Landreth v. Landreth

• Decision Date: 29 June 1959
• Docket Number: No. 7759,7759
• Citation: 326 S.W.2d 128
• Parties: Nancy Jane LANDRETH, Plaintiff-Appellant, v. Edward Harvey LANDRETH, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 128

326 S.W.2d 128

Nancy Jane LANDRETH, Plaintiff-Appellant, v. Edward Harvey LANDRETH, Defendant-Respondent.

No. 7759.

Springfield Court of Appeals, Missouri.

June 29, 1959.

Elroy S. Thomas, Joplin, for appellant.

Robert P. Warden, Joplin, for respondent.

McDOWELL, Judge.

Plaintiff, Nancy Jane Landreth, appeals from a judgment of the Circuit Court rendered on defendant's motion to modify a decree of divorce with respect to alimony.

Plaintiff obtained a decree of divorce from defendant in the Circuit Court of Jasper County, December 12, 1956. By said decree plaintiff was granted the care and custody of the two minor children, Jane Ann, age 14 years, and Frederick Harry, age 9, and defendant was ordered to pay plaintiff $175 per month child support and $200 monthly alimony, beginning January 1, 1957.

January 28, 1958, defendant, Edward H. Landreth, filed motion to modify the divorce decree, alleging that since the rendition of said decree plaintiff's income had materially increased and his income had materially decreased and he was no longer able to make the alimony payments.

The evidence shows that the trial court, by agreement of the parties, used defendant's income for 1955 as a basis for determining the amount of child support and alimony allowed.

Defendant's income for 1955 was derived from two sources:

1. 95% of all his income is from his interest in oil properties in Texas, which were given him by his father and aunt.

2. He was, and is, the sole owner of Morton Booth Company, also known as the Webb City Planing Mill, a manufacturing business located in Webb City.

He testified that in 1955 his gross income from Stanolind Oil Company was $12,060.47, and from Phillips Oil Company, $288.89, a total of $12,349.36, less production tax, left a balance of $11,400 approximately; that the Webb City Planing Mill operations showed a loss of $5,213.27 for 1955.

In the year 1957 defendant realized a gross income from Stanolind Oil Company of $10,133.64, and from Phillips Petroleum Company $450.04, less production tax of $472.

His loss in the operations of the Planing Mill for 1957 was $596.71 due to increased sales. Defendant explained he had been operating the Planing Mill at a loss through the years because he thought it would finally be a profitable business; that he now has a contract to produce cabinets for Sears-Roebuck for half a year.

He testified that his income from interest in the two oil properties is dependent upon regulations imposed by the State of Texas, the general level of demand for petroleum products and depletion of the oil reserves; that the production days allowed by Texas to the properties which produce defendant's oil income were two-thirds fewer days in 1958 than in 1955; that income from Stanolind in the future will be about $300 per month. A memorandum of income for the months of October, November and December, 1957, was introduced as defendant's exhibit (B) and shows monthly income from said oil properties to be $303, $504, and $655, respectively; that his income from oil properties in January, February, March, and April, 1958, averaged $475 per month.

Defendant produced his 1955 and 1957 income tax returns, which were introduced in evidence as plaintiff's exhibits 1, 2, and 3. They corroborated defendant's oral testimony that his net income from oil properties in 1955 was $11,400 and his loss on his Planing Mill operations for 1955 was $5,214.27; that his net income on oil properties for 1957 was $10,294.79 and his loss on Planing Mill was $596.71.

He testified that he borrowed money from the Citizens Bank of Joplin and from his sister in 1957 and that he now owes the bank $2,000 and his sister $2,000; that on May 26, 1958, he had $25 cash in his personal account and $700 in business account.

Defendant is 35 years of age, ablebodied. He holds a Master of Business Administration degree from the University of Oklahoma, has had four years experience as instructor in that university and training as a civil engineer.

In September, 1957, he re-married and lives in the home with his wife and pays no rent. He admits he has purchased an interest in a duck pond; that he took credit on his 1957 income tax return for expenses for money spent at Hidden Acres, a supper club, of $584.23; $242.13 expenses incurred at Wilders Inc., a social club; $186.49 expenses at Connor Hotel; $308 at the Joplin Club, and played bridge for small amounts. He said he lost money on the stock markets in 1954, 1955, but did not remember if he lost in 1957. He admitted attending football games in different states in 1957, bridge tournaments, etc.

Defendant paid the support and alimony judgment through November, 1957, but is in default on part of the payments due thereafter.

Plaintiff is 35 years of age, lives in a rented home in Joplin with her two children; when six years old she had polio and as a result, had an operation when she was 14, which left her with a slight limp. She weighs 103 pounds. She has a Bachelor of Science degree in elementary education from the University of Oklahoma, which enables her to teach in Missouri for two years. She is employed in the Joplin School system for 1957-58 at a salary of $3,600 per annum and has a contract for the following year at a salary of $3,800. In 1957 she received $1,200 for four months. If she continues teaching she will be required to go back for additional training to some school.

She submitted an intemized account of all her expenses incurred in 1957. The expenses for the first eight months prior to teaching were $380 per month. After she started teaching her average monthly expenses for the family were $514; while teaching she had additional expenses for clothes, cleaning, domestic hire and automobile expense. She purchased a washing machine and television. In addition to the $514 expenses, plaintiff owes $45 per month income tax. She has certain professional dues and has made small contributions to her church and for hospitalization insurance. She donated $12 to the United Fund.

Plaintiff owns 40 shares of stock in Ozark Engineering Company and receives a yearly dividend of $160.

At the time of hearing of this cause plaintiff had $20 in the bank, was indebted to her mother for $200 and to the Federal Government for income tax $357.60; $140 open account for clothing, etc., and an undisclosed amount to a C.P.A., and her attorney.

A modification of a judgment for alimony is dependent on a change in the circumstances of the parties between the time the judgment is entered and the time the motion for modification is filed. Shapiro v. Shapiro, Mo.App., 238 S.W.2d 886, 889; Schulte v. Schulte, Mo.Sup., 140 S.W.2d 51; section 452.070 RSMo 1949, V.A.M.S.; Shilkett v. Shilkett, Mo.App., 285 S.W.2d 67. In the last-cited case, this court in an opinion written by Judge Stone, stated on page 68[1-2] of 285 S.W.2d:

'At the outset, we emphasize the firmly-entrenched principles that a judgment for alimony, like any other judgment in an action at law, is res judicata as to all facts and conditions bearing upon the award and existing at the date of its rendition [Jourdan v. Jourdan, Mo.App., 251 S.W.2d 380, 382(3); Goldstein v. Goldstein, 237 Mo.App. 274, 165 S.W.2d 876, 879(4)--consult also Hurley v. Hurley, Mo.App., 284 S.W.2d 72; Lehr v. Lehr, Mo.App., 264 S.W.2d 35, 36(1); Shepard v. Shepard, Mo.App. 194 S.W.2d 319, 323(3); Foster v. Foster, Mo.App., 146 S.W.2d 849], and that authority for modification of a judgment for alimony is dependent upon proof of a subsequent change in conditions. Schulte v. Schulte, Mo., 140 S.W.2d 51, 54(5); Shapiro v. Shapiro, Mo.App., 238 S.W.2d 886, 889(1); State ex rel. Scott v. Harris, Mo.App., 136 S.W.2d 78, 80(1); Couplin v. Couplin, Mo.App., 121 S.W.2d 186, 187(2). Of course, the burden of showing such change rests upon the movant. Samland v. Samland, Mo.App., 277 S.W.2d 880, 881(4); Seigfreid v. Seigfreid, Mo.App., 187 S.W.2d 768, 769(1).'

Proceedings for modification of alimony decrees are reviewed de novo and the appellate court has the duty of making its own findings of facts and conclusions of law. Jourdan v. Jourdan, Mo.App., 251 S.W.2d 380; Coggburn v. Coggburn, Mo.App., 256 S.W.2d 836; Shilkett v. Shilkett, supra. In an action in which there is no definite or legal measure of recovery, which is especially true in the case at bar, the amount properly allowable is deemed a matter of discretion for the trial judge to such an extent that his decision will not be disturbed unless the amount awarded is so excessive or inadequate as to appear to be an abuse of judicial discretion. If it appears that the discretionary power was not soundly exercised, it becomes the duty of the reviewing court to reject the ruling made. Harriman v. Harriman, Mo.App., 281 S.W.2d 566, 570(2); Simon v. Simon, Mo.Sup., 248 S.W.2d 560, 568(8); Brinker v. Brinker, 360 Mo. 212, 227 S.W.2d 724, 725; Shapiro v. Shapiro, supra.

We need consider but one alleged error in this appeal and that is, did the trial court abuse its judicial discretion in sustaining defendant's motion to modify by completely eliminating all payments of alimony awarded in the divorce decree?

Defendant relies upon two grounds to sustain the action of the trial court: 1. That the income of plaintiff has been materially increased since the divorce decree, and, 2. Defendant's income has been materially decreased since the divorce decree.

The evidence as to plaintiff's income is undisputed. She secured a position as teacher in the Joplin schools in the year 1957-58 at a salary of $3,600 per annum and that for the four months in 1957 she received a salary of $1,200; that she will continue to teach at Joplin next year at an increased salary of $3,800 per annum.

The evidence as to defendant's income since the divorce decree shows his income has been materially increased. Defendant's evidence is that he had two sources of income: 1. Income from two oil properties, and,...