Lindo v. Higginbotham
| Decision Date | 29 November 2016 |
| Docket Number | No. ED 103930,ED 103930 |
| Citation | 517 S.W.3d 558 |
| Parties | Chaille Anderson LINDO, Petitioner/Respondent v. John Thomas HIGGINBOTHAM, Respondent/Appellant. |
| Court | Missouri Court of Appeals |
Jonathan D. Marks, St. Louis, Missouri, for Appellant.
Christopher Karlen, Clayton, Missouri, for Respondent.
Appellant John Thomas Higginbotham appeals the trial court's judgment reducing, but not terminating, his maintenance obligation, retroactive to February 2015, and awarding Lindo attorney's fees. We affirm.
On June 10, 1996, the marriage of Appellant Higginbotham and Respondent Lindo was dissolved. In its judgment and dissolution of marriage, the trial court ordered Higginbotham to pay Lindo modifiable maintenance totaling $ 1,500 per month. It divided the parties' marital property and awarded Lindo certain retirement assets, including a portion of two pension plans. Lindo subsequently used some of the assets awarded to purchase two MetLife annuities.
In December 2005, Higginbotham filed a motion to modify seeking to reduce his maintenance obligation or to terminate it. After a hearing, his request for modification was denied in full in November 2007. On April 10, 2014, Higginbotham filed another motion to modify seeking to terminate his maintenance obligation based on his anticipated voluntary retirement on September 1, 2014. That motion to modify is the subject of this appeal.
In support of complete termination of maintenance, Higginbotham claimed that his income would decrease by half after he retired. He further claimed as a result of his retirement, Lindo would be eligible to receive her portion of his pension and Social Security benefits. Higginbotham claimed that the income from Lindo's portion of pension benefits, Social Security benefits, and employment enabled Lindo to support herself without spousal maintenance. Lindo filed a counter-motion to modify seeking an increase in maintenance, as well as a motion for attorney's fees and litigation costs.
In May 2015, the trial court held an evidentiary hearing on both parties' motions to modify and heard testimony from Lindo and Higginbotham. The trial court subsequently entered a modification judgment reducing Higginbotham's monthly maintenance obligation to $ 750 and ordered Higginbotham to pay $ 6,000 in attorney's fees and costs to Lindo. It further held that the modification was retroactive to February 2015, and the trial court ordered Lindo to pay Higginbotham $ 6,000 as reimbursement for maintenance overpaid for the months of February through September 2015. The trial court denied Lindo's motion to modify in its entirety.
Higginbotham appeals the trial court's judgment reducing rather than terminating maintenance, the retroactive effective date of Higginbotham's maintenance payments, and the trial court's award of attorney's fees to Lindo. We affirm the trial court's judgment.
In a court-tried action to modify a maintenance award, we conduct our review in accordance with the standards enunciated in Murphy v. Carron , 536 S.W.2d 30, 32 (Mo.banc 1976). We will uphold the court's judgment unless the judgment is not supported by the evidence, is against the weight of the evidence, or erroneously declares or applies the law. Id. "An appellate court will defer to the trial court on its decision to modify a maintenance award even if the evidence could support a different conclusion." Id.
The evidence and reasonable inferences drawn therefrom are viewed in the light most favorable to the prevailing party. Id. The trial court is in a superior position to judge witness credibility and sincerity and, as such, may accept all, part, or none of any witness's testimony. Id. All fact issues upon which the trial court failed to make specific findings are considered as having been found in accordance with the judgment. Rustemeyer v. Rustemeyer , 148 S.W.3d 867, 870 (Mo. App. E.D. 2004) ; Rule 73.01. The trial court's judgment modifying maintenance is reviewed for an abuse of discretion. Lee v. Gornbein , 124 S.W.3d 52, 56 (Mo. App. W.D. 2004).
In Point I of his appeal, Higginbotham argues the trial court erred when it denied in part his motion to modify because he presented evidence of changed circumstances sufficient to permanently and completely terminate his maintenance obligations. Specifically, he claims that Lindo attained self-sufficiency and receives—or is entitled to receive—income from investments, retirement benefits, and social security benefits that meet her reasonable needs. Lindo argues in response that the trial court did not err in reducing, rather than terminating, Higginbotham's maintenance payments. In support, she cites Leslie v. Leslie , 827 S.W.2d 180 (Mo. 1992), a Missouri Supreme Court decision holding that a trial court cannot consider income from retirement assets awarded in an original dissolution action as a change of circumstances when reviewing a motion to modify. She further argues she lacks sufficient income to provide for her reasonable needs.
The maintenance provisions of a divorce decree may be modified " ‘only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.’ " Fowler v. Fowler , 21 S.W.3d 1, 4 (Mo. App. E.D.2000) (quoting Section 452.370). Therefore, a party moving for modification of a maintenance order bears the burden of proving, through detailed evidence, that a substantial and continuing change has occurred, rendering the original award unreasonable. Sprouse v. Sprouse , 969 S.W.2d 836, 838 (Mo. App. W.D.1998). The period of time to which we refer for the necessary changes in circumstances to support the modification in maintenance dates from the prior order refusing modification. Hopkins v. Hopkins , 591 S.W.2d 716, 720 (Mo. App. E.D. 1979) ; see also Passanante v. Passanante , 364 S.W.3d 690, n.1 (Mo. App. E.D. 2012) for a discussion of res judicata principles surrounding a prior motion to modify.
Higginbotham first argues that in accordance with Hill v. Hill , 53 S.W.3d 114 (Mo. banc 2001) and Jung v. Jung , 886 S.W.2d 737 (Mo. App. E.D. 1994), the trial court erred when it failed to consider income Lindo is entitled to receive from pension benefits awarded in the original dissolution action. As a consequence of Higginbotham's early retirement, Higginbotham argues Lindo is entitled to receive income from certain retirement assets which she received by virtue of the original dissolution judgment. Higginbotham argues Lindo's eligibility for additional income constitutes a substantial change of circumstances sufficient under Missouri law to terminate his maintenance obligation.
The trial court's awards of marital property in the original dissolution action should take into account the respective values assigned to the marital property, including the value of the pension plans. Leslie v. Leslie , 827 S.W.2d at 182–83. While it is correct that, upon valuation and division of a pension plan, the trial court may take the sum of the pension into account in reducing an amount of maintenance awarded in an original dissolution proceeding, see e.g. , Schelsky v. Schelsky , 796 S.W.2d 888, 893 (Mo.App.1990), Hogan v. Hogan , 796 S.W.2d 400, 404 (Mo.App.1990), the law is well settled that a spouse is not required to consume his or her apportioned share of marital property in order to be entitled to an award of maintenance. Klenke v. Klenke , 742 S.W.2d 621, 624 (Mo.App.1987) ; Balven v. Balven , 734 S.W.2d 909, 914 (Mo.App.1987) ; Fausett v. Fausett , 661 S.W.2d 614, 617 (Mo.App.1983). Nor is a spouse required to consume an apportioned share of marital property in order to be entitled to retain an award of maintenance. Leslie , 827 S.W.2d at 183. However, the cases of Schelsky and Hogan involved the calculation of maintenance awarded in an original dissolution proceeding, and therefore offer limited guidance to our analysis. Instead, we find the Missouri Supreme Court case of Leslie v. Leslie determinative. In Leslie , Husband initiated a modification proceeding to eliminate Wife's maintenance award on the basis that Wife's receipt of pension income, as well as a future right to receive pension income, constituted a substantial change of circumstances. The trial court found no substantial and continuing change of circumstances, but reduced the maintenance award in an amount equal to a monthly pension payment. The trial court further ordered that the maintenance award be reduced in the future when the second of Wife's pensions began to pay.
In reversing the trial court, the Missouri Supreme Court held that Section 452.370.1 authorizes a court to modify maintenance only upon a showing of changed circumstances so substantial and continuing as to make the terms of the original decree unreasonable. It found that orders affecting the distribution of marital property are not modifiable and that the reduction in maintenance, dollar for dollar in the amount of the pension benefit, had the effect of impermissibly amending the original division of marital property. It further held that even accepting Husband's claim that the additional money Wife would receive from a pension would later constitute a...
To continue reading
Request your trial
-
Wagner v. Wagner
...award, we conduct our review in accordance with the standard enunciated in Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). Lindo , 517 S.W.3d at 562. "[T]his court is to affirm the trial court's judgment unless it is not supported by substantial evidence, is against the weight of the ......
-
Richardson v. Richardson
...determining maintenance." Although not raised or argued by either party, the trial court in its judgment cited to Lindo v. Higginbotham , 517 S.W.3d 558 (Mo. App. E.D. 2016) for the proposition that "the reduction of maintenance, dollar for dollar in the amount of the pension benefit, has t......