Niswonger v. Niswonger, 48044
| Decision Date | 11 September 1984 |
| Docket Number | No. 48044,48044 |
| Citation | 676 S.W.2d 932 |
| Parties | Chyriel Aurlie NISWONGER (now Chyriel Aurlie Pulley), Plaintiff-Respondent, v. Noah Franklin NISWONGER, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Max W. Custer, Jr., St. Louis, for defendant-appellant.
Rebecca McDowell Cook, Cape Girardeau, for plaintiff-respondent.
Appellant-husband appeals an October 1983 order modifying and increasing a child support award originally ordered in an April 1977 dissolution decree.Husband contends that wife's evidence failed to prove a change in circumstances and the unreasonableness of the former decree.We agree.
The original decree was entered in April 1977.The present legal file reflects only the wife's income and expense and property statements filed prior to that decree.The decree granted to wife the custody of three boys who were four, six and ten years of age.Husband was ordered to pay to the wife $133 per month child support for each of the three children.
In April 1982 husband filed a motion to modify requesting custody of the oldest boy.By an amended motion to modify he asked for custody of all three boys.Wife filed an answer requesting a limitation on husband's temporary custody and visitation and an increase in child support because expenses for the three children had "sky-rocketed since the entry of the decree in April 1977."
Both husband and wife have remarried.At the time of the modification hearing husband lived in St. Louis and wife lived in Memphis, Tennessee.At that time the sixteen-year old boy was living with husband and the ten and twelve-year old boys were living with wife.
The court modified the decree and transferred legal custody of the sixteen-year old to husband leaving the younger boys with wife.The court awarded wife the sum of $250 per month child support for each of the younger boys.The husband has appealed the modification of child support.
A decree of dissolution relative to child support provisions may be modified "only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable."§ 452.370RSMoSupp.1983;Donnelly v. Donnelly, 648 S.W.2d 898, 899-900(Mo.App.1983);Titze v. Cunningham, 661 S.W.2d 623, 624(Mo.App.1983).Cross-movant wife had the burden of showing a change in circumstances so substantial as to make the terms of the original decree unreasonable.In re Marriage of Cook, 636 S.W.2d 419, 421(Mo.App.1982).
Under the standard of Murphy v. Carron, 536 S.W.2d 30, 32(Mo. banc 1976)an appellate court can reverse a trial court order if it is against the weight of the evidence, there is no evidence to support it or it erroneously declares or applies the law.Considering that standard and the law set forth in Cook and Donnelly we reverse.We find no financial records indicating the income and expenses of either husband or wife.Nor are there any expense statements for the children in evidence.When the motion and cross-motion to modify were heard wife anticipated retaining custody of all three boys.In response to a direct examination question, "Why would you need an increase in child support at this time?"she responded:
Doctor bills, dentist bills, living expenses have all increased in the past seven years, and so that the kids can, can live better than what they have been living as far as having little extras, having necessities, having the things that they, they need.
This answer was the only evidence presented to the trial court to support the request for increased child support.However some further facts are arguably pertinent.The two boys remaining with wife were six years older than at the time of the decree.The increase in the cost of living between 1977 and 1983 cannot be debated.Under the terms of the modification husband shall deliver and reclaim the son residing with him to the home of wife and the wife shall...
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