Doerflinger v. Doerflinger, 64376

Decision Date23 February 1983
Docket NumberNo. 64376,64376
Citation646 S.W.2d 798
PartiesOliver DOERFLINGER, Respondent, v. Barbara DOERFLINGER, Appellant.
CourtMissouri Supreme Court

Frederick W. Martin, III, William A. Shull, III, Legal Aid of Western Mo., Warrensburg, for appellant.

R. Brian Hall, Gladstone, for respondent.

BILLINGS, Judge.

This case was certified to this Court by dissenting opinion from the Missouri Court of Appeals, Western District. We have jurisdiction under Art. V, Section 10, Missouri Constitution, and adopt the majority opinion, written by Clark, J., as the opinion of this Court. With minor modification and without quotation marks, the opinion is as follows:

In this dissolution of marriage case, the wife appeals the order of the trial court dismissing her motion to modify an award of maintenance. The sole question presented is whether the wife is entitled to seek modification of an award of maintenance of limited duration by filing a motion within the period of installment payments. We conclude she is not and affirm the order of the trial court.

The original, contested trial of this case occurred in October 1979 and the memorandum opinion and judgment were entered December 6, 1979. Detailed findings were made by the trial court, the relevant portions of which are repeated here because of their particular significance in addressing the question posed. The findings were as follows: 1

The Court further finds it would not be feasible because of the respondent's ailment from a physical or economic standpoint that she be awarded the house. However, she is entitled to be awarded the equivalent of a years [sic] occupancy of the house and this award is made to her and is included in the monthly maintenance award hereinafter set forth. The respondent is also awarded the furniture in the residence. The real estate including the house and other marital property is awarded the petitioner subject, of course, to the encumbrance in the amount of $205,000 for which he is solely responsible for the payment thereof. As between petitioner and respondent, the respondent is absolved of all liability on the notes and deeds of trust.

In view of all the relevant factors enumerated in Section 452.335, V.A.M.S., the Court finds that the respondent should have an award of maintenance to meet her reasonable needs until she can get established in her new mode of life. Respondent is intelligent and prior to her marriage to the petitioner she was doing office work for Fina Oil Company. The Court finds that her multiple sclerosis would not be any great obstacle to her obtaining full time employment if she would abstain from the use of intoxicants. Obviously her excessive drinking greatly aggravates her multiple sclerosis but this she does of her own volition. If respondent is of a mind to, she can give up her drinking of intoxicants and secure employment. However, the Court finds that the respondent should have a year to straighten out her life and become rehabilitated and that she is entitled to a monthly award of maintenance in the amount of $900.00 per month for a period of one year which sum the Court finds to be reasonable and necessary considering the yearly salary of the petitioner and the standard of living enjoyed by the parties.

The decree then followed with an award of maintenance to the wife in the amount of $900.00 per month "as and for maintenance for a period of one year from the date hereof." The wife was also awarded the cash sum of $9,640.00 as her share of marital property.

On August 21, 1980, the wife filed her motion to modify the dissolution decree in respect to maintenance. The motion alleged that the wife's illness of multiple sclerosis had prevented her from obtaining employment and had rendered her totally disabled. As a consequence, she contended the maintenance awarded her, due to expire in some four months, was inadequate. She sought modification to increase the amount to $1,750.00 monthly and to alter the term so that the increased sum would be paid "to an unspecified and ongoing time." The motion of the husband to dismiss the modification proceeding was sustained on the stated ground, in the motion, that the court had no jurisdiction to modify a lump sum maintenance award.

In the single point presented on this appeal, the wife first concedes that maintenance awarded in gross may not be modified on motion subsequently filed and that the order dismissing her motion in this case would have properly been made had the allowance here been maintenance in gross. She contends, however, that maintenance ordered to be paid in periodic installments is not maintenance in gross even though the court may have exercised the option provided by statute to limit the payment period to a specified term. It is the wife's position that maintenance in gross is decreed only when a lump sum is so designated, and that any award of periodic payments partakes of the attributes of maintenance ordered paid from time to time thus entitling either party to seek modification of future installments under Section 452.370. 2

Section 452.335.2 providing for the award of maintenance to either spouse directs the court to provide maintenance in such amounts and for such periods of time as the court deems just. While it is no longer open to question that the trial court is empowered to decree maintenance as payable indefinitely, or for a period of limited duration, Sansone v. Sansone, 615 S.W.2d 670 (Mo.App.1981), it has also been held that this same section sanctions awards of maintenance in gross formerly authorized by Section 452.080, RSMo 1969. D----E----W---- v. M----W----, 552 S.W.2d 280, 282 (Mo.App.1977) 3. Section 452.335 thus covers the full range of support payments to a spouse, maintenance for an indefinite term, maintenance for a limited period and maintenance in gross. The crux of the wife's contention here is that modification may be sought under Section 452.370 as to any order for periodic payments of maintenance, whether such payments are ordered only for a specified term or from year to year.

No Missouri case directly in point has been cited and independent research has disclosed none. It has been held, however, that the term or amount of periodic maintenance ordered paid for a limited term may not be reviewed under Section 452.370 after the payment term has run. Ethridge v. Ethridge, 604 S.W.2d 789 (Mo.App.1980). The rationale expressed in Ethridge was that Section 452.370 refers only to modification of future payment installments and once the term during which maintenance is payable has expired, there are no future payments upon which a modification order would be operative.

The wife in the present case seeks both an increase in the amount of monthly payments and deletion of the one-year expiration date for the husband's obligation to provide maintenance. As in most, if not all cases, the critical issue here is whether the payment term may be extended beyond that originally decreed. The rationale which controls that issue likewise governs the question of authority to vary the amount. The finality of the adjudication limiting the maintenance obligation is therefore the substantive, dispositive question in the case.

Section 452.335 grants to the trial courts wide latitude in decreeing spousal maintenance. After giving due consideration to all of the factors which the statute enumerates, the court must undertake not only to set the amount payable, if support is to be ordered, but to determine for what period the payments shall be made. The statute plainly indicates that dependency of a spouse is not presumed but rather a spouse seeking maintenance is, in proper cases, to be encouraged and aided in becoming self-sufficient by education or training. Section 452.335.2(2). Justice does not require provision of support to a spouse who is or may be prepared to become self-supporting. Pederson v. Pederson, 599 S.W.2d 51, 54 (Mo.App.1980).

While the authority of the trial court under Section...

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