Norman v. Norman

Decision Date17 October 1995
Docket NumberNo. 67418,67418
Citation916 S.W.2d 209
PartiesIn re the Marriage of Alma S. NORMAN, Petitioner-Respondent, v. Rodney Van NORMAN, Respondent-Appellant.
CourtMissouri Court of Appeals

Schwartz & Ochs, James C. Ochs, St. Louis, for Appellant.

Peggy Hardge-Harris, St. Louis, for Respondent.

KAROHL, Judge.

Rodney Van Norman appeals from a judgment on his motion to modify the dissolution decree by terminating the provisions for maintenance. The court denied relief at the close of husband's evidence. He argues the trial court erred by finding he failed to prove changed circumstances so substantial and continuing as to make the terms of decreed maintenance unreasonable. We affirm.

Rodney and Alma Norman were divorced on December 22, 1981. Alma was awarded custody of the couple's minor child, Trina, birth date September 2, 1977. The court ordered Rodney to pay maintenance of $65 per week and child support of $30 per week. At the time Rodney earned $30,000 annually. In 1990, Alma surrendered Trina to the custody of the State of Missouri. As a result, Rodney's child support increased from $130 to $484 per month.

Rodney filed a motion to modify. His earnings have increased to $71,000 per year. His new wife earns a base pay of $23,000 per year. Their household earnings total $94,000. They reside in DeSoto, Texas. They have no children. His assets include $50,000 in pension and profit sharing plans, 1986 Volvo, on which Rodney has no indebtedness, 1989 Mercedes, 1990 Honda, and securities valued at less than $1,200. In summary, ability to pay is not an issue.

Alma had custody of Trina for nine years after the dissolution. She cared for the child and worked part-time. In October, 1991, she began working for Bi-State. She is now employed full-time. She earns $300 per week. She pays weekly child support of $20. Her assets consist of a 1987 Celebrity automobile and $20 in her checking account.

Rodney asked the trial court to terminate or reduce maintenance. The trial court found his evidence did not prove the threshold of a sufficient change in circumstances. It found Alma's income is minimal and his maintenance payments impose no financial hardship. Therefore, the trial court granted Alma's motion for a ruling at the close of Rodney's evidence.

STANDARD OF REVIEW

In Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) the court found:

Judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it; unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is "against the weight of the evidence" with caution and with a firm belief that the decree or judgment is wrong.

"On appeal, the trial court's judgement is presumed valid and the burden is on appellant to demonstrate incorrectness of the judgment." Zimmer v. Zimmer, 862 S.W.2d 355, 364 (Mo.App.S.D.1993) quoting Delaney

v. Gibson, 639 S.W.2d 601, 604 (Mo. banc 1982); Austin v. Trotters Corp., 815 S.W.2d 951, 957 (Mo.App.1991).

DISCUSSION

Modification of maintenance is authorized by § 452.370(1) RSMo 1994 which reads in pertinent part:

[T]he provisions of any decree respecting maintenance or support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable. In a proceeding for modification of any ... maintenance award, the court in determining whether or not a substantial change in circumstances has occurred, shall consider all financial resources of both parties, including the extent to which the reasonable expenses of either party are, or should be, shared by a spouse or other person with whom he or she cohabits, and the earning capacity of a party who is not employed.

First, Rodney argues Alma has a duty to seek employment and conceded Alma has done so. She is employed full-time. Second, he argues maintenance should not provide Alma with an opportunity to accumulate wealth. But, he concedes she is not. Nevertheless, he relies on Jung v. Jung, 886 S.W.2d 737, 740 (Mo.App.E.D.1994), to support his motion to reduce or terminate maintenance. Jung was an action for dissolution in which the court looked at § 452.335 RSMo 1988. We review § 452.370, not § 452.335. Jung is not controlling.

Rodney also argues Habig v. Gohagan, 890 S.W.2d 732, 737 (Mo.App.E.D.1995), supports his claim the trial court should have considered her need and his ability to pay. He contends the court erred as follows: by calculating Alma's monthly income at a mere $300.00 per month, rather than $1,200; and by calculating the increase in his income at 300%, rather than the correct figure of 230%.

The record on this argument is:

THE COURT: Indeed, the evidence that I have received negates a change in circumstances for altering maintenance by virtue of the fact the wife's income has apparently increased by some $300.00 a month, from zero to what she's presently earning. The moving party's income has substantially increased multiple times that amount, probably some three times that amount, close to four, two and a half times that amount, some $40,000 a year which would be 300--I don't have my calculator.

MR. OCHS: It's almost double, Judge, a little over double, but again--

THE COURT: He's doubled his income, but if I did it on the basis of number of dollars, his change in income has substantially out-stripped the change of income of the wife.

* * * * * *

MR. OCHS: She makes $15,000 a year, judge. That's not minimal. That's whatever, $300 a week is almost $7 and a half an hour.

THE COURT: The statute requires the provisions of the decree representing maintenance or support may be modified only upon showing of change of circumstances so substantial and continuing as to make the term unreasonable. I don't think you've got that burden--you've met that burden. I'm going to deny the motion. (Our emphasis).

Alma's income, Rodney's income and his ability to pay are not in dispute. She has increased her income from zero at the time of the...

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3 cases
  • Treadway v. State
    • United States
    • Missouri Supreme Court
    • April 13, 1999
  • Crawford v. Crawford, WD
    • United States
    • Missouri Court of Appeals
    • March 9, 1999
    ...trial court's judgment is presumed valid and the burden is on the appellant to demonstrate the judgment was incorrect. Norman v. Norman, 916 S.W.2d 209, 210 (Mo.App.1995). The following findings were made on Leon's counter-motion to terminate 4. At the time of the dissolution, Respondent wa......
  • Eaton v. Bell
    • United States
    • Missouri Court of Appeals
    • January 27, 2004
    ...her needs, a change in circumstances has not occurred. Draper v. Draper, 982 S.W.2d 289, 292 (Mo.App. W.D.1998); Norman v. Norman, 916 S.W.2d 209, 212 (Mo.App. E.D.1995). Ms. Bell was not employed during the marriage. After the parties separated, she worked as a waitress at a Cracker Barrel......

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