Halliday v. Boland, 58963

• Decision Date: 04 June 1991
• Docket Number: No. 58963,58963
• Citation: 813 S.W.2d 34
• Parties: Mary F. HALLIDAY f/k/a Mary Boland, Petitioner-Respondent, v. John J. BOLAND, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 34

813 S.W.2d 34

Mary F. HALLIDAY f/k/a Mary Boland, Petitioner-Respondent, v. John J. BOLAND, Respondent-Appellant.

No. 58963.

Missouri Court of Appeals,

Eastern District,

Division Three.

June 4, 1991.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 3, 1991.

Application to Transfer Denied Sept. 10, 1991.

Edward C. Vancil and John M. Cichelero, Edward C. Vancil & Associates, Inc., Clayton, for respondent-appellant.

Leonard J. Frankel, Guilfoil, Petzall & Shoemake, St. Louis, for petitioner-respondent.

CRANE, Judge.

Former husband appeals from the order of the trial court denying his motion to modify a decree of dissolution in which he sought to terminate maintenance payments. We affirm.

John J. Boland and Mary F. Halliday were married for six years, from April 22, 1975 until July 9, 1981, at which time the marriage was dissolved. No children were born of the marriage, however Mr. Boland, a widower, had seven children and Ms. Halliday had four children from her previous marriage. Ms. Halliday did not work outside the home during her marriage to Mr. Boland or during her previous marriage. She had one year of college education. At the time of the dissolution of her marriage to Mr. Boland, she was forty- five years old and had two minor children living with her. The dissolution decree incorporated a separation agreement executed by the parties which provided in part:

...in light of Wife's expressed desire to seek experience or training to equip her for gainful employment, that it is reasonable for and Husband agrees to pay to Wife maintenance as follows:

A. $2,500 per month for a period of twelve months, commencing July 1, 1981 and ending June 30, 1982;

B. $2,000 per month for a period of twelve months, commencing July 1, 1982 and ending June 30, 1983;

C. $1,500 per month commencing on July 1, 1983 and continuing thereafter.

Said maintenance payment shall continue until the first to occur:

A. Wife's remarriage;

B. The death of either party;

C. The amount and/or period of time is modified by the Court.

Nine months after the dissolution, Ms. Halliday began full-time employment as a sales clerk. Since 1986, she has been employed as a receptionist in a doctors' office, earning approximately $17,000 per year. In May, 1989, Mr. Boland filed his motion to modify the decree seeking termination of his obligation to pay maintenance. After discovery and a hearing, the trial court denied the motion, finding that Ms. Halliday's reasonable expenses are approximately $3,000 per month, that Mr. Boland's annual income had increased from $155,000 to $350,000 and that Mr. Boland could easily meet his own needs while continuing to contribute to Ms. Halliday's maintenance and assist her in paying attorney's fees. The trial court rejected the testimony of Mr. Boland's expert witness that Ms. Halliday could earn more had she sought proper professional counseling at the time of the decree and concluded that no change of circumstances had occurred which was so substantial and continuing that would make the original decree unreasonable. This appeal followed.

For his first point Mr. Boland argues that the trial court's order was erroneous because he offered uncontroverted evidence that Ms. Halliday had failed to seek training or experience or achieve self-sufficiency as required by the decree or by case law. The controlling statute is § 452.370 RSMo (Supp.1988) which provides, in part, that "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." The burden of proving substantial change lies with the movant. Mendelsohn v. Mendelsohn, 787 S.W.2d 321, 323 (Mo.App.1990). Review of the trial court's ruling on a motion to modify is limited to whether it is supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Id.

The record before the trial court indicates that Ms. Halliday has been almost continually engaged in full-time employment since the dissolution of her marriage. The decree did not require her to obtain training or experience or to become self-sufficient, nor did it provide that maintenance would terminate upon employment or self-sufficiency. Instead the decree provided for a decreasing amount of maintenance in view of Ms. Halliday's expressed desire to become gainfully employed. The decrease in the amount was agreed to as reasonable because the parties foresaw that Ms. Halliday would, with training or experience, be able to contribute increasing amounts to her own support. This did come about and Ms. Halliday is now earning $17,000 per year.

Likewise, no case requires a former spouse to become self-sufficient. The rule is that a former spouse receiving maintenance "is under a continuing duty to exert reasonable efforts to attain self-sufficiency and will not be permitted to benefit from inaction." Hicks v. Hicks, 798 S.W.2d 524, 527 (Mo.App.1990). Here, the record before the trial court sufficiently demonstrates that Ms. Halliday made such reasonable efforts by working full time, by periodically seeking new positions which promised either better experience or better pay, and by obtaining computer skills which she used in her current position.

The trial court did not err in finding that Mr. Boland had not made a showing of changed circumstances so substantial and continuing as to make the terms unreasonable. There are no such changed circumstances. The parties recognized in the decree that Ms. Halliday would become gainfully employed and that maintenance would be decreased according to the schedule in the decree. There was substantial evidence to support the trial court's finding that Ms. Halliday's income was insufficient to meet her reasonable needs. Mr. Boland's income has substantially increased since the decree. Given the great disparity between the parties' respective incomes, and the finding that Mr. Boland can easily meet his own financial needs while continuing to meet the maintenance obligation, modification is unwarranted. Mendelsohn, 787 S.W.2d at 324. Point One is denied.

For...