Habig v. Gohagan

• Citation: 890 S.W.2d 732
• Decision Date: 10 January 1995
• Docket Number: 65131,No. 65086,65086
• Parties: Annette L. HABIG, f/k/a Annette L. Gohagan, Plaintiff-Respondent, v. John K. GOHAGAN, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 732

890 S.W.2d 732

Annette L. HABIG, f/k/a Annette L. Gohagan, Plaintiff-Respondent, v. John K. GOHAGAN, Defendant-Appellant.

No. 65086, 65131.

Missouri Court of Appeals,

Eastern District,

Division Four.

Jan. 10, 1995.

Pat L. Simons, St. Louis, for appellant.

Corinne R. Coston, Law Offices of Mary Ann Weems, Clayton, for respondent.

KAROHL, Judge.

John Gohagan, husband, appeals an amended order of the circuit court that reduced child support for his son and a maintenance obligation. Annette Habig, wife, cross-appeals. There is no longer a need for child support because of emancipation. Both parties claim the trial court erred in its modification of maintenance. In addition, husband contends the trial court erred in denying his motion for relief from an order that granted wife an award for unpaid child support, because it was irregular. We affirm.

The pertinent facts are as follows. On April 20, 1990, the trial court entered a decree dissolving the marriage of the parties. At that time, husband was a tenured professor at Washington University and earned approximately $78,000 per year. Wife was a self-employed educational consultant who earned approximately $20,000 per year. The parties entered into a settlement agreement, which was incorporated into the decree. The parties agreed to divide their marital and separate property equally. Each received approximately $279,000 in property and cash. Husband agreed to pay wife monthly maintenance and child support in the amounts of $1716 and $652, respectively. The parties also agreed their son would be provided with a four-year college education through savings and a tuition remission plan husband had available through Washington University. Furthermore, husband agreed to provide the same amount available through the tuition remission plan of his employer if it were no longer available and also to pay up to $3500 per year for his son's graduate school expenses. If the parties disagreed, the agreement stipulated that the parties would submit their disputes to an arbitrator for settlement.

The agreement did not specify whether maintenance was modifiable. On or about June 15, 1990, the decree was modified by consent to clarify that the maintenance provision was modifiable and to provide that remarriage of husband would not be a change of circumstances that would justify a modification of maintenance.

In May 1990, husband accepted a two-year appointment as an "Expert" by the National Cancer Institute, a federal agency in Washington, D.C. Although the position paid $77,000 per year, which was less than husband was earning at Washington University, he believed it was an honor that would enable him to earn more when he returned to Washington University. Because the appointment was only temporary, husband was permitted to work for the National Cancer Institute and still retain his status as a tenured professor at Washington University. This enabled him to retain the university's benefits, including the tuition remission plan.

In June 1990, husband moved to the home of a cousin in New Jersey and lived there rent-free on weekends. During the week, he commuted to Washington, D.C., where he rented and lived in a small single room for $290 per month. After his move to New Jersey, husband renewed a childhood friendship with a woman who was divorcing. They married later in 1990, when her divorce became final. They then purchased a house in New Jersey for $130,000; each contributed $30,000 to the down payment. Husband further invested an additional $55,000 to remodel the home.

After the parties' divorce was granted, wife bought a home in St. Louis County from which she continued to operate her business. This home has a swimming pool, which wife stated was for the use of the parties' son, who continued to attend college outside St. Louis but lived with wife when school was not in session and he was not working or traveling elsewhere.

In 1992, when his two-year appointment ended, the National Cancer Institute offered husband a permanent position at a salary of $83,000, while Washington University offered husband only $63,000 if he returned. Because husband did not receive a better offer from Washington University, he accepted the position at the National Cancer Institute. At the time of the hearing on his motion to modify, husband was earning an annual salary of approximately $86,000.

On March 17, 1992, husband filed an amended motion to modify maintenance and child support. Thereafter, a dispute arose with respect to husband's obligation to pay college expenses and wife's use of the funds set aside for the child's education. In compliance with the terms of the settlement agreement, the matter was submitted for arbitration. The arbitration decision, rendered on May 26, 1992, found that husband was required to pay for the child's room and board as part of his obligation to pay college expenses and that wife had not misused any funds. A consent order was filed with the court on April 15, 1993, in which husband was ordered to pay $7958.61 to wife for unpaid college expenses. Subsequently, husband again amended his motion to modify, alleging, in effect, that his living expenses had increased because he had moved to New Jersey and that wife had chosen to increase her standard of living. Thus, he requested that child support, maintenance, and his obligation to pay college expenses be terminated.

On May 12, 1993, husband's newly-retained counsel moved to set aside the court's April consent order as irregular under Rule 76.01. The motion was denied on August 9, 1993. On September 7, 1993, the court held a hearing on husband's motion to modify. Husband presented evidence consisting of cancelled checks showing wife's membership in several social organizations, purchases of expensive clothing and meals, upkeep of her yard and swimming pool, and expenditures for vacations. In addition, wife conceded that she buys good-quality clothing at expensive stores, although she attempts to buy the items on sale. Furthermore, husband's expert, a CPA and a professor at Washington University, testified that wife counted her FICA tax obligation twice on her Statement of Income and Expenses. He also testified that some amounts that wife had deducted from her gross income to arrive at her taxable income had also been erroneously included as an expense in her Statement of Income and Expenses. Husband also offered wife's income tax returns into evidence.

On October 6, 1993, the court entered findings of fact and conclusions of law and an order granting, in part, husband's motion to modify. It reduced child support to $452 per month, retroactive to January 1, 1992, and ending September 3, 1993. It reduced maintenance to $1200 per month, retroactive to March 1, 1992. The order also denied wife's motion for attorney's fees.

Both parties moved for a new trial or to amend the October 6 order. Wife also moved to reopen the case to adduce new evidence. On November 10, 1993, the court denied these motions. However, it entered amended findings of fact and conclusions of law and an amended order, which reduced maintenance to $1325 per month, retroactive to April 1, 1992. The appeals of both parties followed.

In his first point on appeal, husband claims the trial court erred in failing to eliminate or further reduce maintenance, because the weight of the evidence shows that wife is able to meet all, or almost all, of her reasonable needs without any maintenance. Specifically, husband claims that the following findings of fact are against the weight of the evidence:

1. The income of [wife] from self-employment has increased since the dissolution of the parties' marriage in April of 1990. [Wife] received approximately $17,890.00 in 1990, $21,332.00 in 1991, and $25,440.00 in 1992 from self-employment.

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3. The Court does not find that [wife's] monthly income from self-employment is understated by $718.00 on her Statement of Income and Expense.

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9. [Wife's] current expenditures exceed her reasonable needs by approximately $400.00 a month.

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12. There was no credible evidence that [wife] is now working part time. She is conducting seminars at least 50 days a year. In addition to those, she spends considerable amounts of time developing and preparing for her business.

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14. [Wife] is healthy. There was no credible evidence that she is voluntarily or intentionally not working additional time.

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15. [Wife] cannot meet her reasonable monthly needs from her own earnings and investment income.

In contrast, wife's first point in her cross-appeal states the trial court erred in granting husband's motion to modify, because there was no change of circumstances that mandated reduction of maintenance and child support.

Our analysis is governed by § 452.370 RSMo Cum.Supp.1993, which requires a change in circumstances that is substantial and continuing, such as to render the original judgment unreasonable, before a motion to modify will be granted. It is the movant's burden to establish this fact. Campbell v. Campbell, 825 S.W.2d 319, 321 (Mo.App.1992). Reversal of a modification order is appropriate only when the order is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

In part we agree with husband that findings of fact # 1, # 3, and # 9 are against the weight of the evidence, when read together. Husband's expert testified that, according to her 1992 income tax return, wife deducted business expenses for the use of her home, which totaled $2054, from her "tentative profit" of $27,494, thereby reducing her earnings to $25,440. However, she also included these same expenses in her Statement of Income and Expenses, on which the court based its maintenance award. Wife's income tax return and Statement of Income of Expenses, which are...