Butler v. Butler, 48514
| Decision Date | 30 July 1985 |
| Docket Number | No. 48514,48514 |
| Citation | 698 S.W.2d 545 |
| Parties | Richard L. BUTLER, Appellant, v. Mary Kay BUTLER, Respondent. |
| Court | Missouri Court of Appeals |
Stan J. Goodkin, Thomas J. DeGroot, Popkin, Stern, Heifetz, Lurie, Sheehan, Reby and Chervitz, Clayton, for appellant.
Charles M.M. Shepherd, Shepherd & Weenick, Clayton, for respondent.
Husband appeals from an order modifying a dissolution decree. We affirm in part and reverse and remand in part.
In June 1976, the parties' marriage was dissolved. In this decree, husband was ordered to pay maintenance and child support for the three children of the marriage. Wife filed a motion to modify in November 1978 which was granted, pursuant to a settlement in 1981, increasing monthly maintenance for wife from $250.00 to $350.00 and monthly child support from $150.00 to $300.00 each for two of the children and from $225.00 to $450.00 for the third child. In November 1982, wife filed a second motion to modify the child support and maintenance provisions which was later amended. The changed circumstances alleged included the increased expenses for one of the children who was born with severe birth defects, increased expenses from wife's own poor health, increased expenses in all household expenses due to inflation, additional medical expenses for the parties' daughter, increased home maintenance expenses, and husband's fraudulent failure to disclose assets in reaching the first modification agreement ordered in 1981.
Hearings were begun on this motion in May 1983 and were continued to July 26, 1983. During the May 1983 hearings, the bulk of the evidence presented concerned the circumstances of the wife and the children, wife's motion for attorney's fees for her initial counsel, and husband's financial status. Wife changed counsel between the May and scheduled July 26 hearing, with her new attorney entering his appearance on July 26, 1983. On that day, husband's counsel went to the courthouse expecting to negotiate with wife's new attorney rather than to begin a trial. When wife arrived at the courthouse, she informed her attorney that she was entering the hospital that afternoon for surgery the next day to remove a cancerous breast. Wife's counsel immediately prepared an application for "temporary order of modification" increasing the amount for support and maintenance to cover additional child care expenses and anticipated medical expenses arising from the operation.
The court sustained wife's motion for an immediate hearing on the temporary modification over strenuous objections from husband's attorney that he had received no notice of the hearing on the temporary modification and had no time to prepare. Wife testified that she had only become aware of the necessity of surgery the day before. She had made arrangements with a family friend to care for her children during her hospitalization and recovery period for a fee of $3.00 an hour. She further testified that she was going to incur medical expenses beyond her insurance coverage and she lacked the necessary funds to cover the expenses. After hearing the wife's testimony, the court ordered husband to pay "an additional $504.00 per week for child care and custodial expense pending her surgical treatment on her breast and recovery therefrom." The temporary order was to continue pending further order of the court.
Husband appealed from this temporary order of modification contending, inter alia, that he had not been given timely notice of the hearing and the court lacked jurisdiction to enter the order. In response to husband's appeal, wife filed a motion to dismiss on the ground that this order was not appealable. We agreed and dismissed his appeal finding the order non-appealable in Butler v. Butler, 672 S.W.2d 742, 743 (Mo.App.1984), from which we have borrowed freely our preceding recitation of facts.
During the pendency of husband's appeal of the temporary support order, evidentiary hearings on the main modification motion continued on September 23, 1983, and October 4, 1983. On October 11, 1983, wife filed a contempt motion against husband for his failure to make payments under the temporary order of July 26, 1983. Although husband ignored the July 1983 order, he continued to meet the support payments ordered in the first modification in 1981. The trial court continued wife's contempt motion and ordered husband post a $13,000.00 supersedeas bond for his appeal. Further evidentiary hearings on the motion to modify were held in the fall of 1983, as well as a hearing for attorney's fees on February 1, 1984. On February 21, 1984, the trial court terminated its temporary order of July 26, 1983, which had remained in effect up to this time, and entered its final order on the motion to modify as well as its entry of a bond order.
In its final order on February 21, 1984, the trial court issued its Findings of Fact, Conclusions of Law, and Order Judgment, and required the following of husband: pay wife $550.00 per month for maintenance (an increase of $200.00), and $550.00 per month for each of the three children, totaling $1,650.00 for child support (an increase of $600.00); pay $7,682.00 for attorney's fees and costs charged by wife's former counsel; pay $3,340.00 for attorney's fees charged by wife's new attorney; pay all medical insurance premiums and medical bills incurred by the parties' children; and post a $50,000.00 bond to secure payment of husband's future support and maintenance obligations. Furthermore, the trial court continued to hold a special warranty deed husband had posted for the $13,000.00 supersedeas bond in connection with his appeal of the temporary order of modification.
Husband raises numerous points on appeal. In attacking the judgment of February 21, 1984, he claims the trial court erred by (1) ordering the husband to pay additional child support and maintenance to wife because (a) wife's pleadings for modification failed to allege the essential element of a substantial and continuing change of circumstances and (b) wife put on no evidence of her financial circumstances at the first modification in 1981, so her evidence at the hearing on her second motion to modify failed to show a substantial and continuing change of circumstances; and (2) requiring the husband to post a $50,000.00 bond to guarantee his payment of future maintenance and child support because the trial court lacked statutory authority to enter such an order. Husband further states the entry of the orders to post bond and to pay wife these large amounts of money reflects the trial court's bias and prejudice against him.
Husband also attacks the trial court's entry of the order of July 26, 1983, temporarily modifying child support and maintenance because (1) the trial court, absent statutory authority, lacked jurisdiction to enter the order; (2) the wife failed to allege a change of circumstances so substantial to make the pre-existing modification order of 1981 unreasonable; (3) the evidence at the hearing on wife's application for the temporary order of modification failed to show a substantial and continuing change in circumstances; (4) the order was indefinite and incapable of enforcement; (5) the hearing on the wife's motion for temporary order was held without husband receiving adequate notice of the hearing; and (6) the requirement that husband post a $13,000.00 supersedeas bond in connection with his appeal of the temporary order violated § 512.080 RSMo Cum.Supp.1984 which makes the filing of such a bond optional at the choice of the husband.
Husband first attacks the validity of the final judgment of February 21, 1984, ordering increased child support and maintenance. Husband argues neither the pleadings nor the evidence reflects a substantial and continuing change of circumstances from the time the original modification was ordered in 1981. The pleadings, taken in their entirety, as previously discussed, clearly allege substantial changes in circumstances since the first modification order if one considers nothing more than the allegations concerning wife's deteriorating health with its attendant expenses and costs.
The sufficiency of the evidence supporting a...
To continue reading
Request your trial
-
Parciak v. Parciak
...Williams v. Williams, 349 S.W.2d 422 (Mo. App. 1961) ; Warren v. Warren, 601 S.W.2d 683, 687 (Mo. App. W.D. 1980) ; Butler v. Butler, 698 S.W.2d 545, 549 (Mo. App. E.D. 1985) (A court has no general equitable poser to require a husband in a dissolution proceeding to post a bond to guarantee......
-
Cigno v. Cigno
...and those expenses are being shared by fewer people. See Fellner v. Fellner, 715 S.W.2d 333, 334 (Mo.App.1986); and Butler v. Butler, 698 S.W.2d 545, 548 (Mo.App.1985). In his next two points relied on father complains about the increase in maintenance. Father's 1984 federal income tax retu......
-
Morovitz v. Morovitz
...S.W.2d 242, 245 (Mo.App.1985) and we may set aside its decree or judgment only if we firmly believe that it is wrong, Butler v. Butler, 698 S.W.2d 545, 548 (Mo.App.1985), or it has abused its discretion, Overstreet, 693 S.W.2d at 245. Wife is entitled to an increase in child support only af......
-
Bradley, Jr. v. Bradley
...v. Theilen, 911 S.W.2d 317, 318 (Mo. App. W.D. 1995); Kieffer v. Kieffer, 590 S.W.2d 915, 917 (Mo. banc 1979); Butler v. Butler, 698 S.W.2d 545, 548 (Mo. App. E.D. 1985). The burden of establishing changed circumstances that are suffic-ient-ly substantial and continuing as to render the ori......