Cigno v. Cigno

• Decision Date: 03 February 1987
• Docket Number: No. 51274,51274
• Citation: 723 S.W.2d 930
• Parties: Claire H. CIGNO, Petitioner-Respondent, v. Sam E. CIGNO, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 930

723 S.W.2d 930

Claire H. CIGNO, Petitioner-Respondent, v. Sam E. CIGNO, Respondent-Appellant.

No. 51274.

Missouri Court of Appeals,

Eastern District,

Division One.

Feb. 3, 1987.

Walther and Roberts, Greg Louis Roberts, Michael C. Walther, Clayton, for respondent-appellant.

Chester Arthur Love, Clayton, for petitioner-respondent.

CRIST, Judge.

Father appeals from the trial court's rulings increasing child support and maintenance, and denying his cross-motion to terminate maintenance. We affirm.

The parties' marriage was dissolved April 13, 1976. Mother was awarded custody of the five minor children of the marriage, child support of $200 per month per child, and $600 per month maintenance. On April 13, 1978, the order was modified, on father's motion, to give father custody of one child. On February 5, 1980, there was a second modification. This modification, representing an agreement by the parties, increased child support to $300 per month for each of the three youngest children, left support at $200 per month for one child, increased maintenance to $800 per month, and gave mother a lump sum payment of $1,800. The 1980 order includes a handwritten statement that "[i]t is understood that the $800 maintenance is being paid and accepted with the knowledge that petitioner [mother] intends to seek employment for the purpose of supplementing said maintenance award." On August 15, 1984, mother brought the present motion to modify requesting an increase in child support to $650 per month for each of the three children who were still minors, and requesting maintenance be increased to $2,000 per month. Father filed a cross-motion to terminate maintenance. Before the motions were heard another of the parties' children became emancipated. On December 2, 1985, the trial court overruled father's motion and sustained in part mother's motion by increasing child support to $650 per month for the youngest child, leaving support at $300 per month for the other minor child, increasing maintenance to $1,000 per month, and awarding mother attorney fees of $3,150.

Father raises five points on appeal. In four of those he alleges the trial court abused its discretion; he claims error in (1) increasing child support for the youngest child, (2) increasing maintenance payments, (3) not terminating maintenance, and (4) awarding mother attorney fees. In his other claim of error, his point relied on IV, father asserts the trial court erred in failing to determine that it is father who may claim the minor children as dependents for income tax purposes.

When, in a modification proceeding, there is an allegation of abuse of trial court discretion, the standard of review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976); and we will only reverse if the order is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Father, as appellant, bears the burden of proving the trial court abused its discretion. Salcedo v. Salcedo, 693 S.W.2d 875, 878 (Mo.App.1985). Neither party requested findings of fact and the court made none. On appeal the facts are deemed to be in accordance with the order issued by the trial court. Stratton v. Stratton, 694 S.W.2d 510, 512 (Mo.App.1985). The trial court is in the best position to judge the credibility of the witnesses. Id. at 512. We will recite the specific facts as necessary to the disposition of each of father's allegations of trial court error.

Father claims increasing child support for the parties' youngest child from $300 per month to $650 per month was an abuse of discretion, asserting mother failed to prove a substantial change in circumstances not contemplated in the 1980 award.

Father bases part of his argument on the nature of mother's evidence. Mother testified she was unable to provide for the parties' minor children on the money available to her from her income and support payments from father. In support of her testimony mother introduced both her current and her 1980 income and expense statements. Her evidence was that food costs, clothing costs, mortgage costs, gas and electricity costs had all increased in the four and a half years between the 1980 modification and the filing of the current motion. Father cites us to several cases where the trial court found insufficient evidence of increased need and modification was denied. See Hoppers v. Hoppers, 638 S.W.2d 329 (Mo.App.1982); Hallums v. Hallums, 585 S.W.2d 226 (Mo.App.1979); and Plattner v. Plattner, 567 S.W.2d 139 (Mo.App.1978). In all those cases the appellate court affirmed the trial court's denial of the motion to modify. Mother's evidence was presented in her income and expense statements and in her testimony; on that evidence the trial court, unlike in the cases cited by father, granted her part of the relief prayed for.

Father also alleges mother's evidence fails to satisfy the statutory requirement of "a showing of changed circumstances so substantial and continuing as to make the [existing] terms unreasonable." § 452.370, RSMo (Cum.Supp.1984). Unlike in the cases relied upon by father, mother's motion to modify did not follow on the heels of a prior support order, rather there was a four and a half year interval during which time the children got older and their needs changed. In addition to increased household expenses, mother testified she needed to provide the children with automobile insurance and to acquire a car for their use. In addition to showing increased need, mother presented evidence of father's greater ability to provide for those needs. Father's evidence that he has provided support in excess of his support obligation is not relevant to the children's future needs or mother's ability to provide for those needs. In re Marriage of Simmons, 636 S.W.2d 351, 352-53 (Mo.App.1982). Increasing child support is not an abuse of discretion where father's income is more than four times mother's, individual expenses for the minor children have increased, household expenses have increased, 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 return indicates father received a salary of $64,307. In addition to his salary from Sam E. Cigno, Inc., entertainment and dues expenses for father, a dentist, were provided by the business. Father also received rents, paid to him by the business,...