Foster v. Foster
| Decision Date | 26 June 1984 |
| Docket Number | No. 47987,47987 |
| Citation | 673 S.W.2d 108 |
| Parties | A. Bryant FOSTER, Respondent, v. Judith Ann FOSTER, Appellant. |
| Court | Missouri Court of Appeals |
Jerry J. Murphy, St. Louis, for appellant.
Bernard A. Barken, Clayton, for respondent.
Husband filed a petition for dissolution against wife in 1977. The parties were married in May of 1961. Two daughters were born of the marriage; Louisa, born December 30, 1963 and Nayla, born February 26, 1969. The parties entered into a separation agreement which was found by the court not to be unconscionable. The marriage was dissolved on October 13, 1977 with the separation agreement being incorporated into the decree of dissolution. As provided in the separation agreement, the care and custody of the minor children were awarded to the mother. Husband was granted reasonable rights of visitation. Husband was to pay wife child support in the sum of $212.50 per month, per child. The court further awarded maintenance to the wife in the amount of $1,125.00 per month. The separation agreement provided the husband should pay all reasonable extraordinary medical and dental expenses of the children. It further provided that the husband would pay for college education for the children. Responsibility for payment of pre-college private school education and language lessons for the children was not resolved, but as stated in the agreements, the parties "shall attempt to work these matters out on an amicable basis." The separation agreement made further provisions as to the disposition of the marital property.
In October, 1981, wife filed a motion to modify the decree of dissolution. As grounds, she alleged that since the time of the decree husband's income had dramatically increased and the needs of the respondent, both for herself and the children, had also increased. This motion to modify culminated with a signed stipulation and agreement of the parties. In accordance with that stipulation, on December 29, 1981, the court ordered the husband to pay wife maintenance in the amount of $2,000.00 per month and reduced the child support for each of the two children to the sum of $200.00 per month, for each child.
On March 15, 1983, respondent filed another motion to modify. Husband filed a motion to dismiss alleging the petition failed to state a claim for relief. On September 22, 1983, the court heard and granted husband's motion to dismiss. The order dismissing also contained a stipulation which modified the decree. It provided that the husband pay tuition and expenses for Nayla at Villa Duchesne and changed the temporary custody arrangements. The order was signed by counsel for both parties.
The wife filed a motion for reconsideration and vacation of the order dismissing the motion to modify and requesting leave to file an amended motion. The motion was denied. Wife appeals, contending that the court erred in dismissing the motion to modify.
The scope of review of the motions to dismiss requires an examination of the pleadings allowing them their broadest meaning, construing the allegations as favorable to the movant, and determining whether a ground for relief had been stated under substantive principles of law. Porter v. Crawford & Company, 611 S.W.2d 265, 266 (Mo.App.1980). Here, in order to state a claim for relief, wife must plead a change of circumstances from the last modification that is "so substantial and continuing as to make the terms [of the previous modification] unreasonable." § 452.370, RSMo.Supp.1983. In re Marriage of Goodrich, 622 S.W.2d 411, 413 (Mo.App.1981).
Wife's motion alleges changed conditions in two paragraphs. The fifth paragraph states, "that since the rendition of the Decree of Dissolution, there has been a substantial and continuing change of circumstances relating to the temporary custody of Nayla C. Foster, ..." On its face these allegations would not be sufficient to entitle movant to relief because they allege change of circumstances since the decree of dissolution rather than from the original modification.
The fourth paragraph of wife's motion to modify states four grounds for relief which she alleges are substantial and continuing changes of circumstances. We consider them in reverse. Subsection (d) states, "The aforesaid minor child has expressed a strong desire to attend Villa Duchesne for her high school education, as did her older sister...
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