Lee v. Gornbein

• Decision Date: 20 January 2004
• Docket Number: No. WD 62161.,WD 62161.
• Citation: 124 S.W.3d 52
• Parties: Deborah Jane LEE (f/k/a Gornbein), Appellant, v. Randall Jay GORNBEIN, Respondent.
• Court: Missouri Court of Appeals

124 S.W.3d 52

Deborah Jane LEE (f/k/a Gornbein), Appellant, v. Randall Jay GORNBEIN, Respondent.

No. WD 62161.

Missouri Court of Appeals, Western District.

January 20, 2004.

Milton E. Harper, Jr., Columbia, MO, for Appellant.

Douglas F. Pugh, Columbia, MO, for Respondent.

Before THOMAS H. NEWTON, P.J., ROBERT G. ULRICH and PATRICIA A. BRECKENRIDGE.

THOMAS H. NEWTON, Presiding Judge.

Ms. Deborah Jane Lee appeals from the judgment of the trial court, which reduced the spousal maintenance obligation of her former husband, Mr. Randall Jay Gornbein, and denied her request for attorney's fees. We affirm in part, reverse in part, and enter judgment under Rule 84.14, reducing the maintenance award from $900 per month to $500 per month.

I. FACTUAL AND PROCEDURAL BACKGROUND

When Ms. Lee and Mr. Gornbein divorced in October 1999, the trial court awarded Ms. Lee $900 per month in maintenance. At that time, Ms. Lee worked for a Lowe's home improvement store in Columbia, Missouri. She continues to work there and has since changed jobs with an increase in pay. The trial court found that Ms. Lee earns $850 more per month than she did at the time of the divorce.

At the time of the original marital dissolution, Mr. Gornbein worked for Metropolitan Life Insurance Company (MetLife) as a salaried manager. After MetLife eliminated his job in April 2000, Mr. Gornbein accepted another job with MetLife as a commissioned salesman. Mr. Gornbein quit that job in March 2002 for personal reasons and now works for the Guardian Life Insurance Company. Since the divorce, Mr. Gornbein has remarried. In June 2001, shortly before remarrying, Mr. Gornbein and his new wife moved to her hometown of Edwardsville, Illinois, from which Mr. Gornbein now commutes to his job with Guardian in the St. Louis suburb of Chesterfield, Missouri.

In May 2001, Mr. Gornbein filed a motion to terminate or reduce his maintenance obligation. As grounds for modification, Mr. Gornbein cited Ms. Lee's receipt of money following the settlement of a personal injury lawsuit.¹ On January 15, 2002, Mr. Gornbein filed an amended motion to modify, where he cited a substantial involuntary decrease in his income since the divorce and a decrease in Ms. Lee's reasonable monthly expenses since the divorce.²

Ms. Lee filed a counter-motion to increase the maintenance obligation and requested that the trial court order Mr. Gornbein to pay her attorney's fees.

The trial court issued its judgment and reduced the maintenance from $900 per month to $400 per month. The trial court further denied Ms. Lee's request for attorney's fees.³

Ms. Lee raises six points on appeal. In the first five points, she challenges the sufficiency of the evidence to support the modification of the maintenance award. In her sixth point, she challenges the denial of her request for attorney's fees.

II. STANDARD OF REVIEW

"We will affirm a trial court's order modifying a dissolution decree unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law." Draper v. Draper, 982 S.W.2d 289, 291 (Mo.App. W.D.1998).

III. LEGAL ANALYSIS

A. General Principles

Once a trial court has awarded maintenance, it may modify that award "only upon a showing of changed circumstances so substantial and continuing as to make the terms [of the original award] unreasonable." § 452.370.1.⁴ The party seeking modification bears the burden of proving such changed circumstances with detailed evidence. Laffey v. Laffey, 72 S.W.3d 143, 147 (Mo.App. W.D.2002). "This statutory standard is designed to be strict so as to discourage recurrent and insubstantial motions for modification." Lamont v. Lamont, 922 S.W.2d 81, 85 (Mo.App. W.D.1996). Although the burden of proving such a change rests with the movant, we presume that the trial court's judgment is valid and the appellant has the burden of demonstrating that the judgment is incorrect. Adams v. Adams, 51 S.W.3d 541, 546 (Mo.App. W.D.2001).

Section 452.370.1 gives the trial court considerable discretion in modifying maintenance, and the appellant must demonstrate an abuse of that discretion. Id. The trial court abuses its discretion when its order is against the logic of the circumstances and is "`so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said [that] the trial court abused its discretion.'" Id. at 546-47 (quoting Nelson v. Nelson, 14 S.W.3d 645, 649 (Mo.App. E.D.2000)).

As a general rule, a "substantial and continuing" change in circumstances is one that renders the obligor unable to pay maintenance at the assigned rate or one that allows the recipient to meet his or her reasonable needs with less maintenance. Martino v. Martino, 33 S.W.3d 582, 584 (Mo.App. E.D.2000). While changes in income constitute one relevant factor in modification proceedings, modification is not required if the only change in circumstances is a decrease in the obligor's income or an increase in the recipient's income. Laffey, 72 S.W.3d at 148. In addition to changes in income, other relevant factors include the obligor's future earning potential and the ability to pay support while meeting his or her own financial needs; shared living expenses; remarriage; and custody of unemancipated children. Dow v. Dow, 728 S.W.2d 714, 716 (Mo.App. E.D.1987).

With these general principles in mind, we consider Ms. Lee's first five points. Four of the points relate in some manner to Mr. Gornbein's ability to pay the original maintenance award. We consider those points first. We then consider Ms. Lee's point regarding her reasonable needs.

B. Evidence Regarding Mr. Gornbein's Ability to Pay

1 Mr. Gornbein's Job Changes

The trial court expressly found that Mr. Gornbein's reduced income "is not because of his voluntary action" and assessed Mr. Gornbein's ability to pay maintenance based upon Mr. Gornbein's current rate of pay. In her fifth point, Ms. Lee argues that Mr. Gornbein voluntarily quit his old job for a new one in which he earns less money and that this does not constitute a substantial and continuing change in his circumstances under section 452.370.1. In her third point, she further argues that the trial court should have focused upon Mr. Gornbein's long-term earning capacity instead of his short-term rate of pay in the new job.

A voluntary reduction in income does not amount to a substantial and continuing change in circumstances. See, e.g., Draper, 982 S.W.2d at 292-93. See also Forhan v. Forhan, 693 S.W.2d 164, 165-66 (Mo.App. E.D.1985) (where child support obligor voluntarily quit his job as a salesman, and took jobs selling computers and working in an office supply business before starting his own consulting business, his decline in income was of his own choosing and his earning capacity remained the same.).⁵

Mr. Gornbein has changed jobs twice since the divorce. The first change occurred in April 2000, when MetLife consolidated three offices and eliminated his job as a salaried manager. By all accounts, this change was involuntary. Afterwards, Mr. Gornbein accepted another job with MetLife as a commissioned salesman. Although the new job with MetLife apparently was not as lucrative as the old one, Mr. Gornbein's income did not decrease uniformly, in part because of a decreasing incentive plan. In the dissolution year, 1999, he earned $66,121. In 2000, his gross income actually increased to $75,104, before falling to $50,701 in 2001.

The second job change occurred in March 2002, when Mr. Gornbein quit his job with MetLife and accepted a new job with Guardian Life Insurance Company (Guardian). This change was deliberate and voluntary. As Mr. Gornbein explained, he left MetLife because "[t]he situation at the office had continued to decline, and it was not a pleasant place to work." Cf. Forhan, 693 S.W.2d at 166 ("In effect, husband's decline in income was of his own choosing. His health was fine. There was no reason other than voluntary career decision that husband's income decreased. His earning capacity remained the same.").

We disagree with Mr. Gornbein that Markowski v. Markowski supports the proposition that such a job change is involuntary. See 736 S.W.2d 463 (Mo.App.W.D.1987). The portion of Markowski that Mr. Gornbein refers to deals with a recipient spouse's obligation "to make a good faith effort to seek employment and achieve financial independence within a reasonable time...." Id. at 466. It does not deal with the obligor spouse's deliberate decision to take another job. We note, however, that another portion of Markowski does address the obligor spouse's deliberate decision to take another job and cites Forhan, supra, approvingly. See id.

Moreover, the evidence does not show that the decrease in income is permanent. Cf. Calicott v. Calicott, 677 S.W.2d 953, 956 (Mo.App. S.D.1984) (where husband took voluntary leave of absence from employment to pursue doctorate degree he did not show that the attendant reduction in income was permanent). At Guardian, Mr. Gornbein earns a base salary of $42,000 per year ($3,500 per month), which is less than what he earned while working for MetLife. But Mr. Gornbein also has the opportunity to earn commissions at Guardian. Mr. Gornbein began working for Guardian while the modification action was pending, and he had not yet earned any commissions at the time that the trial court ruled on his motion to modify. Given his ongoing ability to earn such commissions in the future, however, it is questionable at best whether he has sustained a permanent decrease in income.

Ms. Lee further argues that the trial court should have considered Mr. Gornbein's earnings history rather than his rate of pay at the time of trial. Ms. Lee correctly reminds this court that "[a] party's...