Lueckenotte v. Lueckenotte

Decision Date09 January 2001
Citation34 S.W.3d 387
Parties(Mo.banc 2001) . Richard Otto Lueckenotte, Appellant-Respondent, v. Mary Jane Lueckenotte, Respondent-Appellant. SC82868 Supreme Court of Missouri Handdown Date: 0
CourtMissouri Supreme Court

Appeal From: Circuit Court of Callaway County, Hon. Ellen S. Roper

Counsel for Appellant: Edward C. Clausen
Counsel for Respondent: Stephan Cotton Walker

Opinion Summary: The mother and father's marriage was dissolved by a dissolution decree that incorporated their separation agreement as to child support, health insurance, and maintenance. The trial court dismissed the father's motion to terminate maintenance to the mother, ordered him to pay the mother unpaid maintenance and attorney's fees, denied the mother's motion to modify child support and insurance, and refused her request for interest on the unpaid maintenance. Both appeal.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

Court en banc holds:

(1) Under the law at the time of the agreement and judgment, the maintenance provision was non-modifiable, notwithstanding the absence of a separate maintenance order to that effect. The judgment dismissing the motion to modify maintenance is affirmed. The trial court did not modify the maintenance provision by stating how the obligation shall be calculated; it corrected the father's misinterpretation.

(2) The father is delinquent in maintenance payments. Contrary to his argument, there is no complicated formula involving ambiguous terms. The father's maintenance obligation should be calculated based on his monthly income less his actual tax obligation and not his bimonthly withholdings. Substantial evidence supported the unpaid maintenance award. The Court affirms the judgment for delinquent maintenance. Affirming the denial of the judgment for past due child support precludes any deduction by the father for unpaid child support in the computation of maintenance to the mother.

(3) The father cannot deduct 401k contributions from his net income for maintenance computation purposes; the court's judgment is affirmed as to this issue.

(4) Section 454.520.4 makes interest on unpaid child support mandatory. The mother should have been awarded interest on the delinquent maintenance.

(5) The father's child support obligation should be extended because amended section 452.340 provides a basis for extending a parent's obligation past the age of presumed emancipation if the child is mentally and physically incapacitated to support himself, insolvent, and unmarried. The father's admission and the evidence support these findings.

(6) The judgment denying past support is affirmed. A trial court has no authority to modify child support retroactive to a date before the filing of the motion to modify and service of summons.

(7) The father does not owe the mother reimbursement for health insurance premiums from the date the child turned 21 to the date the mother filed a motion to modify. The father's obligation to provide health insurance co-existed with his obligation to pay child support. The mother can only seek reimbursement for the time of the filing of her motion to modify prospectively, and the trial court may make that determination on remand.

(8) The father fails to demonstrate how the court abused its discretion in awarding attorney's fees to the mother.

Opinion Author: PER CURIAM

Opinion Vote: AFFIRMED IN PART; REVERSED IN PART; REMANDED. All concur.

Opinion:

Richard O. Lueckenotte (Father) appeals from the trial court's dismissal of his motion to terminate and modify judgment of dissolution as to maintenance and its judgment ordering Father to pay Mary Jane Lueckenotte (Mother) $28,693 in unpaid maintenance and $5,000 in attorney's fees. Mother, in a cross-appeal, appeals from the denial of her motion to modify child support, the denial of her motion for declaratory judgment as to past due child support and insurance premiums, and from the trial court's failure to grant her interest on the $28,693 in unpaid maintenance owed by Father. After opinion1 the court of appeals transferred the case to this Court. Rule 83.02. The judgment of the trial court is affirmed in part and reversed in part.

Factual and Procedural History

The marriage of Mother and Father was dissolved by a decree of dissolution dated November 19, 1980. Their separation agreement (Agreement) was incorporated into the decree of dissolution. The Agreement included a provision for child support and health insurance for the only child born of the marriage, Kevin, age nine at the time of dissolution, and a provision for maintenance to Mother. When Kevin was thirteen, he was diagnosed with encephalomyeloradiculopathy, a cognitive impairment that left him completely and permanently disabled. Father paid child support for Kevin to Mother until 1992, when Kevin turned 21. Father also paid maintenance to Mother until April of 1998, when he filed a motion to terminate and modify judgment of dissolution as to maintenance. In response, Mother filed a motion to dismiss Father's motion to terminate and modify judgment of dissolution as to maintenance, a motion for contempt, a motion for declaratory judgment as to past due child support, maintenance, health insurance premiums and medical expenses, and a motion to modify child support.

A hearing was held on Mother's motion to dismiss, and the trial court sustained the motion without explanation. A second hearing was held on Mother's remaining motions. At the beginning of the hearing, the trial court granted Mother's motion for sanctions for Father's failure to appear for depositions and ordered that Father could not present evidence on any issue upon which he would have been deposed by Mother. After hearing the evidence, the trial court entered a judgment entry finding that Father had breached the parties' Agreement with respect to payment of maintenance, ordering Father to pay Mother past due maintenance of $28,693, and stating that "[i]n the future, [Father's] maintenance obligation shall be calculated based upon his year end tax filing status and not his bi-monthly withholdings. Further, he shall not consider as a deduction from his 'net income' any voluntary contributions to his 401k retirement plan." The trial court also overruled Mother's motion to modify child support and her motion for past due child support, health insurance premiums and medical expenses, and ordered Father to pay Mother's attorney's fees in the amount of $5,000. Father and Mother both appeal.

I. Maintenance
A. The Maintenance Agreement Is Not Modifiable

Father argues that the trial court erred in granting Mother's motion to dismiss his motion to terminate and modify judgment of dissolution as to maintenance because the maintenance judgment was modifiable. Specifically, Father argues that no express provision in the Agreement limited or precluded the court's power to modify the dissolution decree as to maintenance.

Here, the trial court dismissed Father's motion without comment. If a trial court fails to state a basis for its dismissal, this Court presumes the dismissal was based on the grounds stated in the motion to dismiss. Shaver v. Shaver, 913 S.W.2d 443, 444 (Mo. App. 1996). This Court must affirm the dismissal if it can be sustained on any ground supported by the motion to dismiss. Id. This Court does not review the case on the merits, but rather determines whether Father's pleadings were sufficient to withstand a motion to dismiss. Id.

Father's motion alleged that changed circumstances justified modification or termination of the maintenance obligation. Specifically, Father alleged that the parties' income has changed significantly, that Mother no longer needs his assistance because she obtained a college degree and has a good job, and that their child is grown and no longer in the home. In response to Father's motion, Mother filed a motion to dismiss his motion to terminate or modify maintenance. Mother argued that section 452.325.6, RSMo 1994, 2 permitted the parties to agree that maintenance could not be modified by the court. Mother argued that the parties agreed that the provisions of their Agreement were not modifiable when they included paragraph 12, which states, "A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement." The trial court granted Mother's motion to dismiss.

The maintenance provision at issue is best defined as separation agreement decretal maintenance, or maintenance that is agreed to by the parties and incorporated into the decree. Paynton v. Paynton, 914 S.W.2d 63, 65 (Mo. App. 1996). Section 452.325 allows the trial court to incorporate the separation agreement into the decree, as done in this case, as long as it is not unconscionable. "Maintenance included in a decree by incorporation of the parties' separation agreement . . . may be modified by the court in a proper case . . . unless the parties provide specifically in the separation agreement that modification is precluded or limited." Bryson v. Bryson, 624 S.W.2d 92, 95 (Mo. App. 1981); Sec. 452.325.6 ("[e]xcept for terms concerning the support, custody or visitation of children, the decree may expressly preclude or limit modification of terms set forth in the decree if the separation agreement so provides.") In other words, separation agreement decretal maintenance is modifiable, unless the parties specifically agree to preclude or limit modification. Paynton, 914 S.W.2d at 66.

As stated previously, paragraph 12 reads, "A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement." Prior to 1988, three cases from the southern and eastern districts of the court of appeals held that language identical to that used in paragraph 12 of...

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