Lueckenotte v. Lueckenotte, WD56988

Decision Date27 June 2000
Docket Number57002,and,WD56988
PartiesRichard Otto Lueckenotte, Appellant/Respondent v. Mary Jane Lueckenotte, Respondent/Appellant. WD56988 and WD57002 Missouri Court of Appeals Western District 0
CourtMissouri Court of Appeals

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

Counsel for Appellant: Stephen Cotton Walker
Counsel for Respondent: Edward Christian Clausen

Opinion Summary: Richard O. Lueckenotte appeals from the trial court's dismissal of his motion to terminate and modify judgment of dissolution as to maintenance and attorney's fees. The mother cross-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 unpaid maintenance.

AFFIRMED IN PART; REVERSED IN PART.

Division Four holds:

(1) The parties' maintenance agreement is modifiable. The agreement does not include an express preclusion or limitation on the parties' right to modify the maintenance decree. As such, the judgment dismissing the father's motion to terminate or modify maintenance is reversed, and the cause is remanded for proceedings on the father's motion.

(2) The trial court's judgment as to delinquent maintenance was not against the weight of the evidence but is reversed because the computation of delinquent maintenance may be impacted by the ruling on the father's motion to terminate or modify maintenance.

(3) The trial court's judgment ordering that the father not deduct from his net income any voluntary contributions to his 401k plan in future computations of maintenance is affirmed. The trial court's language served to clarify the meaning of the court's prior order as to maintenance.

(4) The trial court erred in failing to award the mother interest on the maintenance arrearage owed her by the father in that interest was mandatory under section 454.520.2, RSMo 1994. The trial court's judgment denying the mother interest on the unpaid maintenance owed her by the father is reversed, and the cause is remanded to the trial court for a determination of the amount of interest owed on the delinquent maintenance.

(5) The mother has proven that a son is incapacitated under section 452.340.4, RSMo Cum. Supp. 1998, and as such the trial court's judgment denying her motion to modify child support is reversed and the cause is remanded to the trial court for entry of a judgment extending child support based upon physical and mental incapacity and for an adjudication of whether the amount of child support should be modified. On remand, the court should also determine whether the child support orders are retroactive to the date of filing the motion to modify child support.

(6) The trial court did not err in denying the mother reimbursement for health insurance premiums she paid from 1992-1998, because when the son turned 21 in 1992, the father was no longer obligated to provide health insurance. However, on remand the trial court should determine whether the prior order that the father provide health coverage, now extended, should be modified.

(7) The trial court's judgment ordering the father to pay the mother's attorneys fees is affirmed. The mother was both defending and maintaining proceedings pursuant to section 452.340, RSMo Cum. Supp. 1998. The father's conduct during the proceedings caused her to incur additional attorney's fees. The father failed to demonstrate how the trial court abused its discretion in awarding attorney's fees to the mother.

Patricia Breckenridge, Chief Judge

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) $28,693.00 in unpaid maintenance, and $5,000.00 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 $28,693.00 in unpaid maintenance owed by Father. 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 5, 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 parties' 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 which left him completely and permanently disabled. Father paid child support for Kevin to Mother up until 1992, when Kevin turned 21. Father also paid maintenance to Mother up 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 entered a judgment sustaining such 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, inter alia, that Father had breached the parties' Agreement with respect to payment of maintenance, ordered Father to pay Mother past due maintenance of $28,693.00 and stated 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 denied 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 $5,000.00. Father and Mother both appealed, and their appeals were consolidated.

I. Maintenance
A. Maintenance Agreement Is 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. In assessing Father's motion, all facts properly pleaded are assumed true, the averments are given a liberal construction, and the motion is accorded all reasonable inferences fairly deductible from the grounds stated. Id.

Father's motion alleged that changed circumstances justified modification or termination of the parties' Agreement as to maintenance. Specifically, Father alleged that the parties' income has changed significantly, Mother no longer needs his assistance because she obtained a college degree and has a good job, and 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, permitted the parties to agree that maintenance could not be modified by the court. Mother also 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.

Before we can determine if the Agreement as to maintenance is modifiable, we must determine its type. "There are three types of maintenance: (1) decretal maintenance ordered by the court; (2) contractual maintenance, created by the parties, but not incorporated into the decree; and (3) separation agreement decretal maintenance, agreed to by the parties and incorporated into the decree." Paynton v. Paynton, 914 S.W.2d 63, 65 (Mo. App. 1996). "The primary difference between the three is the remedies available for enforcing the judgment." Id.

Here, the maintenance provision was separation agreement decretal maintenance. Section 452.325, RSMo 1994, allows the trial court to incorporate the separation agreement into the decree, as long as it is not unconscionable. The trial court did so in this case. The dissolution decree reads, in pertinent part, "IT IS FURTHER ORDERED that the Separation Agreement is approved, the parties are ordered to perform its terms, said agreement being set out herein as follows: . . ." Section 452.325.6, RSMo 1994, states that "[e]xcept for terms concerning the support, custody or visitation of children, the decree may expressly...

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