McBride v. McBride, No. SD 29014.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtDon E. Burrell
Citation288 S.W.3d 748
PartiesIn the Marriage of: Cynthia Lea McBRIDE, n/k/a Cynthia Lea Geisinger, Petitioner-Respondent, v. David Paul McBRIDE, Respondent-Appellant.
Decision Date21 April 2009
Docket NumberNo. SD 29014.
288 S.W.3d 748
In the Marriage of: Cynthia Lea McBRIDE, n/k/a Cynthia Lea Geisinger, Petitioner-Respondent,
v.
David Paul McBRIDE, Respondent-Appellant.
No. SD 29014.
Missouri Court of Appeals, Southern District, Division Two.
April 21, 2009.

Joleene V. Wood, Osceola, MO, for Appellant.

Stephen W. Angle, Clinton, MO, for Respondent.

DON E. BURRELL, Presiding Judge.


David McBride ("Husband") appeals the circuit court's judgment dismissing with

288 S.W.3d 749

prejudice his motion to terminate or, in the alternative, modify maintenance. Because the original dissolution judgment provided that its maintenance award was non-modifiable, the trial court lacked authority to modify or terminate it, and we affirm the dismissal.

I. Facts and Procedural Background

Husband and Cynthia McBride ("Wife") divorced in 1998. Their dissolution judgment incorporated a Marital Settlement and Separation Agreement ("the settlement agreement") entered into by Husband and Wife pursuant to section 452.325.1.1 Under that agreement, Husband agreed to pay Wife $300 maintenance with "[s]aid maintenance [] to terminate upon the remarriage of [Wife]."2 The settlement agreement also provided that:

The terms of this Agreement shall not be subject to modification or change, regardless of the relative circumstances of the parties, except as specifically set forth in the Agreement. It is understood that this provision is not applicable to the terms of the Agreement deal [sic] with child custody, visitation and support.

Approximately two weeks after Husband and Wife signed the settlement agreement, Wife appeared in court and obtained the dissolution "Judg[]ment Entry" ("judgment" or "decree") at issue. Husband was not present. The court found that the parties' settlement agreement was not unconscionable and incorporated it into its judgment. The judgment's maintenance provision read as follows:

That the parties agree that $300.00 maintenance is to be paid by [Husband] for the support of [Wife]. Said maintenance is to terminate upon the remarriage of [Wife], but shall otherwise be non-modifiable. RTH

(emphasis added). The italicized language "but shall otherwise be non-modifiable" was handwritten into the typed judgment and was immediately followed by the judge's initials. With a specific exception for those provisions relating to child custody or support, the judgment stated that its provisions were non-modifiable. Husband did not appeal the dissolution judgment.

Over eight years later, Husband filed the instant motion to terminate or, in the alternative, modify maintenance. In his motion, Husband alleged the court had

288 S.W.3d 750

erred by entering a judgment that made its maintenance award non-modifiable and that the circumstances of the parties had changed to the extent that the maintenance award was no longer reasonable. The motion did not allege that Wife had remarried—the only grounds set forth in the settlement agreement that would support a termination of maintenance. In response to Husband's motion, Wife filed a motion to dismiss and, in the alternative, for judgment on the pleadings, contending Husband's motion failed to state a claim upon which relief could be granted because the dissolution judgment was non-modifiable. The trial court overruled both parties' motions and set the matter for trial.

Prior to the start of the trial, Wife told the court that it was her position that her previously denied motion to dismiss should have been granted under the Supreme Court's decision in Richardson v. Richardson, 218 S.W.3d 426 (Mo. banc 2007). The court took the matter under advisement and evidence was received on Husband's motion to terminate or modify maintenance. At the conclusion of the trial, the court took the case under advisement. Several days later, the court entered its judgment dismissing with prejudice Husband's alternative motion to terminate or modify maintenance. Husband now appeals that judgment of dismissal.

II. Standard of Review3

This case comes to us with a somewhat unusual procedural history. When Wife filed her motion to dismiss Husband's motion to terminate or modify maintenance, the trial court entered a "judgment" denying it. After conducting a trial on Husband's motion to terminate or modify maintenance, the trial court then entered its "Judgment on Motion to Modify" which concluded as follows:

The Court Orders:

The court finds issues for the Petitioner, [Wife], and against the Respondent, [Husband]. The Court enters judgment for [Wife] and the matter is dismissed with prejudice against [Husband].

Because of the ultimate relief awarded, we interpret the judgment to be a judgment dismissing with prejudice Husband's motion to terminate or modify maintenance for failure to state a claim for which relief might be granted. However, because the trial court both took evidence and also seemed to rule as a matter of law based on the face of its previous dissolution judgment, we have reviewed the case using the appropriate standard of review for both a motion to dismiss and for a court-tried case. Under either standard, the outcome is the same.

A. As a Motion to Dismiss

"Where a trial court fails to state a basis for its dismissal, we presume the dismissal is based on the grounds stated in the motion to dismiss." Shaver v. Shaver, 913 S.W.2d 443, 444 (Mo.App. E.D.1996). We will affirm the dismissal if it can be

288 S.W.3d 751

granted on any grounds supported by the motion to dismiss. Id. Here, while the trial court did not state its grounds for the dismissal, the only ground provided in the motion to dismiss was for failure to state a claim upon which relief could be granted. For that reason, we assume the trial court...

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1 practice notes
  • Jennings v. Bd. of Curators of Mo. State Univ., No. SD 31900.
    • United States
    • Court of Appeal of Missouri (US)
    • September 18, 2012
    ...The appeals court will affirm the dismissal if it can be granted on any grounds supported by the motion to dismiss. McBride v. McBride, 288 S.W.3d 748, 750–51 (Mo.App. S.D.2009). A motion to dismiss for failure to state a cause of action is solely a test of the [386 S.W.3d 801]adequacy of t......
1 cases
  • Jennings v. Bd. of Curators of Mo. State Univ., No. SD 31900.
    • United States
    • Court of Appeal of Missouri (US)
    • September 18, 2012
    ...The appeals court will affirm the dismissal if it can be granted on any grounds supported by the motion to dismiss. McBride v. McBride, 288 S.W.3d 748, 750–51 (Mo.App. S.D.2009). A motion to dismiss for failure to state a cause of action is solely a test of the [386 S.W.3d 801]adequacy of t......

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