Martino v. Martino

• Decision Date: 17 October 2000
• Citation: 33 S.W.3d 582
• Parties: (Mo.App. E.D. 2000) Michael Martino, Respondent, v. Ena Martino, Appellant. ED76935
• Court: Missouri Court of Appeals

33 S.W.3d 582 (Mo.App. E.D. 2000)

Michael Martino, Respondent, v. Ena Martino, Appellant.

ED76935

Missouri Court of Appeals Eastern District

10/17/2000

Appeal From: Circuit Court of St. Louis County, Hon. Michael D. Burton

Counsel for Appellant: Danna McKitrick, David R. Bohm, Jill J. Laux and Todd L. Beekley

Counsel for Respondent: Sanford J. Boxerman

Opinion Summary: Michael Martino moved to reduce his maintenance obligation to his former wife Ena Martino. The trial court granted Michael's motion, finding that Social Security Disability Income and financial assistance from Ena's family constituted changes in circumstance so substantial and continuing that the terms of the original decree were unreasonable. The trial court also considered the extra expense created by the addition of newborn twins to Michael's family and the possibility that Ena could draw additional income from government assistance. Ena now appeals.

Division Two holds: The trial court erred in finding changed circumstances so substantial and continuing as to make the terms of the original decree unreasonable because: (1) it considered the burden Michael's new family placed upon his finances when Michael did not allege an inability to pay and (2) it considered government assistance that would likely be available as a relevant factor in determining if Ena's circumstances improved to the point that she no longer needed $750.00 in monthly maintenance from Michael.

James R. Dowd, Judge

Ena Martino appeals from a judgment reducing her ex-husband's maintenance obligation from $750 a month to $274 a month.

Michael and Ena Martino married in 1984. Their marriage lasted five years and they lived together as husband and wife for eighteen months. In 1986, Ena became pregnant, but the pregnancy was ectopic. As a result, she lost the baby and suffered an emergency hysterectomy. This of course caused Ena to become sterile. Shortly thereafter Ena was diagnosed with severe depression. She currently carries a diagnosis of schizoid-affective disorder. The evidence was undisputed that she was at the time of trial, and remains to this day, totally disabled and unable to work.

Shortly after Ena's troubled pregnancy the couple divorced. In 1989, the original dissolution decree was entered. In that decree, the trial court found that Ena's mental condition prevented her from working, that she possessed no income of her own and that Michael had the ability to provide for his own needs while still contributing to Ena's support. The trial court ordered Michael to pay $750 a month in "modifiable continuing maintenance."

After the divorce, Michael experienced both personal and financial success. Michael remarried in 1991. His new wife gave birth to twins in 1997, and his earnings increased steadily after the divorce. At the time of dissolution Michael earned approximately $60,000 a year, five years later Michael's income ranged from $89,000 to $112,000 a year. Michael's new spouse also draws a salary.

Ena is unable to work, and lives with her aunt in Miami. Shortly after the divorce, Ena began receiving Social Security Disability Income from the government in the amount of $476 a month. Ena also receives significant financial support from her family. Despite this assistance, some of Ena's medical bills remain unpaid.

Michael filed a motion to reduce his maintenance obligation on August 18, 1998. Michael did not argue inability to meet his obligation. Rather, he argued that Ena's new found income from Social Security as well as gifts from her family substantially changed her circumstances rendering the terms of the original decree unreasonable.

The trial court sustained Michael's motion and reduced his monthly obligation from $750 to $274. The court found that substantial and continuing changes rendered the original decree unreasonable. The court reasoned that Ena now receives $476 a month in Social Security benefits that she did not receive at the time of dissolution, and that Ena now received significant financial support from her family that she did not receive at the time of the dissolution decree. In finding "changed circumstances" the court noted that Ena "had available to her resources in addition to those she is now receiving" because she "would in all likelihood be entitled to food stamps and subsidized housing." The court also took into account Michael's new marriage and the recent birth of twins to that marriage; however, Michael does not argue that his new financial responsibilities render him unable to meet the burden of the original maintenance decree.

Ena appeals the trial court's finding of substantial change of circumstance. She alleges that the trial court erred when it found her receipt of Social Security Disability payments, and her receipt of aid from her family, to be substantial and continuing changes rendering the terms of the original decree unreasonable. Ena alleges further that the court erred by improperly considering the possibility that she could qualify for food stamps or subsidized housing and by improperly considering the extra burden Michael's newborns now present to his finances.

Maintenance decrees may be modified only "upon a showing of changed circumstances so substantial and continuing as to make the terms [of the original decree] unreasonable." Section 452.370(1) RSMo (1994). A trial court's judgment upon these matters will be sustained "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

In Missouri, the general rule is that a change in circumstances rises to the requisite statutory level when it renders the obligor...