Markowski v. Markowski, WD

• Decision Date: 21 July 1987
• Docket Number: No. WD,WD
• Citation: 736 S.W.2d 463
• Parties: Elizabeth MARKOWSKI (Now Morrow), Appellant, v. Herman F. MARKOWSKI, Respondent. 39064.
• Court: Missouri Court of Appeals

Page 463

736 S.W.2d 463

Elizabeth MARKOWSKI (Now Morrow), Appellant, v. Herman F. MARKOWSKI, Respondent.

No. WD 39064.

Missouri Court of Appeals Western District.

July 21, 1987.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 1, 1987.

Application to Transfer Denied Oct. 13, 1987.

Elizabeth Markowski, pro se.

Barton S. Blond, Kansas City, Mo., for respondent.

Before CLARK, C.J., and NUGENT and LOWENSTEIN, JJ.

CLARK, Chief Judge.

This is an appeal by the wife from an order sustaining the husband's motion to modify a dissolution decree as to maintenance and child support. The primary issue is whether the husband's evidence established a change in circumstances so substantial and continuing as to make the terms of the original decree unreasonable.

The parties were married in 1970 and were divorced by a decree entered December 17, 1979 in a default proceeding instituted by the wife. Custody of two children, aged 10 and 7 as of the date of hearing on the motion, was awarded to the wife. She was also allowed $400.00 per month per child as support and an additional $400.00 per month maintenance. The decree did not value the marital property but it did divide the assets. The decree recited the husband's income to be $41,444.00 a year as of that date.

The husband's motion to modify was heard November 26, 1986. According to his evidence, his employment remained the same as it was when the original decree was entered, except that he had taken an optional assignment to work on a ship at sea from six to eight months a year. Without this extra work, which the husband seeks to discontinue, his gross monthly salary is $3308.00. The bonus pay, including allowances for night duty at sea, amounts to $1400.00 a month. The husband is now remarried and lives in Florida.

There was no claim made by the wife in the motion hearing that her expenses or those of the children had changed since the dissolution decree was entered. She testified that she was living rent-free in a home her parents owned and that they also furnished her an automobile. She did complain that she had always been short of funds since the dissolution and had borrowed money, including loans from her husband, respondent here.

The evidence at the motion hearing focused primarily on the wife's efforts or, more accurately, her failure to make an effort since the divorce to contribute to her own support. Prior to the marriage, the wife had obtained advanced college degrees and had employment as a teacher and as a museum curator. She was not employed outside the home during the marriage. After the divorce, apparently in 1980, the wife commenced a business which engaged in the activity of providing educational displays to shopping malls, schools and public buildings. No financial records for the business except income tax returns were produced or made available, and the tax returns were only for the years 1982, 1983 and 1984. Each return showed a loss for the business. In the most recent year, 1984, the return showed receipts of $57,510.00 and a loss of $12,416.00 after expenses. The wife was unable to account for the expenses with any particularity.

There was no evidence the wife had made any serious or continuing efforts from 1979 to the date of the hearing to obtain any gainful employment. As of the date of the hearing, she testified that she was no longer active in the educational display business and doubted that the business could ever be profitable. She did not indicate that she was considering any other business venture or that she had sought or would seek any employment. There was no evidence or claim suggestive of any physical limitation which impaired the wife's ability to work.

On the principal issue of maintenance, the court found that the wife was able to support herself through appropriate employment and ordered the maintenance terminated. The court also reduced the child support from $400.00 per month per child to $325.00 per month per child. The elimination of maintenance and reduction in child support are treated in the briefs as a common subject as though adjustment of one amount necessarily required adjustment of the other. The record does indicate that the only claim by the husband and the only disputed issue was the obligation by the wife to make some contribution in providing income. Neither party contended that the needs of the wife or the children had changed and no evidence was offered on this subject. As the following discussion will indicate, the subjects of child support and maintenance are not susceptible of a common disposition, but must be considered separately.

As to the elimination of maintenance, the wife contends in three points that the trial court erred because the decision was not supported by competent and substantial evidence. She says there was no proof of changed circumstances in that the husband's ability to pay was at least as good, if not improved, compared to his earnings on the date the decree was entered, and there was no evidence of any decrease in her needs or those of the children. In the absence of proof that circumstances have substantially changed, she argues that there is no basis under the statute for the court to order a modification of the support which the decree ordered.

The wife's argument ignores or discounts the significance of the proof that during the seven years following the divorce, she has developed no source of income to contribute anything toward her own support. Evidence on that subject was virtually uncontested and there was no proof of any mitigating...