Morovitz v. Morovitz

• Decision Date: 26 January 1988
• Docket Number: No. 52170,52170
• Citation: 743 S.W.2d 893
• Parties: Ingrid D. MOROVITZ, Plaintiff-Respondent, v. Ronald L. MOROVITZ, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 893

743 S.W.2d 893

Ingrid D. MOROVITZ, Plaintiff-Respondent, v. Ronald L. MOROVITZ, Defendant-Appellant.

No. 52170.

Missouri Court of Appeals,

Eastern District,

Division Three.

Jan. 26, 1988.

Gale Anne Todd, St. Louis, for defendant-appellant.

Christy Hereford Garesche, Clayton, for plaintiff-respondent.

KAROHL, Presiding Judge.

Ronald Morovitz (husband) appeals from circuit court order denying him relief on his motion to modify dissolution decree which sought termination of child support but sustaining cross motion of former wife, Ingrid Morovitz, to modify dissolution decree by increasing child support. The modification increased Ronald Morovitz's child support obligation from $35 per week to $400 per month for one of two children of the marriage. The court also denied husband's motion for contempt for failure to allow visitation. We affirm in part, reverse and remand in part.

The marriage was dissolved on September 28, 1982. The decree awarded wife custody of the minor daughter, Simone, born November 23, 1969 [age 13], and $35 per week child support. Husband was awarded custody of the minor son, Gregory, born July 21, 1963 [age 19]. Gregory is now 24. Reasonable visitation was agreed to and awarded to each non-custodial parent.

On October 20, 1983 [13 months after the dissolution], husband filed a motion to modify the original decree. Husband requested termination of the $35 per week child support payment for Simone claiming: (1) the cost of supporting Gregory had substantially increased because his son had returned to his father's home, had been placed on academic probation and was no longer qualifying for student loans; and, (2) he, husband, was a second-year law student with the sole responsibility of paying for the support and education of both he and his son.

In 1985, while husband's motion to modify was still pending, wife filed a motion for contempt. ¹ A cross-motion for contempt was filed against wife on behalf of husband alleging in part that wife had willfully deprived husband of his visitation rights with Simone. A hearing was held on September 4, 1985 as to wife's contempt motion only. The trial court found husband in civil contempt for back due support of Simone and ordered him to pay $2030.00 plus court costs or be jailed. Husband paid the amount ordered.

On April 4, 1986 [nearly 4 years after the decree], wife filed a cross-motion to modify the decree of dissolution alleging: (1) husband had obtained his law degree and therefore had an increased ability to pay a greater amount of child support; and, (2) due to Simone's increased age, expenses for private school and pursuit of a competitive swimming career, current support payments were unreasonable. Wife requested an increase in child support from $35 per week to $400 per month, in addition to $200 per month in back due support.

On July 15, 1986, a hearing was held denying husband's motion to modify, denying husband's cross-motion for contempt, and sustaining wife's cross-motion to modify. The order required husband to pay $400 per month child support and $200 per month on an arrearage of $4,830.00. He appeals.

Husband's appeal presents these issues: (1) whether the trial court abused its discretion by increasing child support liability for Simone; (2) whether the court abused its discretion in assessing child support arrearage liability without considering a bankruptcy stipulation entered between the parties; and, (3) whether the trial court abused its discretion in not holding wife in contempt for violating husband's visitation rights.

We now review a court tried case, and must 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Lyles v. Lyles, 710 S.W.2d 440, 442 (Mo.App.1986). The trial court has considerable discretion in awarding child support, Overstreet v. Overstreet, 693 S.W.2d 242, 245 (Mo.App.1985) and we may set aside its decree or judgment only if we firmly believe that it is wrong, Butler v. Butler, 698 S.W.2d 545, 548 (Mo.App.1985), or it has abused its discretion, Overstreet 693 S.W.2d at 245. Wife is entitled to an increase in child support only after proof of substantial change in circumstances and proof that the prior order was unreasonable. This implicates proof of father's ability to pay an increased amount.

I

Husband's first point challenges the trial court's increase of child support liability. He claims as a matter of law and as an abuse of discretion the court unreasonably applied the requirements of Section 452.370 RSMo 1986 and unreasonably considered the needs of the two minor children. We find husband's argument that wife failed to sustain the requisite burden of proof for modification persuasive. Wife failed to present any evidence that husband's earnings had increased. We reverse the increased award of child support.

A decree of dissolution relative to provisions of child support may be modified "only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable." Section 452.370.1 RSMo 1986; Niswonger v. Niswonger, 676 S.W.2d 932, 933 (Mo.App.1984). Changed circumstances sufficient to allow modification must be supported and proven by detailed evidence and must also demonstrate that the prior support order is unreasonable. Magaletta v. Magaletta, 691 S.W.2d 457, 458 (Mo.App.1985) (our emphasis) Movant has the burden of demonstrating substantial change and unreasonableness of the original decree. Lyles, 710 S.W.2d at 442. The target of this issue is the $35 per week child support order for Simone. The dispute is not that this amount is adequate. It obviously is not sufficient to support a teenage daughter. The dispute is about the reciprocal issue of ability to pay and proof of that ability.

In support of wife's cross-motion to modify the child support award she alleged only that her former husband, "[was] an able bodied man who [had] obtained a law decree since the date of [the] decree and by virtue of same, [had] the increased ability to make greater contributions to the support of the [minor daughter Simone]." She did not allege and offered no proof that former husband was a malingerer, see e.g., Klinge v. Klinge, 554 S.W.2d 474, 475-476 (Mo.App.1977); Foster v. Foster, 537 S.W.2d 833, 835 (Mo.App.1976); that by his choice he had no demonstrated earning record, Overstreet, 693 S.W.2d at 245; or, that he was voluntarily earning less than he was capable, see e.g., DeRousse v. Roth, 690 S.W.2d 470, 471 (Mo.App.1985). She did not prove actual earnings sufficient to support an increased award.

Based solely on the fact that husband had a license to practice law the trial court imputed unproven earnings to him and it did so without any evidence by wife that husband had the individual capacity to practice law or had in fact failed to utilize his license. Wife had the burden of proving that husband formerly earned, presently earns, or could presently earn more income than he enjoyed at the time of dissolution, ² Klinge, 554 S.W.2d at 475-476; Calicott v. Calicott, 677 S.W.2d 953, 956 (Mo.App.1984); Barac v. Barac, 684 S.W.2d 869, 870-71 (Mo.App.1984). Wife relied entirely on the fact that her former husband had obtained a law degree and license as the justification for increased support. A law degree is not an automatic guarantee of employment. The dilemma is further compounded when we recognize that there is no evidence as to husband's age, aptitude, performance, personality or any of the other innumerable factors that an employer may assess before considering an applicant for employment. ³ Here pleading and proof of husband's degree and license is not a sufficient evidentiary showing to meet wife's burden of proof to support a finding of a change in ability to pay or to support a finding that the original award is unreasonable on that issue so as to permit an increase in child support from $35 per week to $400 per month. Accordingly, we reverse that part of the order of modification.

The issue of whether or not the evidence required the trial court to find that the decree should be modified to decrease the child support on husband's motion from $35 per week to $0 remains. If the trial court increased the award solely on the basis of proof of husband's law degree and law license, which we find was insufficient, and if that was the basis for denying consideration of husband's motion, it must be reconsidered. We remand to the trial court with directions...