Reese v. Reese

• Decision Date: 13 October 1994
• Docket Number: No. 19204,19204
• Citation: Reese v. Reese, 885 S.W.2d 39 (Mo. App. 1994)
• Parties: Joycane Arlene REESE, Respondent, v. Billy Gene REESE, Movant-Appellant.
• Court: Missouri Court of Appeals

Page 39

885 S.W.2d 39

Joycane Arlene REESE, Respondent, v. Billy Gene REESE, Movant-Appellant.

No. 19204.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 13, 1994.

Gary A. Kamp, Marble Hill, for movant-appellant.

Richard Whiffen, Sikeston, for respondent.

GARRISON, Judge.

This is an appeal by Billy Gene Reese (Husband) from a judgment entered on his motion to modify a maintenance award in favor of his former spouse, Joycane Arlene Reese (Wife).

When the parties' marriage was dissolved in November 1988, Wife was awarded maintenance in the amount of $850 per month. At that time, Husband was an independent insurance agent and part-time pastor with a gross income of over $36,000 per year, while Wife was unemployed other than working in the family business, for which she received no direct income. Husband's gross income increased in 1989 to $49,466, and in 1990 it was $48,017.

In 1991, however, the Missouri Department of Insurance commenced an investigation of Husband, which resulted in the filing of an 11-count complaint with the Administrative Hearing Commission alleging misappropriation of money belonging to an insurance company or an insured person, breach of fiduciary duties, and allegations that he lacked trustworthiness and competence. Details of the investigation and complaint were made public in the news media in Southeast Missouri where Husband lived. In March 1992, Husband surrendered his license to sell insurance to the State of Missouri with the agreement that he would never ask for its reinstatement.

Husband testified that as a result of the adverse publicity surrounding the investigation and complaint, his income dropped in 1991 to $34,537, in 1992 to $9,427, and at the time of trial in September 1993, his income for that year had been $5,669. He further testified that he had been unable to find employment and that his income, consisting mainly of commissions on insurance renewals, was insufficient to meet his expenses. His attempts to find employment, however, had apparently been confined to the geographic area where he had previously sold insurance and where the adverse publicity had occurred.

The evidence also indicated that Wife, who had a tenth grade education, obtained a GED following the dissolution and ultimately became employed as a receptionist for a dentist. At the time of trial she was working an average of 32 hours per week earning $7.50 per hour. Her monthly expenses, however, were approximately $630 greater than her monthly income.

Husband sought a reduction or, in the alternative, termination of the maintenance award in his motion to modify, filed in May 1992, based upon the loss of his license to sell insurance in Missouri and the decrease in his income which he alleged was "through no fault of his own." The trial court, in a Judgment entered October 19, 1993, found a substantial and continuing change of circumstances and decreased the monthly maintenance award from $850 to $300 commencing November 2, 1993.

Appellate review of a modification order is limited in its scope and is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Bunch v. Bunch, 746 S.W.2d 634, 635 (Mo.App.E.D.1988). Therefore, this court must affirm the trial court's judgment unless it is not supported by substantial evidence, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Id. The trial court is in the best position to judge the credibility of witnesses. Weir v. Weir, 748 S.W.2d 190, 191 (Mo.App.E.D.1988). Deference is accorded the trial judge even if there is evidence which might support a different conclusion. Hughes v. Hughes, 761 S.W.2d 274, 276 (Mo.App.E.D.1988).

Husband's first allegation of error concerns the trial court's failure to terminate his maintenance obligation. In arguing that the judgment was against the weight of the evidence, Husband contends that his financial reverses and unemployment were "involuntary"; that because he is 54 years of age with an eighth grade education, it is unlikely that he will be able to find employment providing the income he previously realized from the insurance business; and that Wife is now employed. In court-tried cases, however, an appellate court may not set aside a judgment because it is against the weight of the evidence unless the record generates a firm belief that the judgment was wrong. Murphy v. Carron, 536 S.W.2d at 32; Westrich v Westrich, 694 S.W.2d 873, 879 (Mo.App.S.D.1985).

In the instant case, there was evidence from which the trial court could conclude that Wife, although employed, was unable to provide for her own reasonable monthly living expenses without maintenance. Also, the trial court was not required to believe that Husband was incapable of earning some income either within or without the geographic area where he was then living. While the evidence supported the finding that there had been a substantial and continuing change of circumstances, under the standard of review by which we are bound, it did not compel the conclusion that, as a matter of law, the maintenance award...