Hopkins v. Hopkins

• Decision Date: 25 November 2014
• Docket Number: WD 77267
• Citation: 449 S.W.3d 793
• Parties: Terry Annette Hopkins, Respondent, v. Charles David Hopkins, Appellant.
• Court: Missouri Court of Appeals

449 S.W.3d 793

Terry Annette Hopkins, Respondent

v.Charles David Hopkins, Appellant.

WD 77267

In the Missouri Court of Appeals Western District

OPINION FILED: November 25, 2014

Myron J. McNeal, Sedalia, MO, for respondent.

Steven A. Fritz, Sedalia, MO, for appellant.

Before Division Three: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge

Opinion

Cynthia L. Martin, Judge

Charles David Hopkins (“Husband”) appeals a trial court judgment denying his motion to terminate his maintenance obligation to Terry Annette Hopkins (“Wife”). Husband argues that the trial court erred (1) by declining to terminate maintenance even though it found that Wife and Robert Naylor (“Naylor”) were in a permanent relationship; (2) by failing to terminate maintenance even though Wife was assisting the four people living with her with some of their minor needs; and (3) because the trial court's judgment was against the weight of the evidence and not supported by substantial evidence.

Finding no error in the trial court's judgment, we affirm.

Factual and Procedural History¹

Husband and Wife were divorced on December 21, 1998. The divorce decree ordered Husband to pay $1,000 in maintenance to Wife. On June 29, 2001, maintenance was reduced to $489 a month following Husband's motion to terminate his maintenance obligation. On July 12, 2013, Husband filed a second motion to terminate his maintenance obligation. Wife filed a counter motion to modify maintenance, seeking to increase in maintenance to $800 a month.

Wife lives with four other people in the house she received as part of the divorce decree: her 30–year–old daughter, her 9–year–old grandson, her daughter's girlfriend, and Naylor. Along with the maintenance payment from Husband, Wife receives $578 a month in Social Security Disability payments. Her total monthly income is $1,067. Wife does not work on account of her disability. She has $1,155 in monthly expenses, which includes $104 a month that Wife pays toward her daughter's dental bill. Wife does not contribute to Naylor's expenses. Naylor and the other three residents in Wife's home live there rent free. The trial court concluded that at worst this resulted in some additional electrical consumption paid by Wife. Wife's daughter's girlfriend and Naylor each pay their share of Wife's water bill, cable bill, and cell phone bill. No other financial contributions are made to the household expenses. In all other respects, the trial court found that the residents in Wife's home provide for their own support.

Naylor has been living with Wife in the house for about six years. Each said that they “guess” they are living as husband and wife, but the trial court found that their relationship is more akin to roommates who have agreed to have sex. The two do not share a bedroom, do not commingle their finances, share no bank accounts or credit card accounts, and have no present intent to get married. The two had discussed marriage a couple of times but Naylor does not believe in marriage. The trial court found that cohabitation with Naylor “provides [Wife] emotional support but no financial support.” Other than Naylor's payment of his share of the water, cable and cell phone bills, Naylor has not contributed financially to Wife. There was no evidence that Wife or Naylor have provided for each other in their respective wills or named each other on any insurance policies.

Naylor works as a mechanic for a local business. Payroll records show that in 10 months in 2013, Naylor received $23,173.82 in net income. Naylor said he has monthly expenses of $1,629.29, which includes roughly $400 in medical and prescription drug costs. Naylor also has had recurring back problems that could affect his ability to work in the future.

Husband works as a maintenance man for a local company. Husband submitted that he makes $2,000 a month in net income, his wife receives $1,891 a month in Social Security Disability payments, and he has $4,404 in average monthly expenses. Husband said he wanted to eliminate his maintenance obligation both to make repairs to his home and to save money so he can retire.

Following a hearing, the trial court entered a judgment denying Husband's motion to terminate his maintenance obligation and Wife's cross-motion seeking to increase maintenance (“Judgment”).²

Husband appealed, alleging three points of error.

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).” Almuttar, 25 S.W.3d at 671. The trial court's judgment will be affirmed “unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law.” Id. “We give deference to the trial court's greater opportunity to judge the credibility of witnesses and the weight given opinion evidence.” Id. The trial court “may believe or disbelieve all, part, or none of the testimony of any witness.” Butts v. Butts, 906 S.W.2d 859, 861 (Mo.App.S.D.1995). “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.” Almuttar, 25 S.W.3d at 671. “We will defer to the trial court even if the evidence could support a different conclusion.” Sprouse v. Sprouse, 969 S.W.2d 836, 838 (Mo.App.W.D.1998).

Point One

In his first point on appeal, Husband argues that the trial court erred in denying his motion to terminate maintenance because Wife and Naylor are in a permanent relationship requiring the termination of maintenance as a matter of law without regard to the financial support Naylor actually provides Wife.

“Section 452.370.1 authorizes a court to modify maintenance upon a showing of changed circumstances so substantial and continuing as to make the terms of the original decree unreasonable.” Brooks v. Brooks, 957 S.W.2d 783, 786 (Mo.App.W.D.1997). Section 452.370.1³ provides in pertinent part:

In a proceeding for modification of any child support or 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....

“As the party seeking modification, [Husband] bears the burden of proving the changed circumstances.” C.K. v. B.K., 325 S.W.3d 431, 434 (Mo.App.E.D.2010).

Here, the trial court's Judgment characterized Wife's relationship with Naylor as “permanent,” and acknowledged that the cohabitation relationship had “taken on the permanence of marriage.” The trial court concluded, however, that it was nonetheless required by law to consider the economic implications of cohabitation before it could find that a substantial change in circumstances had occurred warranting modification of Husband's maintenance obligation. The trial court found although Wife “is cohabitating, ... the relationship lacks a commitment or agreement to support each other financially, which is an obligation of marriage.” The trial court expressly found that the cohabitation provides Wife “no financial support.” The trial court thus found that “[Wife] is in need of maintenance and [Husband] continues to have the ability to pay maintenance.” In effect, the trial court found that Husband did not sustain his burden to establish a substantial change in circumstances requiring the modification of his maintenance obligation.

Husband argues that this conclusion was in error as a matter of law, and that once the trial court found Wife and Naylor to be in a permanent relationship, it was bound to terminate maintenance, irrespective of financial support received by Wife as a result of the permanent relationship. Husband relies on Herzog v. Herzog, 761 S.W.2d 267 (Mo. App. E.D.1988), in support of this proposition. Herzog provides in pertinent part:

Where the relationship has achieved a permanence sufficient for the trial court to conclude that it has become a substitute for marriage, equitable principles warrant a conclusion that the spouse has abandoned his or her rights to support from the prior marriage and is looking to the new relationship in that regard. Permanence may be found from either the time involved or the intentions of the persons involved.... Where a permanent relationship exists ... the level of support obtained therefrom is, as with remarriage, irrelevant.

Id. at 268–69.

Husband's reading of Herzog is mistaken. To find a substantial change in circumstances warranting modification of maintenance based on cohabitation, Herzog requires the evidence to support the conclusion that the relationship is of a nature that it substitutes as a marriage. Though Herzog acknowledges that evidence regarding the amount of time parties have cohabited and their future intentions will be relevant to this inquiry, Herzog does not hold that the extent of financial support provided is irrelevant to this inquiry. In fact, Herzog directs that rules and principles of equity must be followed to determine the rights and obligations of the parties, which in turn requires an evaluation of “the new relationship created by the spouse receiving maintenance to determine whether equity justifies termination or modification of maintenance....” Id. at 268. Only where the evidence establishes that a cohabitation relationship substitutes as a marriage does Herzog direct that the level of financial support becomes immaterial to the decision to terminate maintenance.

This construction of Herzog is verified by the result reached in that case. Herzog declined to find a permanent relationship that was a substitute for marriage, and thus declined to modify maintenance, even though the spouse receiving maintenance admitted to cohabitating for a year with a man who earned a respectable wage but...