Neustadter v. Neustadter, WD72040

CourtCourt of Appeal of Missouri (US)
Writing for the CourtGary D. Witt.
Docket NumberWD72040
Decision Date03 May 2011



Missouri Court of Appeals Western District

OPINION FILED: May 3, 2011

Appeal from the Circuit Court of Nodaway County, Missouri
The Honorable Roger M. Prokes, Judge

Before Division One: Gary D. Witt, Presiding Judge, James E. Welsh, Judge and Alok Ahuja, Judge

Appellant, Roger Marc Neustadter, appeals the circuit court's judgment reducing but not terminating his maintenance payments to the Respondent, Sharon Mary Conrad-Neustadter. We affirm.

Factual Background

The marriage of Appellant, Roger Marc Neustadter ("Roger"), and Respondent, Sharon Mary Conrad-Neustadter ("Sharon") was dissolved on June 5, 2006. Pursuant to a Separation and Property Settlement Agreement incorporated into the trial court's

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judgment, Roger was to provide modifiable maintenance for Sharon until the death of either party, remarriage by Sharon, or Sharon's cohabitation with another man. The maintenance obligation is set forth as follows:

First, Roger was to provide a lump sum payment of $4,000 on July 1, 2006; Second, Roger was to pay Sharon $1,600 per month, beginning August 1, 2006 and continuing through July of 2010;
Third, beginning August 1, 2010, Roger was to pay Sharon $1,000 per month until further order of the Court.

Roger also agreed to maintain health insurance through his employer for Sharon for the three years following the dissolution of marriage.

On July 27, 2009, Sharon filed a Motion for Contempt in which she claimed Roger had failed to comply with the judgment by refusing to make certain maintenance payments. Sharon also alleged Roger failed to maintain medical insurance as required. Sharon claimed damages of $5,923.84 for unpaid maintenance and $9,994.72 for insurance costs. She also requested attorney's fees. Roger filed an Answer and Counter-Motion to Modify Judgment Entry for Dissolution of Marriage as to Maintenance, requesting the court terminate or decrease the maintenance award.

Following a hearing on November 19, 2009, the court entered a Judgment Entry Modifying Judgment Entry for Dissolution of Marriage Concerning Maintenance and Entering Judgment for Contempt. The court found that Roger had failed to pay Sharon's health insurance premiums for the three years following the original judgment and found that he owed Sharon $15,494.92. The Court also found that there had been a substantial and continuing change in circumstances which made the then current maintenance schedule unreasonable. The specific basis of changed circumstances was that Sharon

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began receiving Social Security payments each month at the age of sixty-five, when the agreement between the parties presumed that Sharon would not begin receiving social security benefits until age sixty-six. The Court determined that a reasonable maintenance payment was $1,000.00 per month beginning on September 1, 2009 (the reduction occurring eleven months earlier than anticipated in the original judgment of dissolution, but coinciding with Sharon's receipt of social security benefits). Based on this retroactive amendment to the maintenance obligation, the court found that Roger had overpaid maintenance by the sum of $5,500. After offsetting this overpayment by the amount owed for the health insurance obligation, the court found Roger owed Sharon a net amount of $9,994.72.

Roger now appeals. Further factual details will be provided in the analysis section below as required.

Standard of Review

"The trial court's modification of a maintenance award must be affirmed unless there is no substantial evidence to support it; it is against the weight of the evidence; or it erroneously declares or applies the law." Brooks v. Brooks, 957 S.W.2d 783, 786 (Mo. App. W.D. 1997) (citing Lamont v. Lamont, 922 S.W.2d 81, 83 (Mo. App. W.D. 1996); Theilen v. Theilen, 911 S.W.2d 317, 318 (Mo. App. W.D. 1995)).

The trial court has broad discretion in awarding maintenance, and its decision will not be overturned absent an abuse of discretion. To determine whether the trial court abused its discretion, this court reviews the evidence in a light favorable to the decree, disregarding any evidence to the contrary and deferring to the trial court's judgment even if the evidence could support a different conclusion.

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Hammer v. Hammer, 139 S.W.3d 239, 240 (Mo. App. W.D. 2004) (internal citations omitted) (citing Stangeland v. Stangeland, 33 S.W.3d 696, 700 (Mo. App. W.D. 2000)).


In Point One, Roger argues the trial court erred in failing to terminate the award of maintenance because the court's judgment is not supported by substantial evidence and is against the weight of the evidence in that the court failed to consider Sharon's significant income-producing property and improperly found that Sharon was incapable of supporting herself through appropriate employment.

Section 452.3701 governs Roger's motion to modify the court's prior award of maintenance. That section provides "the provisions of any judgment respecting maintenance or 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. "[T]he court, in determining whether or not a substantial change in circumstances has occurred, shall consider all financial resources of both parties...." Id. Here, the trial court determined that the social security benefits Sharon now receives constitutes a substantial and continuing change in circumstances, which justified a modification of maintenance. This finding is not disputed.

To be entitled to maintenance, the trial court must first determine that the spouse seeking maintenance

(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and

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(2) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

Section 452.335.1. Next, "[i]n determining the amount to award for maintenance in a modification proceeding under § 452.370, the trial court may, but is not required to, consider the factors found in § 452.335, just as if the trial court was determining an original maintenance award."2 Brooks, 957 S.W.2d at 786 (citing Smith v. Smith, 632 S.W.2d 91 (Mo. App. E.D. 1982)).

First, Roger argues the trial court erred in finding that Sharon could not provide for herself through appropriate employment. Although this fact was not explicitly set forth in the judgment, we will assume the trial court found such as it is necessary in order for Sharon to be entitled to maintenance per section 452.335.1. Sharon testified at trial that she stopped working in 1998 or 1999 because she was unable to do so physically due to a degenerative disk disease. She testified that she did not seek further employment because she could not physically work and "wanted to have the quality of life that [she] hadn't had for a long time." She testified that she must be extremely careful with what

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she does in order to prevent back pain. Although she can do basic household chores, she is very careful and limited in what physical activities she can perform. Sharon is sixty-six years old.

Roger argues that Sharon "provided no credible testimony that she could not work, only that she chose not to" suggesting that it was her burden on his motion to modify, to again prove she was entitled to maintenance. The statute governing the modification of a maintenance award is silent as to what exactly the burden of proof is upon the person seeking modification of the maintenance award after there has been a sufficient showing of a substantial and continuing change of circumstances to support a modification. See section 452.370. However, that same statute also governs when a child support order may be modified and provides explicitly that after a showing of a substantial and continuing change in circumstances to warrant modification, "the child support shall be determined in conformity with criteria set forth in section 452.340 and applicable supreme court rules." Section 452.370.2. There is no such specificity in the statute in regard to a modification of the appropriate amount of maintenance. This court has followed the principle that a re-determination of the appropriate amount of maintenance by the trial court pursuant to a motion to modify may include the factors set out when the original determination of maintenance was decided, but such is not required. Smith v. Smith, 632 S.W.2d 91 (Mo. App. E.D. 1982). Accordingly, the trial court has more unfettered discretion as to a determination of maintenance upon a motion to modify than in the initial maintenance determination. The burden of proof first falls upon the movant seeking...

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