Draper v. Draper, WD

• Decision Date: 22 December 1998
• Docket Number: No. WD,WD
• Parties: Ronald Carrol DRAPER, Appellant/Cross-Respondent, v. Harriett Ann DRAPER, Respondent/Cross-Appellant. 54930.
• Court: Missouri Court of Appeals

Page 289

982 S.W.2d 289

Ronald Carrol DRAPER, Appellant/Cross-Respondent, v. Harriett Ann DRAPER, Respondent/Cross-Appellant.

No. WD 54930.

Missouri Court of Appeals,

Western District.

Dec. 22, 1998.

Kenneth C. Hensley, Hensley & Hensley, Raymore, for appellant.

William E. Shull, Liberty, for respondent.

Before Presiding Judge ALBERT A. RIEDERER, Judge HAROLD L. LOWENSTEIN and Judge LAURA DENVIR STITH.

LAURA DENVIR STITH, Judge.

Appellant/Cross-Respondent, Ronald Draper, appeals the trial court's judgment denying his motion to modify spousal maintenance payments, and argues that the trial court's order denying his motion to modify spousal maintenance was against the weight of the evidence. Respondent/Cross-Appellant, Harriett Draper, cross-appeals the trial court's order terminating child support payments for her then 19-year old daughter. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

The Drapers' marriage was dissolved on February 10, 1992. Pursuant to the decree, Ms. Draper was awarded custody of their minor child, Jennifer, then 14 years old. In conjunction with the agreement, Mr. Draper was ordered to pay the sum of $516.00 per month in child support for Jennifer and $400.00 per month in spousal maintenance. The court determined that the couple's older child, Patrick, was emancipated.

Some four years later, on August 12, 1996, Mr. Draper filed a motion to modify child support and spousal maintenance. In support of his motion, Mr. Draper argued that his financial circumstances had changed significantly since the dissolution decree was entered in 1992. Specifically, Mr. Draper asserted that he was forced to leave work in December 1995 due to health problems, and that this decreased his monthly income. Mr. Draper further asserted that his child support obligation should be terminated because Jennifer was 18, and had graduated from high school in the Spring of 1996. While she had enrolled in and attended college in the Fall of 1996, she dropped out of school in the middle of the Spring 1997 semester, without a good medical or other reason. Therefore, he argued that, under Section 452.340, ¹ Jennifer should be declared emancipated and his obligation to pay child support for her should terminate.

The court heard evidence on July 10, 1997, and again on July 14, 1997. At the conclusion of the hearing, on the later date, the court denied Mr. Draper's request for a reduction in spousal maintenance. Although there was evidence that Jennifer enrolled for the Fall 1997 semester on July 14, 1997, the court also held that Jennifer was emancipated and terminated Mr. Draper's child support obligation. Both parties now appeal.

II. STANDARD OF REVIEW

We will affirm a trial court's order modifying a dissolution decree unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Welker v. Welker, 902 S.W.2d 865, 867 (Mo.App.1995); Moore v. Moore, 849 S.W.2d 652, 654 (Mo.App.1993).

III. MODIFICATION OF SPOUSAL MAINTENANCE

Mr. Draper raises two points on appeal which are directed to the trial court's continuation of the original order of maintenance for his former spouse. In both points, Mr. Draper argues that the trial court's decision was against the weight of the evidence, which he says showed that his circumstances had substantially and continually changed to such a degree that the original maintenance award of $400.00 per month had become unreasonable.

In Missouri, the standard for determining when the court may modify the provisions of a decree governing maintenance is set out in Section 452.370, which states in relevant part:

[T]he 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 ...

§ 452.370 (emphasis added). We strictly enforce these statutory requirements so as to discourage recurrent and insubstantial motions for modification. Fulp v. Fulp, 808 S.W.2d 421, 423 (Mo.App.1991). Ultimately, we thus require the party seeking modification of an award of maintenance to prove with detailed evidence that circumstances have changed so substantially that the prior decree is unreasonable. McKinney v. McKinney, 901 S.W.2d 227, 229-30 (Mo.App.1995); Bradley v. Bradley, 880 S.W.2d 376, 379 (Mo.App.1994).

While a decrease in the income of the spouse paying maintenance or an increase in the income of the spouse receiving it are both relevant factors for the court to consider, neither alone requires a court to modify the amount of maintenance previously ordered. Bradley, 880 S.W.2d at 379. The ultimate issue remains whether these changes are sufficiently substantial so as to make the original terms of the decree unreasonable. Thus, if, despite a decrease in income, the spouse who is paying maintenance is still able to meet his or her reasonable needs and to also pay the maintenance previously ordered, a significant change of circumstances has not occurred. ² Similarly, if, despite an increase in income, a spouse who has been receiving maintenance still needs the maintenance awarded in order to meet his or her reasonable needs, a significant change of circumstances has not occurred. See, e.g., McKinney v. McKinney, 901 S.W.2d 227 (court held it was not unreasonable to expect wife to return to work after divorce, and her attempt to supplement her retirement was not a significant change of circumstances to warrant a modification of maintenance).

In support of his argument that the court below erred in failing to terminate maintenance, Mr. Draper notes that he offered testimony that his health had deteriorated and his income had decreased. The record does show that he testified that at the time of the dissolution in 1992, he was making approximately $45,000 in adjusted gross income per year. He testified he continued to earn a salary in that same range until December 2, 1995. On that date, Mr. Draper determined that he could no longer return to work to perform his job due to a "combination of mental and physical problems," including osteoarthritis in his left knee and depression. He thus quit his job and applied for disability payments through his employer. He immediately began receiving short-term disability payments at his same rate of pay for six months. Thereafter, he was placed on long-term disability. As a result, his pay gradually decreased to $2,596.00 per month, or approximately $31,152.00 a year. After taxes and deductions, Mr. Draper takes home around $1,900.00 per month, or $22,800.00 a year, in disposable income, about fifty percent of his previous adjusted gross income. He has therefore shown a decrease in his income. For multiple reasons, however, we do not find that this decrease in income justifies a reduction or elimination of his maintenance payments.

First, the reason for the drop in income was Mr. Draper's decision to quit work and depend on long-term disability. Mr. Draper cites us to Dow v. Dow, 728 S.W.2d 714 (Mo.App.1987), and Holt v. Holt, 633 S.W.2d 171 (Mo.App.1982), which he says hold that a disability or "forced retirement" resulting in lower income is a substantial and continuing change of circumstance. Neither case holds that such a forced retirement is per se evidence of significant changed circumstances, however. Rather, the cases merely recognized that disability, forced retirement, or other causes of decreased future earning potential, as well as unemployment, are relevant factors to consider when weighing whether or not a spouse is able to pay his or her maintenance obligation while still meeting his or her own financial needs.

Second, while Mr. Draper has shown that he was placed on long-term disability at the time of the hearing, he presented no medical or vocational expert evidence to support his claim that his disability is permanent. If it is not, then his decision to seek early retirement is considered a voluntary reduction in income and cannot support a reduction in maintenance. See Leslie v. Leslie, 827 S.W.2d 180 (Mo. banc 1992) (early retirement is not evidence of substantial and continuing change of circumstance such as to allow modification of maintenance); Bradley v. Bradley, 880 S.W.2d 376 (Mo.App.1994) (fact husband voluntarily retired and reduced his income by fifty percent did not warrant modification of maintenance because there was evidence husband could supplement his retirement income with other employment).

Finally, assuming Mr. Draper's reduction in income is permanent and non-voluntary, he has not shown that he is unable to meet his reasonable needs based on that reduced income. To the contrary, calculations performed at the hearing demonstrate that even with the decrease in pay, and even if he continued to pay child support, Mr. Draper had excess funds remaining after his other obligations and expenses were subtracted from his monthly income. ³ Although Mr. Draper argues that he would not be able to meet his monthly expenses if he were to move out of his mother's residence, as he states he wishes he were able to do, we do not find this argument persuasive. The record shows that Mr. Draper chose to reside with his mother when the parties separated in 1992, at a time when he was taking home at least $45,000 a year. He continued to reside with his mother through 1996, when he was still taking home at least $45,000 a year. Therefore, although it is convenient for Mr. Draper to argue that he would now be unable to pay rent for a place of his own with his decreased income, the trial court was not required to believe that he had a desire to move since ...