respondent.
Appellant (hereinafter referred to as "wife") filed a motion to modify a 1975 dissolution decree seeking an increase in maintenance plus attorney's fees for the prosecution of the motion. Respondent (hereinafter referred to as "husband") filed a motion to dismiss which the trial court sustained on October 8, 1979 on the ground that the separation agreement providing for maintenance of wife represents a contractual arrangement and therefore the provisions found therein, including maintenance, are not subject to modification by the court. After filing a motion for new trial which the court denied, the wife perfected this appeal.
Husband and wife married on May 27, 1944. On August 22, 1975, after dissolution proceedings were commenced on August 4, 1974, the trial court dissolved the marriage. In the decree, the trial court awarded wife the sum of $473.30 per month for maintenance. Further the decree incorporated paragraphs 1, 2, 3, 4, 5 and 13 of the separation agreement signed by the parties on August 8, 1975. In the decree, the trial court specifically found that the separation agreement was "not unconscionable" as to support, maintenance and property and ordered the parties to perform the terms of the agreement.
Paragraph 1 of the separation agreement dealt with the maintenance that wife was to receive from husband, specifically $473.30 per month. Paragraph 13 of the separation agreement dealt with the effective date of maintenance payments and the termination date of temporary maintenance previously ordered. The remaining incorporated paragraphs, Nos. 2, 3, 4, and 5 related to child custody, child support, and division of marital property, which are not at issue here.
On appeal, wife claims the trial court erred in sustaining husband's motion to dismiss wife's motion to modify because the decree of dissolution was entered after January 1, 1974, and it incorporated the maintenance provisions of the separation agreement which did not expressly limit or preclude modification of the decree. Wife maintains that pursuant to § 452.325, RSMo 1978, maintenance provisions of decrees of dissolution entered on or after January 1, 1974 are modifiable unless the separation agreement expressly limits or precludes modification.
Section 452.325.1 authorizes parties to a marriage who either separate or dissolve their marriage to enter into a written separation agreement containing provisions for, among other things, maintenance of either of the parties. Section 452.325.2 establishes that the terms of the separation agreement except those terms providing for custody, support, and visitation of the children, bind the court in a proceeding for dissolution of marriage or for legal separation unless the court finds that the separation agreement is unconscionable. Section 452.325.3 sets forth how the court can proceed if it finds the separation agreement unconscionable. If the court finds the separation agreement to be conscionable as to support, maintenance, and property, § 452.325.4 states:
(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; or
(2) If the separation agreement provides that its terms shall not be set forth in the decree, only those terms concerning child support, custody, and visitation shall be set forth in the decree, and the decree shall state that the court has found the remaining terms not unconscionable.
The section of the statute dealing with enforcement of the terms of the separation agreement is § 452.325.5 wherein it is stated, among other things, that all remedies available for the enforcement of a judgment are available to enforce the terms of the separation agreement. Section 452.325.6 provides: "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."
As is explained in In re Marriage of Haggard, 585 S.W.2d 480, 482 (Mo. banc 1979), since the passage of the Dissolution of...
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Desloge v. Desloge
...would be any other judgment. Section 452.325.5, RSMo 1978; Haggard v. Haggard, 585 S.W.2d 480, 481-482 (Mo.banc 1979); Brucker v. Brucker, 611 S.W.2d 293 (Mo.App.1980). Lastly, wife contends that the maintenance provisions in the "settlement agreement" constituted "maintenance in gross" as ......
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Bryson v. Bryson
...based on § 452.325 is enforceable as a judgment just as the former decretal alimony was. In re Haggard, supra; Brucker v. Brucker, 611 S.W.2d 293 (Mo.App.1980). Whether the spousal maintenance is contractual, or incorporated into the decree and enforceable as a judgment pursuant to § 452.32......
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Joseph v. Schrauth
...the issue of modifiability is controlled by the Separation Agreement, not the Dissolution Judgment, pursuant to Brucker v. Brucker , 611 S.W.2d 293 (Mo. App. E.D. 1980).Following oral argument on the Motion to Dismiss and additional briefing by the Parties, the circuit court entered its Ord......
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In re Marriage of Mangus
...has jurisdiction to proceed on a motion to modify. See Berman v. Berman, 701 S.W.2d 781, 786 (Mo. App. E.D.1985); Brucker v. Brucker, 611 S.W.2d 293, 296 (Mo.App. E.D.1980). Accordingly, it would have been error if the trial court dismissed Appellant's motion and treated the original mainte......
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Section 26.19 Effect of Agreement Between Parties and Types of Maintenance
...the trial court but not, by express direction of the parties in the separation agreement, incorporated in the decree. Brucker v. Brucker, 611 S.W.2d 293, 295 (Mo. App. E.D. 1980). This contractual maintenance would be nonmodifiable except by the parties’ mutual consent or for fraud, duress,......
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Section 26.12 Standards for Change in Amount of Support
...notwithstanding any agreement. See id. Counsel should also be cautious of limiting terms with regard to maintenance. Brucker v. Brucker, 611 S.W.2d 293 (Mo. App. E.D. 1980); see also Berman v. Berman, 701 S.W.2d 781 (Mo. App. E.D. 1985); Beeler v. Beeler, 820 S.W.2d 657 (Mo. App. W.D. 1991)......
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Section 23.30 Judgment Provisions Not Modifiable
...of marriage are nonmodifiable, specifically the following: · Express orders preventing modification of maintenance, Brucker v. Brucker, 611 S.W.2d 293 (Mo. App. E.D. 1980) · Orders for the allocation of dependency exemptions for children if designated as such · Division of property and debt......