Ramsey v. Ramsey, 72312

• Decision Date: 17 March 1998
• Docket Number: No. 72312,72312
• Citation: 965 S.W.2d 365
• Parties: Jesse Ray RAMSEY, Respondent, v. Marilyn Morgan RAMSEY, Appellant.
• Court: Missouri Court of Appeals

Page 365

965 S.W.2d 365

Jesse Ray RAMSEY, Respondent, v. Marilyn Morgan RAMSEY, Appellant.

No. 72312.

Missouri Court of Appeals,

Eastern District,

Division Four.

March 17, 1998.

Dale E. Gerecke, Bradshaw, Steele, Cochrane & Berens, L.C., Cape Girardeau, for appellant.

Kimberly S. Essary-Price, John L. Oliver, Jr., Oliver, Oliver & Waltz, P.C., Cape Girardeau, for respondent.

SIMON, Judge.

Marilyn Ramsey, mother, appeals the trial court's termination of maintenance payments from Jesse Ramsey, father. On appeal, mother contends that the trial court erred in terminating the maintenance obligation of father because the judgment is not supported by substantial evidence, is against the weight of the evidence, and erroneously declares and applies the law in that there was no showing of a change in circumstances so substantial and continuing as to make the terms of the prior decree unreasonable as the mother was only employed for two months before she took a leave of absence to care for the parties' seriously ill child. We reverse and remand.

The trial court's judgment will be sustained unless there is no substantial evidence to support its decision, its judgment is against the weight of the evidence, or it erroneously declared or applied the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).

The record reveals that on August 10, 1994, the marriage of mother and father was dissolved. The Judgment and Decree of Dissolution provided, in pertinent part:

5. Two (2) children were born of this marriage, to wit: Alexis Morgan Ramsey (Lexi), born on July 4, 1990, and Abigale Currie Ramsey, born on September 9, 1991.

* * *

16. On July 9, 1992, the eldest child, Alexis, known as Lexi, was diagnosed with Acute Lymphocytic Leukemia. As a result she needs treatment in St. Louis and Cape Girardeau on a regular basis.

17. [Mother] is college educated, graduating with honors, and holds a Lifetime Teaching Certificate in the State of Missouri as a Special Education Teacher in Learning Disabilities.

18. [Mother], by agreement of the parties, took a voluntary leave of absence from her teaching position to have the first child of the marriage.

19. [Mother] became pregnant again, an area of contention between the parties, resulting in the birth of the second child of the marriage, Abigale Currie Ramsey, born on September 9, 1991. Abigale, known as Abby, has no known health problems at this time.

20. During her pregnancy with the second child [mother] resigned her teaching position with the Cape Girardeau School District. [Mother] remained unemployed until separation and has not sought full-time employment since separation primarily due to the illness of Lexi. * * *

22. [Father] ultimately took a position with Southeast Hospital as an Emergency Room physician, employment which he continues to hold.

23. By August 7, 1992 Lexi was in remission as to her Leukemia and is currently progressing well in the "Maintenance Phase" of her medical care and treatment during which hospitalizations do not normally occur. She has however experienced numerous illnesses which have required hospitalizations in St. Louis.

24. Lexi's chances for full recovery are statistically excellent, however, she must periodically return for out-patient care and check-ups at St. Louis Children's Hospital as follows:

a. Every six (6) weeks for purposes of an outpatient procedure ...

b. Every twelve (12) weeks over the course of the next year; [Lexi] will be finished with her chemotherapy in July of 1995; thereafter, she will be seen once every six (6) months for one (1) year and then one time a year for the next five (5) years:

25. [Mother], over the objection of [father], administers Lexi's medication, including the chemotherapy injections, although she has no formal medical training and Lexi's local pediatrician ... is available. While [father] objects, this method of operation appears to be normal and less traumatic for young patients.

* * *

66. Although [mother] has been the primary caretaker since birth, taking into consideration all statutory factors under Section 452.375 RSMo, the best interests of the children require that the parties be granted joint physical and joint legal custody so that [father] can be assured of a meaningful and continuing relationship with the minor children.

67. While [mother] has been at home with the children continuously since their respective births, she is able to work and earn a substantial income. She will [intend] to return to work upon dissolution of the marriage and will need to do so. [Mother] is licensed in a teaching specialty where employment should not be difficult to find. Upon obtaining a contract [mother] will be capable of supporting herself. Since contracts for the 1994-1995 school year have already been signed, she has asked for maintenance only until September of 1995 when she fully expects to find full-time employment in and around Cape Girardeau, Missouri.

68. While [mother] has only asked for maintenance until September 1995 it is this court's interpretation of current case law that it cannot order maintenance to terminate on a specific date based on events which are speculative ... There was no evidence, much less substantial evidence, of full-time employment for [mother] in this case, only speculation. In fact, considering the medical condition of Lexi Ramsey, full-time employment for [mother] in 1995 may be even more speculative than for someone else with her training.

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70. The court has reviewed the relevant facts set forth in [Section] 452.335.2 RSMo including: the marital property awarded to [mother]; [mother's] inability to meet her needs independently at this time; [mother's] present unemployment; [mother's] total lack of income and need to find alternative housing; [father's] earnings as a physician of $219,999.00 in 1993 and related fringe benefits; the high standard of living established during the marriage; the obligations and assets awarded to each party and the separate property of each party; the marriage of eight (8) years duration; the ability of [father] to meet his needs while meeting those of [mother]; [father's] misconduct during the marriage ... and all of the other evidence and testimony, and finds that [father] should pay to [mother] maintenance of $2,000.00 per month.

* * *

After the dissolution, father continued to live in Cape Giradeau, work as an emergency room physician, and in April, 1995, remarried. In April, 1996, father filed a motion to modify the decree. We note that the original motion to modify is not included in the record on appeal.

On April 23, 1996, mother executed a contract for employment with the Farmington, Missouri School District (school district) for the 1996-1997 academic school year at a salary of $25,760.00. On July 19, 1996, mother executed a second contract with the school district, which reflected a salary of $27,195.00. Mother moved to Farmington and began work on August 18, 1996, providing special education for five and six-year-olds.

On September 30, 1996, father filed his first amended motion for modification, contending, in pertinent part that: (1) the judgment and decree of dissolution of marriage contemplated that after approximately one year maintenance should or would cease or at least recognized that two years of maintenance was sufficient enough support for mother; (2) father has paid maintenance to mother well beyond the term of one year, that is, over two years to date; (3) mother never made a genuine, fair, or reasonable attempt to obtain suitable employment of any kind during the first year after the dissolution; (4) mother never made a genuine and good faith attempt to find employment in the local area; (5) mother is fully-employed as a kindergarten teacher for the Farmington School District and is fully sufficient; (6) there is no good reason why father should be required to continue to provide maintenance to mother; and (7) circumstances have regularly, materially and substantially changed since the judgment and decree so as to make the terms and conditions of the judgment and decree as to maintenance unreasonable, unnecessary, unfair and without justification.

On October 6, 1996, mother discovered Lexi had leg and back pain and was running a fever of 104.6 degrees. Mother treated Lexi and notified her supervisor, the principal, she would not be into work the following day due to her daughter's illness.

On October 7, 1996, mother took Lexi to her pediatrician in Cape Giradeau, who examined Lexi, ran tests and referred mother to Lexi's oncologist in St. Louis. In a phone conversation, the oncologist instructed mother to bring Lexi to see her the following morning because she was presenting some signs of a relapse. That evening, mother updated the principal of Lexi's condition and the upcoming trip to St. Louis.

On October 8, 1996, Lexi was admitted to St. Louis Children's Hospital (Children's) and diagnosed as being in full relapse and received a bone marrow aspiration. On October 9, Lexi underwent surgery to place a port-a-cath and remained in the hospital, being treated with chemotherapy.

On October 11, 1996, father filed another amended motion for modification, denominated also as "first amended motion for modification," which was identical, in pertinent part, to his previous motion for modification.

On October 16, 1996, Lexi was discharged, staying first with mother and then with father. From October 21 to October 31, Lexi was readmitted to Children's for treatment of a pseudomonas infection. Upon discharge, Lexi again stayed with mother and then with father. On November 5, 1996, Lexi was readmitted to Children's for white blood cell injections and remained in the hospital until November 11. Upon discharge, Lexi spent a day with father and two days with mother. On November 14, Lexi was readmitted to Children's again for treatment of a pseudomonas infection after mother noted Lexi had a fever and a...