McDonald v. McDonald, 20603
| Decision Date | 22 April 1997 |
| Docket Number | No. 20603,20603 |
| Citation | 946 S.W.2d 743 |
| Parties | Shirley R. McDONALD, Petitioner-Appellant, v. Steven Forsee McDONALD, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
John R. Lewis, Lewis & Moon, L.L.P., Springfield, for petitioner-appellant.
J. Kaye Irwin, Kelley, Dorshorst & Irwin, L.L.C., Springfield, for respondent-respondent.
Shirley R. McDonald (Wife) challenges the trial court's judgment modifying an earlier dissolution decree by terminating a maintenance award in her favor. We affirm.
In 1988, Wife filed suit to dissolve her marriage to Steven Forsee McDonald (Husband). On August 9, 1988, the trial court signed a document entitled "Docket Entry," which was a printed form on which alternative findings could be selected by checking a box in the margin. In the "Docket Entry," the trial court noted Wife's appearance in person with her attorney, as well as Husband's waiver of appearance. It made all of the necessary jurisdictional findings; ordered the marriage dissolved; awarded custody of minor children to Wife with reasonable visitation to Husband; ordered Husband to pay child support; found that a Separation Agreement and addendum were fair, reasonable and not unconscionable; approved the Separation Agreement and addendum; ordered that they be incorporated into and made a part of the decree; and ordered Husband to pay Wife maintenance of $500 per month beginning on that date.
On the same day, the trial court also signed a formal "Decree of Dissolution of Marriage." 1 In the formal decree, the trial court acknowledged that there was marital and non-marital property "which is set out in and should be divided according to the property settlement agreement filed herein," and that the parties had marital debts "which are listed in the property settlement agreement." Its judgment read, in part, "that the property and debts shall be divided according to the property settlement agreement filed herein; and that [Husband] shall pay maintenance to [Wife] in the amount of $500.00 per month."
The property settlement filed with the trial court was dated February 20, 1987, and was signed in Virginia where the parties were then apparently living. It contained the following provisions:
....
WHEREAS, desirous of entering into this Agreement for the purpose of fixing their respective personal property rights and agreeing on terms for spousal support....
....
6. Husband shall pay to Wife spousal support in the amount of $500.00/month. The amount of spousal support shall increase at the time child support decreases due to the emancipation of at least one of the children. The amount of such increased spousal support shall be the greater of $671 or the amount of the mortgage payment on Wife's residence in Ozark, Missouri (currently $671 but subject to interest rate adjustments). Should Husband's salary increase in real terms in the future, then during the term of his responsibility for support the amount of such support shall increase proportionately. Total support payments of $1,500 shall equate to a salary of $40,000.00 of Husband. Earnings of Husband in excess of $40,000.00 therefore shall entitle Wife and the children to a proportionate increase in support. Reductions in earnings of Husband however shall not result in any reduction in support payments below the initial amounts as set forth hereinabove. Husband shall provide Wife with documentation (tax returns, etc.) annually of his earnings upon Wife's request.
....
18. It is agreed between the parties hereto that in the divorce proceeding, this Agreement shall be filed with the pleadings, and the Court requested to enter a decree approving and confirming the same. This Agreement is not subject to merger nor termination by such decree, but shall in all respects survive the same and shall be binding and conclusive on the parties for all time.
....
On November 16, 1994, Husband filed a motion to modify the decree in which he sought to terminate the maintenance award. In Wife's answer, she referred to the property settlement and requested that its terms and conditions be specifically enforced in any modification ordered by the court. She also filed a counter-motion to modify in which she alleged that the property settlement provided that Husband was to increase his maintenance payments as his salary increased, but he had failed to do so. She prayed that the court "acknowledge the Property Settlement Agreement," and order Husband to pay maintenance in accordance with its terms.
The trial court terminated maintenance, finding that its original award of maintenance, which made no reference to whether or not it was modifiable, was subject to modification. It also found the following:
Further, said Judgment and Decree of Dissolution did not incorporate the Property Settlement Agreement dated February 20, 1987, nor the Addendum to Property Settlement Agreement dated July 15, 1988, or made [sic] said Agreements a part of such Judgment and Decree dated August 9, 1988, or incorporate the same by reference.
Further, the Court is without Jurisdiction in this action to specifically enforce the terms of said Property Settlement Agreement or the Addendum to Property Settlement Agreement, as prayed by [Wife].
Review of the trial court's order is governed by Rule 73.01 2 as interpreted in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Accordingly, we are to affirm the judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Id.; Morrison v. Meadors, 892 S.W.2d 786, 788 (Mo.App. S.D.1995).
Wife's first point relied on is:
The trial court committed error in that it improperly declared or applied the law and the trial court's judgment is not supported by substantial evidence or is against the weight of the evidence.
Rule 84.04(d) requires that a point "shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous...." That Rule also provides that "[s]etting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this Rule."
"The three components of a point relied on are: a concise statement of the challenged ruling of the trial court; the rule of law the trial court should have applied; and the evidentiary basis upon which the asserted rule is applicable." Jones v. Wolff, 887 S.W.2d 806, 808 (Mo.App. E.D.1994). "Points which do not state what ruling of the trial court is challenged nor provide a proper evidentiary basis, but instead set out abstract statements of law, preserve nothing for appeal." Id. In the instant case, the point is a mere abstraction and does not comply with the mandatory requirements of Rule 84.04(d). The argument section of the brief under this point consists of only two paragraphs and relates only to the applicable standard of review. The point preserves nothing for review and is, therefore, denied.
In Wife's second point, she contends that the trial court erred, in entering the dissolution decree in 1988, by failing to include a finding that the property settlement was not unconscionable and either include its terms in the decree and order the parties to perform them pursuant to § 452.325.4(1), RSMo 1986, or exclude the terms relating to maintenance from the decree and allow the parties to enforce the agreement pursuant to § 452.325.4(2), RSMo 1986. Wife then asserts, in her point, that the court's modification judgment was rendered erroneously because it was not supported by substantial evidence and misapplied the law.
The argument section of Wife's brief under this point refers only to the trial court's alleged error in entering the original dissolution decree. In support, she cites §...
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