D. Willis v. G. Willis

• Decision Date: 24 July 2001
• Parties: (Mo.App. S.D. 2001) Dennis J. Willis, Respondent Pro Se, v. Ginger L. Willis, Appellant. WD59202 0
• Court: Missouri Court of Appeals

50 S.W.3d 378 (Mo.App. S.D. 2001)

Dennis J. Willis, Respondent Pro Se, v. Ginger L. Willis, Appellant.

WD59202

Missouri Court of Appeals Western District

07/24/2001

Appeal From: Circuit Court of Jackson County, Hon. Vernon E. Scoville, III

Counsel for Appellant: Party Acting Pro Se

Counsel for Respondent: James O. Swaney, Jr.

Opinion Summary:

Ginger Willis appeals the court's judgment modifying an earlier decree dissolving her marriage to Dennis Willis. She contends the court erred in refusing to dismiss her ex-husband's motion to modify; in reducing maintenance when no request to reduce maintenance was pleaded; in taking judicial notice of documents without providing notice to appellant and an opportunity to be heard; and in applying the reduction in maintenance retroactively.

Division holds: The court did not err in refusing to dismiss the motion. The court erred in taking judicial notice of the tax return from the dissolution case file without notice to appellant. The court erred in retroactively modifying maintenance prior to the date appellant's attorney entered an appearance. Remanded for further proceedings.

Newton, P.J., Smart, Jr., and Lowenstein, JJ., concur.

PER CURIAM

Ginger Willis ("Wife") appeals the trial court's September 11, 2000, judgment and order modifying the decree dated November 1, 1995 that earlier dissolved the parties' marriage. The respondent, Dennis Willis ("Husband"), did not file a brief in response. In the modification order, the trial court reduced the amount of maintenance that Husband is required to pay to Wife on a monthly basis; made the reduction in maintenance retroactive to November 16, 1998, the date the motion to modify was filed; ordered the stay of execution of the previous contempt judgment against Husband to continue as long as Husband executes a voluntary wage assignment; and assessed costs against Wife.

Wife contends that the trial court erred in the following respects: (1) in denying Wife's motion to dismiss based upon Rule 67.03; (2) in reducing maintenancewhen a request to terminate maintenance was the only relief sought; (3) in reducing Husband's maintenance obligation, in that termination of Husband's employment was the "direct result of [his own] misconduct"; (4) in taking judicial notice of documents relating to Husband's income, without giving appellant a reasonable opportunity to be heard on the issue; and (5) in applying the reduction in maintenance retroactively, in that it may be modified only as to payments which accrued after appellant was served. We affirm in part and reverse in part. Factual Background

On November 1, 1995, following a hearing, the Honorable J. D. Williamson dissolved the marriage of the parties pursuant to a petition filed by Husband. The couple's three children were all emancipated at the date of dissolution. In the court's judgment and decree of dissolution of marriage, the court divided the marital property between the parties (including Husband's retirement benefits) and ordered Husband to pay to Wife maintenance in the amount of $1,200.00 per month beginning December 1, 1995. Wife was also awarded attorneys' fees in the amount of $5,000.00 and the costs of the action.

On June 2, 1997, Husband's first motion to modify the dissolution decree as to maintenance and attorneys' fees was denied based upon the court's failure to find any "substantial and continuing change in circumstances." The court also denied Wife's first motion for contempt, filed at the same time, finding that Husband was "now current in his maintenance obligation" and that Wife had failed to prove that Husband "has the present means and capability within which to pay" Wife's attorney's fees.

On May 18, 1998, Husband failed a random drug test on his job with Union Pacific Railroad and was pulled out of service. Although he passed another drug test six days later, he was terminated from his employment with the railroad in June or July of 1998. The final denial of Husband's appeal of that termination action came in July of 1999. Husband testified at the hearing on his motion for modification that his yearly gross income at the time of the dissolution (1995) had been between $40,000.00 and $45,000.00. At the time of his termination in 1998, he said, he was earning approximately $68,000.00. Husband's job history after being terminated at the railroad in 1998 included: one year at Vai-Con at $8.00 per hour for twenty-four hours a week or less; five or six weeks at Waste Management for $10.00 to $10.75 per hour for forty hours per week; beginning four to five weeks before trial, Husband went to work for Auto Rail, for $14.00 per hour for forty hours a week. His approximate salary at the time of trial, then, was $27,000.00 per year, according to the court's calculation.

On October 22, 1998, pursuant to a second motion for contempt filed by Wife on September 11, 1998, and based upon Husband's failure to pay the required amount of maintenance, the court found at that time, that Husband was in contempt of the court's order for his "willful and contumacious refusal to comply with the orders of this court as to maintenance." The court pronounced judgment as follows: "[P]etitioner is in contempt of the court order of October 25, 1995, to pay the support ordered and $7,200 is the amount due as of this date and is sentenced to imprisonment at the department of corrections county of Jackson until he pays to [Wife] ... the sum of $7,200 for the arrearage of maintenance or until he otherwise be discharged according to law." On October 23, 1998, the court ordered the sentence be served as "Electronic Home Detention."

On November 15, 1998, Husband filed his "Motion to Modify" the maintenance provision of the dissolution decree, which is the subject of this appeal. Two non-est returns of service indicated that Wife had not been personally served as late as February 24, 1999. On March 9, 1999, the trial judge noted in court documents the appearance of Wife's attorney with regard to Husband's motion to modify. On March 22, 1999, Husband filed his amended motion to modify.¹ That motion did not include a certificate of service on opposing counsel, but Wife's attorney entered his appearance in a document marked "On the Motion to Modify," filed with the court on April 6, 1999. Wife filed her answer, along with a third motion to hold Husband in contempt of court for failing to comply with court orders by being in arrears on his maintenance payments and by not paying attorney's fees the court had ordered him to pay.

Husband's motion to modify and Wife's motion for contempt citation against Husband were both heard by the court on August 23, 2000. At that hearing, upon direct examination by his attorney, Husband testified concerning his lack of education and job skills and about his inability to obtain employment with another railroad:

Q. And at the time of the termination, you had been employed for how long?

A. Twenty-eight years, twenty-seven.

Q. And Mr. Willis, did you graduate from high school?

A. No.

Q. Did you obtain a GED?

A. No.

Q. As far as your job skills, what, how would you describe your job skills?

A. I'm an excellent railroader, engineer, conductor. I think I'm very

Q. What was your title when you were employed at Union Pacific Railroad?

A. Conductor, road freight conductor.

Q. Have you have you tried to obtain employment with any other railroad?

A. I've tried about every one in the country.

Q. Specifically, which ones have you?

A. All the way from the Tex-Mex Railroad to Connecticut Southern to every short line, everything they have at the Railroad Retirement Board. Norfolk Southern, CSX, all branches from them; KCS, all of them.

Q. And what has been the response of your applications with other railroad companies?

A. I've had some that were interested but then they never called me for an interview. I think I'm pretty well black-balled from railroading for the random test.***

In its judgment, the trial court found, inter alia:

3. That from the court[']s file, the court finds that the salary of the Petitioner at the time of the ... dissolution of marriage was $67,499 per year.4. That the current salary ... for Petitioner is ... $27,216 per year.

5. That the Petitioner was terminated from his employment with the railroad, after failing a drug test.

6. That said failure was not of a malicious nature or an attempt to reduce his maintenance.

7. That the previous order of maintenance existing at the time of the filing of the Modification was approximately 21.3% of the Petitioner['s] total yearly income.

8. That utilizing the current wage scale $27, 216, the same percentage of maintenance would be $483 per month.

9. That prior to the filing of the Motion to Modify on November 16, 1998, back maintenance was in arrears in the amount of $7,200.

10. That retroactive maintenance to the date of filing of November 16, 1998, equals 22 payment[s] or $10,626.

11. That the arrearage amount to be established by the court is $17,826 less payments $5958.24 for a total of $11,867.76.

The court ordered, adjudged, and decreed "that Maintenance previous[ly] awarded to [Wife] and against [Husband] be modified to the amount of $483 per month retroactive to November 16, 1998"; "that the amount of the arrearage as of today's date is $11,867.76"; and "that the stay of execution in the previous Judgment for Contempt will continue if [Husband] executes a voluntary wage assignment, and continue payments in the amount of $550 a month." Wife appeals.Point I

In her first point on appeal, Wife contends that the trial court abused its discretion in denying her motion to dismiss based upon Rule 67.03,² in light of Husband's failure to comply with previous orders of the court, i.e., his failure to pay Wife's attorneys' fees or to make the monthly maintenance payments ordered by the dissolution court. Wife contends that, under the circumstances, the court's denial of...