Haynes v. Almutter

• Decision Date: 29 August 2000
• Citation: 25 S.W.3d 667
• Parties: (Mo.App. W.D. 2000) Anne Marie Haynes, Appellant v. Wasif Fadel Mohammed Almuttar, Respondent WD57696 0
• Court: Missouri Court of Appeals

25 S.W.3d 667 (Mo.App. W.D. 2000)

Anne Marie Haynes, Appellant v. Wasif Fadel Mohammed Almuttar, Respondent

WD57696

Missouri Court of Appeals Western District

08/29/2000

Appeal From: Circuit court of Nodaway County, Hon. John C. Andrews

Counsel for Appellant: Craig D. Ritchie

Counsel for Respondent: Thomas R. Summers

Opinion Summary: Anne Marie Haynes appeals the trial court's judgment modifying a decree of dissolution of marriage with regard to her award of maintenance and its modification.

Division Four holds: There was a substantial and continuing change of circumstances, but because the original dissolution decree specifically stated that Haynes was not required to work, the change of circumstances did not warrant modification at the time of trial. The trial court's prospective reduction and termination of maintenance was based on speculation and was therefore improper. However, if Haynes fails to make a good-faith effort to seek employment and work toward achieving financial independence within a reasonable time following this court's mandate, such failure may form the basis for modification of her maintenance award in the future. The trial court was without statutory authority to designate its judgment non-modifiable with respect to the maintenance modification.

Victor C. Howard, Judge

Anne Marie Haynes appeals the trial court's judgment modifying a decree of dissolution of marriage with regard to her award of maintenance. Haynes raises three points on appeal. First, she claims the trial court erred in modifying her maintenance award because her former husband, Wasif Fadel Mohammed Almuttar, failed to demonstrate a substantial change of circumstances warranting modification. Second, Haynes claims the trial court erred in prospectively ordering that her maintenance decrease by one-fifth each year for five years until the maintenance terminates because Almuttar failed to present evidence of an imminent change in her financial condition. Third, Haynes claims the trial court erred in designating her maintenance as non-modifiable because the court lacks the statutory authority to make such a designation in a judgment modifying maintenance.

We reverse and remand.

Facts

On October 27, 1994, the trial court entered a judgment dissolving the marriage of Anne Marie Haynes and Wasif Fadel Mohammed Almuttar. The court ordered Almuttar to pay child support in the amount of $2,677 per month and spousal maintenance in the amount of $2,800 per month. The court found that Haynes was unable to support herself through appropriate employment and was the custodian of the minor children whose condition and circumstances made it appropriate that she not be required to seek employment outside the home.

On October 28, 1998, Haynes filed a motion to modify the decree of dissolution of marriage as to child support and maintenance. On November 17, 1998, Almuttar filed an answer and counter-motion seeking to reduce child support and terminate spousal maintenance. Following trial, the court entered its judgment modifying the decree of dissolution of marriage, reducing Haynes' maintenance. The court found that "the maintenance should be reduced in order to encourage [Haynes] to be self-supporting." The trial court held as follows:

Effective January 1, 2000, Respondent shall pay to Petitioner periodic spousal maintenance in the amount of ...$2,240.00 per month ...until January 1, 2001, when Respondent shall pay to Petitioner periodic spousal maintenance in the amount of ...$1,680.00 per month ...until January 1, 2002, when Respondent shall pay to Petitioner periodic spousal maintenance in the amount of ...$1,120.00 per month ...until January 1, 2003, when Respondent shall pay to Petitioner periodic spousal maintenance in the amount of ...$560.00 per month ...to terminate upon the payment made on the 1st day of December, 2003. This maintenance order is non-modifiable ....

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This appeal follows.

Standard of Review

Our review of a ruling on a motion to modify maintenance is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm the trial court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. We accept as true the evidence and all inferences therefrom that are favorable to the trial court's judgment and disregard all contrary evidence. We will defer to the trial court even if the evidence could support a different conclusion.

Sprouse v. Sprouse, 969 S.W.2d 836, 837-38 (Mo.App. W.D. 1998) (citations omitted). We give deference to the trial court's greater opportunity to judge the credibility of witnesses and the weight given opinion evidence. Markowski v. Markowski, 736 S.W.2d 463, 465 (Mo.App. W.D. 1987). The trial court is given considerable discretion as to the allowance and the amount of maintenance payments, and it is the appellant's burden on appeal to demonstrate an abuse of that discretion. Id. When, as here, the record contains no formal request for findings of fact and conclusions of law, all fact issues relative to this appeal are deemed found in accordance with the trial court's judgment. Stoutimore v. Stoutimore, 684 S.W.2d 344, 345 (Mo.App. W.D. 1984).

Point I

Haynes' first point on appeal is that the trial court erred in modifying her maintenance award because Almuttar failed to demonstrate a substantial change of circumstances warranting modification.

Section 452.370.1¹ provides, in relevant part, as follows:

Except as otherwise provided in subsection 6 of section 452.325, the provisions of any judgment respecting maintenance ...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 ...maintenance judgment, the court, in determining whether or not a substantial change in circumstances has occurred, shall consider all financial resources of both parties, including the extent to which the reasonable expenses of either party are, or should be, shared by a spouse or other person with whom he or she cohabits, and the earning capacity of a party who is not employed.

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Changed circumstances sufficient to support modification of maintenance must be proven by detailed evidence. Lemmon v. Lemmon, 958 S.W.2d 601, 603 (Mo.App. W.D. 1998). "The statutory standard for modification is designed to be strict so as to discourage recurrent and insubstantial motions for modification." Id. The burden of proving a substantial and continuing change of circumstances rests with the moving party. Id. "Not every change of circumstances will automatically justify a modification of an original dissolution decree, as these motions will be 'appropriate only in unusual situations.'" Crawford v. Crawford, 986 S.W.2d 525, 528 (Mo.App. W.D. 1999), quoting McKinney v. McKinney, 901 S.W.2d 227, 229 (Mo.App. 1995). "In a modification proceeding, the concept of 'changed circumstances' entails a departure from prior known conditions." Lemmon, 958 S.W.2d at 604.

The original award of maintenance in the decree of dissolution of marriage provided as follows:

Petitioner lacks sufficient property, including marital property apportioned to her to provide for her reasonable needs; is unable to support herself through appropriate employment; and, is the custodian of the minor children whose condition and circumstances make it appropriate she not be required to seek employment outside the home; and the Respondent is able-bodied and well able to contribute to the support of the Petitioner.

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Haynes contends that she considered the trial court's findings in the dissolution decree a "mandate" for her to not work. While we do not find that the language in the trial court's decree was a mandate that Haynes not work, the trial court's plain language indicates that she was not required to seek employment.

However, six years have passed since the decree of dissolution. At the time of the dissolution, the children were 8, 10, and 13 years old. The fact that the children are six years older now may not, by itself, warrant a modification of maintenance. Witwicky v. Witwicky, 728 S.W.2d 313, 315 (Mo.App. E.D. 1987) (finding that where the school-age children becoming fifteen months older was expected and predictable at the time of the dissolution hearing, that change was not sufficient to warrant a maintenance modification). However, there was other evidence presented that indicated that since the original dissolution decree, a substantial and continuing change had taken place which would allow Haynes to work outside the home and help support herself. While Haynes placed great emphasis on adherence to Islam's requirement that a parent supervise the children at all times, there was evidence presented that Haynes spends several evenings a week working out at a gym. In addition, Haynes testified that the Islamic religion was "forced" on her during the marriage, and at the time of the divorce she asked her lawyer if she should start taking the children to church. Furthermore, Haynes testified extensively about what the children were "supposed" to do to conform with the Islamic religion, but not that they actually adhered to the requirements. The trial court could have reasonably found that Islam and its requirements were less important to Haynes now than they were at the time of trial, and that constituted a substantial and continuing change of circumstances.² However, because Haynes could have reasonably thought from the initial decree that the trial court was not requiring her to work, we decline to find the changes warranted modification at the time of trial. Point I is granted.

Point II

Haynes' second point on appeal is that the trial court erred in modifying her maintenance award by prospectively...