Crawford v. Crawford, WD

• Citation: 986 S.W.2d 525
• Decision Date: 09 March 1999
• Docket Number: No. WD,WD
• Parties: Harold Leon CRAWFORD, Respondent, v. Mary Sue CRAWFORD, Appellant. 54232.
• Court: Court of Appeal of Missouri (US)

Page 525

986 S.W.2d 525

Harold Leon CRAWFORD, Respondent, v. Mary Sue CRAWFORD, Appellant.

No. WD 54232.

Missouri Court of Appeals,

Western District.

March 9, 1999.

Nancy A. Beardsley, Blue Springs, for Respondent.

David E. Elliott, Lee's Summit, for Appellant.

Before: Presiding Judge BRECKENRIDGE, Judge LOWENSTEIN and Judge SPINDEN.

LOWENSTEIN, Judge.

The marriage of Harold Leon Crawford (Leon) and Mary Crawford (Mary) was dissolved in 1982. The custody of the couple's three children was awarded to Mary. Child support was decreed at $166.66 per month per child, to be paid by Leon. Periodic maintenance in the amount of $400 was ordered paid by Leon to Mary.

In September 1995, Mary filed a motion to modify the amount of child support. Her motion stated that the oldest child, Kimberly, was emancipated, but asked for an increase for the remaining children, Laura, born in 1976, and Susan, born in 1978, due to a change of circumstances which included: a) necessary expenditures had increased; b) Laura was in college; and c) Harold had remarried, his income had increased, and the new guidelines in Rule 88.01, when applied to the financial circumstances of both parties, would result in an increase in support by more than twenty percent.

Leon was served on September 28, 1995. Leon's attorney withdrew, never having filed a timely answer on Harold's behalf. His new counsel filed a motion for leave to answer and filed a counter-motion to modify out of time. This motion was granted, with Leon filing the answer and counter-motion on December 12, 1996. Leon admitted that his income had increased and asked that any support be paid directly to the two children. His counter-motion prayed maintenance be terminated, and he be given both exemptions for the children on his income tax return.

On January 14, 1997, Mary filed a reply and answer to the cross-motion, claiming neither she nor her attorney had ever been properly served with Harold's counter-motion. Rule 43.01(a) and (b).

After trial a "judgment" signed by a Commissioner was entered containing the following items: a) termination of maintenance, b) an increase in child support for Laura, a sophomore in college and Susan, a high school senior, to $525.25 each per month, c) a declaration of $8,808 in retroactive child support due from Leon, d) a declaration of emancipation of the oldest child, Kimberly, e) a declaration that allowed Leon to claim Laura as a dependent for tax purposes, and, f) an order requiring Leon to pay $750 toward Mary's attorney fees. The case was argued. It was then discovered that a judge had not entered the judgment, so the case was, in light of Slay v. Slay, 965 S.W.2d 845 (Mo. banc 1998), remanded back to the Circuit Court under the auspices of State ex rel. York v. Daugherty, 969 S.W.2d 223 (Mo. banc 1998) for entry of a judge signed order. A judgment was entered adopting the above mentioned findings and recommendations of the Commissioner.

Mary's appeal raises eleven points. Review is under Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The burden is on the appellant to show error amounting to an abuse of discretion. Woolridge v. Woolridge, 915 S.W.2d 372, 375 (Mo.App.1996).

I.

The first point alleges the trial court lacked personal jurisdiction over her to hear Leon's counter-motion to terminate maintenance, and to allow him to claim either of the daughters for a tax exemption since he had failed to comply with Rule 43.01(a), when he did not serve Mary or her attorney with proper notice. Rule 43.01(a) requires every pleading subsequent to the original petition to be "... served on each of the parties affected thereby...." Subsection (b) allows service to be made on any party through the party's attorney. Subsection (c) allows service to be accomplished by mail, and is "complete upon mailing." Subsection (d) states service may be shown "... by written certificate of counsel making such service." The legal file shows, and the trial court noted, that the motion to file out of time did show a certificate of service by Leon's attorney, and some eight days later, Mary's attorney filed strenuous suggestions in opposition. Leave was granted to file the counter-motion on December 12, 1996. That same day, Leon filed his answer and counter-motion to modify, but the certificate of service shows the date of mailing to Mary's attorney, as November 27th, 1996. Mary filed a reply and answer to the counter-motion on January 14,1997. Mary's point is the attempted service dated fifteen days before the counter-motion was filed was void and did not confer jurisdiction to adjudicate the counter-motion.

The Commissioner's findings and recommendations which were adopted by the trial court are instructive on this point: "The fact that there was a reply and answer filed on [Mary's] behalf shows that there was notice to counsel of the pleading. This Court has jurisdiction over [Mary] with regard to [Leon's] counter-motion to modify." The spirit behind procedural rules such as Rule 43 is to "... ensure the orderly resolution of disputes and to attain just results. They are not ends in themselves. For this reason, we do not generally consider noncompliance with rules or statutory procedures to warrant reversal in the absence of prejudice." Heintz v. Woodson, 758 S.W.2d 452, 454 (Mo. banc 1988). In the case at bar, Mary had actual notice of the counter-motion, even though the service date was incorrect. She timely filed a response, and having received actual notice, is not in a position to complain of prejudice for the failure to receive the strict statutory notice. Macon-Atlanta State Bank v. Gall, 666 S.W.2d 934, 940 (Mo.App.1984). Without a showing of prejudice from the technical non-compliance of the certificate of service, nor the lack of reasonable notice on issues raised, the complaining party may not expect a reversal. Heintz v. Woodson, 758 S.W.2d at 453--54; Burton v. Everett, 845 S.W.2d 710, 713 (Mo.App.1993); Rule 84.13(b).

II.

Mary raises three points regarding the court's terminating maintenance of $400 per month. All these issues will be treated in this point. Mary states there was insufficient evidence to support the necessary statutory findings and conclusions resulting in a conclusion of termination of previously decreed maintenance. She asserts the trial court failed to list sufficient findings to support this portion of the judgment. Particularly, she contests the finding that she was capable of meeting her own needs, and that if maintenance were not discontinued, Leon could meet his reasonable needs. She correctly asserts Leon, as movant on the termination of maintenance issue, had the burden of proof. The pertinent portion of § 452.370.1., RSMo 1994 ¹ reads:

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.

Not every change of circumstances will automatically justify a modification of an original dissolution decree, as these motions will be "appropriate only in unusual situations." McKinney v. McKinney, 901 S.W.2d 227, 229 (Mo.App.1995). Though the burden for proof of substantial change is on the movant, Halliday v. Boland, 813 S.W.2d 34, 37 (Mo.App.1991), under the scope of review of Rule 73.01(c), the trial court's judgment is presumed valid and the burden is on the appellant to demonstrate the judgment was incorrect. Norman v. Norman, 916 S.W.2d 209, 210 (Mo.App.1995).

The following findings were made on Leon's counter-motion to terminate maintenance.

4. At the time of the dissolution, Respondent was unemployed, but immediately started working as reflected in her 1982 tax return. She has been working since the dissolution, except for a period of time after her lay-off from Yellow Freight in 1994. When at Yellow Freight, she had earnings of over $26,000 per year. She now works full time as a secretary grossing $22,000 per year. She also works part-time at Price Chopper, earning an additional $325 per month. Her total gross monthly earnings are $2,158.

5. Petitioner is employed and grosses $85,000 per year, $7,083 per month. At the time of the dissolution, he was earning $48,000 per year. He has remarried and has a child born of that marriage. He maintains family health and dental insurance coverage; the cost attributable to the children of this relationship is $34 per month. As he is not the movant in this motion to modify child support, he is entitled to a credit for the child of the second marriage in the amount of $816.

12. Respondent is capable of meeting her own needs through her present employment. Respondent has an affirmative duty to seek self-sufficiency through employment, and has done so since the dissolution 15 years ago. Petitioner will be paying double the present amount of child support, and along with his other expenses, will not have sufficient financial resources to meet his own reasonable needs, and also continue to pay maintenance to Respondent. There have been changed circumstances pursuant to Section 452.370.1 RSMo., so substantial and continuing as to make the terms regarding maintenance unreasonable.

The trial court spelled out Mary's rising income and increase in job skills since the dissolution, her lack of credibility by grossly overstating many of her living expenses and debts, and, though not relevant to the subject of maintenance, overstating the expenses and...