Light v. Light

• Citation: 753 S.W.2d 628
• Decision Date: 29 June 1988
• Docket Number: 15242,Nos. 15239,s. 15239
• Parties: Betty Fay LIGHT, Petitioner-Respondent-Cross-Appellant, v. Delbert D. LIGHT, Respondent-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 628

753 S.W.2d 628

Betty Fay LIGHT, Petitioner-Respondent-Cross-Appellant, v. Delbert D. LIGHT, Respondent-Appellant.

Nos. 15239, 15242.

Missouri Court of Appeals,

Southern District,

Division Two.

June 29, 1988.

Motion for Rehearing and/or Transfer to

Denied and Overruled July 19, 1988.

C. Clifford Schwartz, Shaw, Howlett & Schwartz, Clayton, for respondent-appellant.

John D. Beger, Rolla, for petitioner-respondent-cross-appellant.

MAUS, Judge.

By his motion to modify, Delbert D. Light (husband) sought a reduction in monthly maintenance to his former wife Betty Fay Light (wife). By her cross-motion, the wife sought an increase in that maintenance. Following a hearing in April, 1987, the trial court denied both motions. Each party has appealed. The appeals have been consolidated. An outline of the basic facts follows.

The marriage of the parties was dissolved on April 12, 1983. The only child of the marriage, a daughter, was emancipated. The husband was 50 years old. He was employed as a sheet metal worker at McDonnell Douglas, where he had worked for 27 years. He earned $27,710.12 in 1983. His net weekly check was for $334. The wife was 46 years old. She had an eighth grade education and no special skills. She was unemployed. The husband was awarded proceeds from the sale of the cattle and hogs in the amount of $11,900, farm equipment valued at $3,475, hay valued at $5,000, cash assets of $6,380, a 1979 Oldsmobile and miscellaneous personal property valued at $320. The wife was awarded the home which was on a 40-acre tract in Maries County, household goods valued at $3,100, a savings account of $1,200 and a 1977 Chevrolet pickup truck. She was also awarded maintenance of $500 per month.

The husband remarried in July, 1983. He and his present wife live in Bridgeton, Missouri. The present wife's daughter and her grandson live with them. The husband is still employed at McDonnell Douglas. In 1985 he made approximately $31,000. He estimated that in 1986 he made $27,000. At the time of the hearing his net weekly check was for $354. His present wife is also employed at McDonnell Douglas. In 1986 she earned $36,000. The husband and his present wife maintain the daughter and her child.

In June, 1983, the wife left the farm to reside with her daughter and son-in-law and their two small children in Texas. The son-in-law was in the Navy. That same year the family group moved to Oak Harbor, Washington. The wife baby-sits with her grandchildren. From June, 1986, to February, 1987, she also worked two hours a day at a child day-care center serving lunches. She made $4.56 per hour. In Washington she became acquainted with one Dale Campbell. She spends some time with Dale Campbell. She denied they were married or that he supported her. He did accompany and stay with her on a trip to Maries County to get her furniture.

In 1986, the husband was diagnosed as having Parkinson's disease. He takes four medications daily. He sees his physician each month and a specialist three or four times per year. He suffers from shaking, body rigidity, difficulty in walking and other symptoms associated with Parkinson's disease. At the time of the hearing, he had progressed to stage III of the disease, which is categorized as having five stages. He estimated that in 1986 he missed one-third of the work days, although he was paid for those days. He said co-workers cover for his employment handicaps. He could retire on medical benefits of up to $800 per month. He would like to retire, but because of the payment of maintenance he cannot. When asked if he could work, the husband replied, "I wouldn't say I'm able to, but I have to." He stated that he expected to work for the foreseeable future, "until I can get this straightened up, if I'm able to get in."

As stated, at the time of the hearing the wife was living with her daughter and son-in-law in Washington. The son-in-law was still in the Navy and Betty Fay Light is carried as his dependent. She shops in the Navy commissary and the Navy pays for medical expenses and some of her medicine. The son-in-law does not intend to reenlist in the Navy. Her privileges were expected to terminate in September, 1987. The wife testified that since the dissolution her physical condition had deteriorated. The Missouri doctor who was the wife's physician from 1976 to 1983 examined her in March, 1987. His testimony was to the following effect. In 1983 the former wife suffered from bipolar depression, diabetes and seronegative rheumatoid arthritis. Her arthritis now affects multiple joints. Her condition in 1987 was worse than it was in 1983. She has also developed deltoid bursitis and polycystic breast disease. In his opinion the wife is permanently disabled and not able to be employed.

The fundamental legal principles determinative of these appeals are well established. "It is not every change of circumstances that is a basis for a modification." Calicott v. Calicott, 677 S.W.2d 953 (Mo.App.1984). "[A]ny decree respecting maintenance or support may be modified ... only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable." § 452.370.1, RSMo 1986. "[T]he legislature in enacting § 452.370 intended to require a stricter standard for modification of a decree of dissolution than was formerly required." Seelig v. Seelig, 540 S.W.2d 142, 147 (Mo.App.1976). The burden of demonstrating a substantial change that requires modification is upon the movant. Bunch v. Bunch, 746 S.W.2d 634 (Mo.App.1988). The credibility of the witnesses and reasonable inferences to be drawn from the evidence is within the province of the trial court. Wood v. Wood, 709 S.W.2d 143 (Mo.App.1986). Appellate review of the decision by the trial court is under the standard set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976).

The husband's first point is that the trial court erred "by deciding the main issue before considering the medical evidence of the ability of the spouse by whom maintenance was being paid to meet his needs." He adds, "[t]rial court should have read the medical depositions of the attending physicians showing appellant to be in stage III of Parkinson's disease before reaching a decision." At the hearing, the husband testified at length concerning his affliction with Parkinson's disease. He described in detail his symptoms and the limitations they imposed upon his activities. He also introduced, without reading to the court, two medical depositions which establish the husband has Parkinson's disease, discuss the symptoms of that disease and its progression, the husband's current condition and give a prognosis of his future condition.

At the conclusion of the testimony, the trial court made some comments upon the issues. These included a preliminary observation that the trial court could not reduce maintenance because the husband was still working and made the same amount of money he did in 1983. The trial court stated it believed it should act only on what had happened and not on what may happen in the future. However, the trial court also made two things very clear. He stated "probably what the order of the Court's going to be" and that he wanted the parties to know the reasons for that order. Second, he indicated that his conclusion was tentative and that the court would read and consider the medical depositions before entering final judgment.

Taken in context, the remarks of the trial court demonstrate a thorough consideration of the testimony. They also show thoughtful concern that the parties understand that the probable decision would be based upon a legal principle and not a whim. The husband's implied assertion the trial court did not read the medical depositions before reaching a final decision is without support. His first point is without merit.

The first point as stated in appellant's brief requires no further consideration. However, in the interest of the parties, it is appropriate to consider the husband's argument that the trial court erred in not reducing maintenance because of the prognosis of the husband's physical condition.

The underlying limitation upon the trial court is statutory. "[T]he provisions of any decree respecting maintenance or support may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable." § 452.370.1 (emphasis added). The statute does not bar the court from taking cognizance of all anticipated future events. However, the rule generally applied has been summarized as follows.

The courts will not ordinarily modify a decree for alimony or maintenance on the ground that it is expected that the circumstances will change in the future. Even though the applicant believes that the prospective change is certain to occur he should ordinarily wait until it has actually occurred before applying for relief.

Annot., Modification of Alimony Decree, 18 A.L.R.2d 10, 22 (1951). That rule is recognized in this state. Crowell v. Crowell, 742 S.W.2d 244 (Mo.App.1987); Berman v. Berman, 701 S.W.2d 781 (Mo.App.1985).

That principle was applied in Lampert v. Lampert, 388 N.W.2d 899 (S.D.1986), a case involving a factual situation similar to the circumstances of the husband. In Lampert, the physician husband had contracted multiple sclerosis. He had reduced his working hours and his income had been reduced 41%. Neverthel...