Pierce v. Pierce

• Citation: 215 S.W.3d 263
• Decision Date: 16 February 2007
• Docket Number: No. 27585.,27585.
• Parties: Kim A. PIERCE, Appellant, v. James G. PIERCE, Respondent.
• Court: Court of Appeal of Missouri (US)

215 S.W.3d 263

Kim A. PIERCE, Appellant, v. James G. PIERCE, Respondent.

No. 27585.

Missouri Court of Appeals, Southern District, Division One.

February 16, 2007.

Verna L. Haun, Douglas, Haun & Heidemann, P.C., Bolivar, for appellant.

Richard D. Winders, Kirksey Law Firm, L.L.C., Bolivar, for respondent.

DANIEL E. SCOTT, Judge.

The marriage of Kim ("Wife") and James ("Husband") Pierce was dissolved in 1998.¹ Husband was ordered to pay Wife $500 per month modifiable maintenance, plus $1,192 per month child support for the couple's two children, which was later reduced to $976 for the remaining unemancipated child, Andrew.

After Husband was medically forced to retire, he moved to modify his maintenance and child support obligations in 2005. The court granted his motion, terminated Wife's maintenance, and modified both parties' child support obligations.² Wife's appeal includes eleven claims of error. We reverse and remand with directions as to Point VII. Otherwise, we affirm.

We review maintenance and child support modification decisions under the same standard, affirming the trial court unless its judgment is unsupported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Schleisman v. Schleisman, 989 S.W.2d 664, 667 (Mo.App.1999); Gerecke v. Gerecke, 954 S.W.2d 665, 667 (Mo.App.1997). We review the record and reasonable inferences in favor of the order, disregard contrary inferences, and defer to the trial court even if the evidence could support a different conclusion. Gerecke, 954 S.W.2d at 667. Neither Husband nor Wife requested written findings of fact or conclusions of law, thus all fact issues are deemed found in accordance with the judgment. Haynes v. Almuttar, 25 S.W.3d 667, 671 (Mo.App.2000); Rule 73.01(c).³

Maintenance

Wife's first seven points challenge the court's termination of maintenance. A 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. RSMo. § 452.370.1. While it was Husband's burden to prove changed circumstances, "we presume that the trial court's judgment is valid and the appellant has the burden of demonstrating that the judgment is incorrect." Lee v. Gornbein, 124 S.W.3d 52, 56 (Mo.App.2004).

Point I claims Husband "did not demonstrate that he was unable to find a suitable job after retiring and his testimony evinced a clear lack of diligence to secure new employment." Husband, then 51, had to quit his job as a U.S. Treasury Special Agent at the end of 2004 because he no longer met the physical qualifications. His pre-retirement 2004 income was almost $110,000. At time of trial he was a self-employed rancher earning no income from that endeavor. He drew $5,413 monthly from his Treasury retirement and $31 monthly interest income.

Wife contends Husband's retirement was not substantial evidence of a change in conditions, citing Leslie v. Leslie, 827 S.W.2d 180 (Mo. banc 1992); Hughes v. Hughes, 761 S.W.2d 274 (Mo.App.1988); and Katz v. Katz, 759 S.W.2d 857 (Mo.App. 1988). Leslie and Hughes, involving voluntary retirements, held a voluntary loss of employment does not support modification. Leslie, 827 S.W.2d at 183; Hughes, 761 S.W.2d at 277. Husband's retirement was anything but voluntary. Due to a prior surgery and continuing use of blood thinners, a medical review disqualified Husband from "activities where significant trauma is likely, such as wrestling, subduing, or restraining a resisting person," which in turn disqualified him from Special Agent duties. Husband's forced retirement, while not per se proving changed circumstances, was relevant in deciding if he could pay maintenance and still meet his own financial needs. See Draper v. Draper, 982 S.W.2d 289, 292 (Mo.App. 1998).

Wife argues that Husband could find an accounting job, using his education and the skills from his past employment, to supplement his retirement income. Thus, Wife claims the trial court should have imputed income to Husband based upon his ability to earn. See, e.g., Leslie, 827 S.W.2d at 183. But Husband is not a CPA; he last worked as an accountant in 1977; his Treasury job did not use or develop accounting skills transferable to private employment; and if he took a different Treasury job, his income would be less than his retirement payments.

Unlike Wife, the ex-wives in Leslie, Katz, and Hughes suffered medical problems and limited employability that exacerbated their financial distress.⁴ Further, their ex-husbands quit work less than two years after being ordered to pay maintenance, raising legitimate inferences they did so to avoid maintenance. There can be no such inference here. Husband paid Wife maintenance nearly seven years before he was forced into retirement.

With respect to Point II, Section 452.370.1 requires the court to "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." Husband testified that he and his new wife shared some expenses listed in his financial exhibits. Wife argues Husband never properly allocated those shared expenses between himself and his new wife.

Husband testified that his new wife paid for all of their food, household and living expenses, payments for two automobiles, and her orthodontic expenses. More importantly, the shared expenses may be part of changed circumstances, but they are not the whole. Husband's income dropped after his forced medical retirement. Wife's financial circumstances improved, since she got more money from Husband's retirement benefit and Husband assumed her child support obligation.⁵ The trial court considered these and all aspects of the parties' finances. Since no findings were requested, all factual issues are found in accordance with the judgment. Rule 73.01(c).

Citing Gornbein, Point III complains because Husband listed his maintenance obligation in his income and expense statement. We fail to see why this was improper, or that Gornbein so holds. Gornbein observes that "changed circumstances" connotes a departure from prior known conditions, which means a maintenance award anticipated by the final dissolution is no "changed circumstance" itself. 124 S.W.3d at 60. This does not mean parties should omit relevant data from financial exhibits upon which the court relies. To do so invites error or worse. Husband did not claim the original maintenance award was a changed circumstance, and the record does not suggest Husband misled the court by listing maintenance with his other expenses.

We will consider Points IV and V together. Point IV seeks to discount as "voluntary" Husband's average monthly payments of $527⁶ — over and above his child support payments — toward Andrew's rent, food, auto insurance and expenses, and cell phone. Point V claims a failure to prove Wife had not made good faith efforts to achieve financial independence. These points fail because the record supports the trial court's "changed circumstances" finding, especially with our standard of review and all fact issues being found in accordance with the judgment. Husband was forced into retirement. He now makes substantially less than before, and his expenses exceed his income. Wife's salary now is higher than in 1998, and she recently added more income as the assistant cheerleading coach. Husband's retirement annuity also pays Wife $667 per month, which after taxes still exceeds her $500 maintenance. Further, Wife no longer owes child support.⁷ Husband agreed to assume that obligation for her, reducing her monthly expenses even more. These factors support the trial court's finding of changed circumstances, notwithstanding Wife's contrary arguments.

Point VI claims the trial court erred in failing to treat, as marital property, the monthly payments she gets from Husband's forced retirement. Citing Leslie, Wife asserts she cannot be forced to consume her apportioned share of marital property to retain an award of maintenance.

Leslie is inapposite. The parties confirmed at oral argument that Wife's stream of income will continue unabated for her lifetime. Her entitlement to future payments is neither consumed nor reduced by the monies she receives. Neither party listed Wife's annuity as an "asset" in the financial exhibits for this proceeding, but instead treated it as an income stream. These payments do not consume Wife's apportioned property as Leslie proscribes.

Point VII claims that the court erred in designating its termination of maintenance non-modifiable. Husband agrees. Section 452.370 provides no basis to designate a judgment modifying maintenance as either modifiable or non-modifiable. Haynes, 25 S.W.3d at 674. As Husband suggests, we will reverse and remand with directions to correct this error.⁸

Subject to our Point VII ruling and given our standard of review, we cannot say the trial court erred in concluding that Husband's forced retirement and reduced income, Wife's increased income via Husband's retirement benefits, and Husband's assumption of Wife's child support obligations discussed infra, constituted changed circumstances substantial and continuing enough to justify terminating the original...