Hartzell v. Hartzell

Decision Date22 September 1998
Docket NumberNo. 73044,73044
Citation976 S.W.2d 624
PartiesMaureen N. HARTZELL, Petitioner-Respondent, v. Stuart B. HARTZELL, Respondent-Appellant.
CourtMissouri Court of Appeals

Armstrong, Teasdale, Schlafly & Davis, Justin C. Cordonnier, Thomas B. Weaver, St. Louis, for appellant.

Newman, Goldfarb, Freyman & Klein, P.C., Morton R. Newman, St. Louis, for respondent.

KAROHL, Judge.

Stuart B. Hartzell, (Husband) appeals judgment denying his motion to modify maintenance provisions of a dissolution decree. We hold Maureen N. Hartzell's (Wife) admission that she is not disabled, and chooses not to make a present or future good faith effort to obtain employment constitutes a substantial change in circumstances which may form the basis for modification of a maintenance award.

The thirty-one year marriage of Husband and Wife was dissolved on February 6, 1995. The decree incorporated the parties' separation agreement and included an order that Husband pay to Wife modifiable maintenance in the amount of $4,000 per month. On January 29, 1997, one week short of two years after the decree of dissolution, Husband filed a motion to modify. The motion and amended motion alleged changes of circumstances that Wife: (1) without good cause, made no effort, since the dissolution to seek and obtain employment; (2) had the ability to provide for her reasonable needs through appropriate employment and income from her investments and assets; and, (3) has been able to accumulate assets over and above that which she received as part of the settlement, while meeting her reasonable needs. After Husband filed his motion to modify, but before the modification hearing, Wife moved from St. Louis, Missouri to East Hampton, New York.

At the time of the modification hearing, Husband was sixty years old and Wife was fifty-nine years old. Wife worked from 1974 to December 1993 as a travel agent at a travel agency owned by the parties. Wife was unemployed but continued to receive a salary from December, 1993 until entry of the dissolution decree. Wife testified she is retired and intends to remain retired. She does not claim any disability and does not dispute that she has not been employed since the dissolution solely because she chose not to work. Husband does not dispute his ability to pay the dissolution decree maintenance award. There is also no dispute that the maintenance award proposed in a separation agreement was decretal maintenance. It was therefore, subject to modification, unless expressly limited. Section 452.325.6 RSMo 1994; Paynton v. Paynton, 914 S.W.2d 63, 65 (Mo.App. E.D.1996).

The motion court found:

10. ... The circumstances of the parties at the time of the Dissolution have not changed significantly, if at all ... The Court finds that any of the changes noted are not established as substantial or continuing, rather it is the known circumstances at the time of Dissolution that are continuing.

11. That the Court finds that in consideration of the length of marriage, [Wife's] age, education and training, the Separation Agreement and distribution of property that [Wife] was not required nor would it be reasonable for her to be expected to seek and obtain employment to become self-supporting, further, in the event she did seek employment, that she would be unable to obtain employment with her lack of skills with computers, typing and organizationally to compete in the travel industry and to find sufficient employment to become self-supporting, especially in the short time that has lapsed since the date of Dissolution.

The parties agree the principal issue is whether the court abused its discretion in finding a total failure to prove a change in circumstances so substantial and continuing as to make the terms of the original decree unreasonable, as required by section 452.370 RSMo 1994. However, they describe the principal issue differently. Husband's allegation was that without good cause Wife had made no effort to seek and obtain employment and that she had the ability to contribute to her reasonable needs through appropriate employment. Wife contends that the period of two years between the date of the dissolution decree and the filing of the motion to modify is insufficient to support a finding of a substantial change of circumstance.

Pursuant Rule 73.01(c) we will affirm a ruling on a motion to modify unless there is no substantial evidence to support it, it is against the weight of the evidence or it erroneously declares or applies the law. Halliday v. Boland, 813 S.W.2d 34, 36 (Mo.App.1991). We accept all reasonable inferences and evidence favorable to the order and disregard all contrary inferences. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Pursuant to section 452.370 a...

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13 cases
  • In re the Marriage Of: Stacey P. Cornella And Frank A. Cornella.Stacey P. Cornella
    • United States
    • Missouri Court of Appeals
    • February 22, 2011
    ...and obtain employment without good cause is a changed circumstance justifying modification of a maintenance award. Hartzell v. Hartzell, 976 S.W.2d 624, 626 (Mo.App.1998); Markowski v. Markowski, 736 S.W.2d 463, 466 (Mo.App.1987). “A court must consider the obligation of a spouse to contrib......
  • Lindo v. Higginbotham
    • United States
    • Missouri Court of Appeals
    • November 29, 2016
    ...that Lindo was either underemployed or had a prospect of significant advancement with her current job. See, e.g. Hartzell v. Hartzell , 976 S.W.2d 624, 626 (Mo. App. E.D. 1998). Lindo did, however, concede that she may be eligible to receive a portion of Higginbotham's social security benef......
  • Hammer v. Hammer
    • United States
    • Missouri Court of Appeals
    • July 27, 2004
    ...need, as reflected by the extent to which that spouse's expenses exceed his or her ability to pay those expenses." Hartzell v. Hartzell, 976 S.W.2d 624, 626 (Mo.App.1998). The burden is on the spouse seeking maintenance to prove the amount of those expenses. Cohen v. Cohen, 73 S.W.3d 39, 50......
  • Evans v. Evans
    • United States
    • Missouri Court of Appeals
    • May 1, 2001
    ...at the minimum wage. A court should consider the obligation of a spouse to contribute to his or her own support. Hartzell v. Hartzell, 976 S.W.2d 624, 626 (Mo. App. 1998). It is the duty of a spouse receiving maintenance to expend a good faith effort within a reasonable time to obtain emplo......
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