McKinney v. McKinney, 19363

• Decision Date: 02 May 1995
• Docket Number: No. 19363,19363
• Citation: 901 S.W.2d 227
• Parties: Lloyd V. McKINNEY, Petitioner-Appellant, v. Diane McKINNEY, Respondent.
• Court: Missouri Court of Appeals

Page 227

901 S.W.2d 227

Lloyd V. McKINNEY, Petitioner-Appellant, v. Diane McKINNEY, Respondent.

No. 19363.

Missouri Court of Appeals,

Southern District,

Division Two.

May 2, 1995.

Motion for Rehearing or Transfer to

Supreme Court Denied May 24, 1995.

Application to Transfer Denied July 25, 1995.

John S. Pratt, Pratt, Fossard & Rahmeyer, Springfield, for petitioner-appellant.

C. Ronald Baird, Mark J. Millsap, Dorr, Baird and Lightner, P.C., Springfield, for respondent.

CHARLES B. BLACKMAR, Senior Judge.

Lloyd McKinney sought modification of a decree of dissolution so as to eliminate maintenance payments. The trial court denied him relief and he appeals, grieving the refusal to modify and the award of attorneys' fees to his former wife Diane. We affirm the trial court in all respects.

The parties were married on February 5, 1968. Their marriage was dissolved on July 20, 1983. Diane was then 40 years old. She was awarded custody of their two children, aged 12 and 10. The trial court awarded her marital property of a value of $84,500, $400 per month per child for child support, and $1200 per month maintenance. Lloyd's annual income was $95,000. He was awarded marital property of a value of approximately $71,000. His nonmarital stock in his family business corporation then had a value of $200,000. Diane had been a teacher before her first child was born but had stopped working after she became pregnant and cashed out the accumulation in her retirement account. Lloyd's counsel brought out at the dissolution hearing that she had a lifetime teaching certificate. She told the court at that hearing that she did not intend to resume teaching, but rather chose to remain home with her children.

In 1986 the children, with the apparent agreement of all concerned, ceased to live with Diane and moved in with Lloyd and his new wife. Lloyd ceased child support payments at this time, with the assent of Diane. The maintenance payments continue. We agree with the trial court that Lloyd's assumption of all expenses relating to the children is of no significance in ruling the motion to modify. Maintenance is designed to provide for Diane's needs, and the terminated child support payments for the children's. Markowski v. Markowski, 736 S.W.2d 463 (Mo.App.1987).

Diane resumed teaching in 1985 and completed the requirements for her master's degree. She is now a tenured teacher with a salary of approximately $26,000. Her assets have increased from $84,000 at the time of the dissolution to $103,000 net, with a substantial portion of the increase being attributable to her sale of the residence awarded her and purchase of a condominium unit. She has taken steps to repurchase her retirement benefits, and contributes to a supplemental retirement program to make up ground lost during her 15 year absence from the school system. She also has a savings account of approximately $15,000 as a safeguard against emergencies. She owes $10,000 secured by deed of trust on her condominium.

Lloyd has prospered since the dissolution. He is now the majority stockholder in a successful business, and heir apparent to the remaining shares. His salary is $150,000 per year, with substantial fringe benefits. As CEO he is in a position to determine the amount of his salary. His present wife receives a salary of $50,000 from the business. He also receives dividends, under pressure from his CPA. A financial statement placed his net worth at $2,200,000.

Lloyd argues that Diane's employment constitutes a substantial change of circumstances justifying modification of the decree. He asserts that her income is adequate to provide for her needs and that she is using the maintenance payments as a device for accumulating capital. He points to numerous cases holding that the purpose of maintenance is to provide for demonstrated needs and not to permit the recipient to build an estate, adducing Cates v. Cates, 819 S.W.2d 731 (Mo. banc 1991), as the latest word from the Supreme Court on the considerations governing maintenance awards.

Section 452.370.1, RSMo1986, permits modification of maintenance payments "only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable." The cases emphasize this mandate, holding that "[n]ot every change of circumstances will justify modification of a dissolution decree." Mendelsohn v. Mendelsohn, 787 S.W.2d 321, 323 (Mo.App.1990); In re Marriage of Bell, 720 S.W.2d 33, 34 (Mo.App.1986). These cases indicate that further recourse to the courts in the form of motions to modify should be appropriate only in unusual situations. Most of the cases cited in Lloyd's brief involve appeals from dissolution decrees, and are of very limited utility in proceedings such as this one. A motion to modify should not be used as an appeal from the initial decree of dissolution.

Of the cases cited by Lloyd, only in Reeves v. Reeves, 803 S.W.2d 52 (Mo.App.1990), was the trial court reversed for failing to modify a maintenance award. There the husband's gross income had been reduced from $100,000 to $60,000 by reason of his retirement, while the wife's earnings had increased from $6200 to $40,000 and she was steadily employed. The court of appeals held that, by reason of the changed circumstances, the payment of $1000 per month for maintenance was unreasonable, and remanded the case for determination as to whether maintenance should be terminated or reduced. The case differs from this one in that there the husband suffered a substantial reduction in income, whereas Lloyd has prospered.

In Markowski v. Markowski, supra, the trial court eliminated maintenance for a woman on a finding that she had made no substantial effort to secure work. See also Beeler v. Beeler, 820 S.W.2d 657 (Mo.App.1991), in which the court relied on a dramatic increase in the wife's financial resources, and her unwillingness to seek full-time employment. Diane appropriately returned to the work force after her children no longer needed her constant attention.

It is often said that the mere circumstance of the wife's resuming work does not necessarily...