Hughes v. Hughes, 54606

• Decision Date: 29 November 1988
• Docket Number: No. 54606,54606
• Citation: 761 S.W.2d 274
• Parties: Lawrence Josiah HUGHES, Movant-Appellant, v. Imogene P. HUGHES, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 274

761 S.W.2d 274

Lawrence Josiah HUGHES, Movant-Appellant, v. Imogene P. HUGHES, Respondent-Respondent.

No. 54606.

Missouri Court of Appeals,

Eastern District,

Division One.

Nov. 29, 1988.

Claude C. Knight, St. Charles, for movant-appellant.

Ellsworth Cundiff, Jr., St. Charles, for respondent-respondent.

CRANDALL, Presiding Judge.

Husband, Lawrence J. Hughes, appeals from the trial court's denial of his motion to modify his court ordered maintenance obligation to wife, Imogene P. Hughes. We affirm.

The marriage of the parties was dissolved on March 18, 1983. The decree provided, among other things, that husband pay maintenance of $950 per month to wife. At the time of the dissolution, husband was a chemist employed by Monsanto Corporation at an annual salary of $48,000.

In December 1985, husband filed the present motion to modify. He alleged that there was a change in circumstances which required a modification of the decree as it related to maintenance; namely, that, as of December 1, 1985, he had retired from his position as Senior Research Specialist at Monsanto and that his income had been reduced. He also alleged that wife was employable, but had failed to contribute to her own support.

In February 1988 a hearing was held on husband's motion. Husband testified that he had a Ph.D. in organic chemistry. He retired from Monsanto Corporation at the age of 61 under an incentive retirement program. He feared he would be fired if he did not accept the early retirement offer; but no one in his department who rejected the offer was laid off. The incentive program provided husband with a lump sum of $30,000. In addition, husband received $129 per month over his retirement pay until age 62, when he could draw Social Security.

Husband's income and expense statement, which was admitted into evidence, showed that husband was receiving Social Security payments, a pension, interest, and dividends for a total income of $2,233 per month. His monthly expenses were $3,355. He testified that, since his retirement, he unsuccessfully sought employment in his field. He held a real estate brokers license. He was remarried and his present wife was employed on a part-time basis. At the time of the hearing, he was being trained in the use of computers.

Wife testified that she was 63 years of age. She was a high school graduate. For most of the 36 years of her marriage to husband, she was unemployed. Her primary responsibility during that time was raising the couple's five children. Since the dissolution, she has remained unemployed. She suffers from a degenerative bone disease which requires treatment through therapy and medication. At age 62 she elected not to draw her Social Security at a reduced rate. She resides in, and pays the mortgage on, the marital home which is 100 years old and in need of repairs. A young woman and her daughter live with wife and pay a portion of the utility bills. Another ex-husband of wife, who resides out of town, also stays with wife occasionally and, in return, does repair work around the house and buys groceries. Because of husband's failure to pay maintenance, it was necessary for wife to liquidate assets and to borrow money to meet expenses. Wife's income and expense statement indicated that she had no monthly income and that her monthly expenses were $1,420.

The trial court denied husband's motion to modify. The court also ordered husband to pay wife's attorney's fees.

Our review is guided by the standard enunciated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Further, we accept as true the evidence and permissible inferences therefrom favorable to the prevailing party and disregard the contradictory evidence. Ware v. Ware, 647 S.W.2d 582, 584 (Mo.App.1983). Deference is accorded the trial judge even if there is evidence which might support a different conclusion. Id.

In his first point, husband contends that the trial court erred in considering his past income and present earning capacity in determining his ability to pay maintenance.

A husband's past, present, and anticipated earning capacity may serve as competent evidence of his ability to pay the amounts awarded. Klinge v. Klinge, 554 S.W.2d 474, 476 (Mo.App.1977). Here, the record indicates that, prior to his retirement, husband was earning $4,000 per month. At retirement, his income was reduced to $2,333 per month. Although he was unable to find work after retiring, his testimony underscored his aptitude for holding a variety of jobs. He held advanced degrees in chemistry and was licensed to sell real estate. He was undergoing computer training. Yet, he had expended minimal effort, not only in seeking a job commensurate with his abilities, but also in developing his real estate business.

The court may impute income to husband according to what he could earn by the use of his best efforts to gain employment suitable to his capabilities. See Klinge, 554 S.W.2d at 476. The court may also interpret husband's lack of initiative in finding new work as a...