Seelig v. Seelig
| Decision Date | 13 July 1976 |
| Docket Number | No. 36381,36381 |
| Parties | Sigmond C. SEELIG, Respondent, v. Estelle K. SEELIG, Appellant. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Ackerman, Schiller & Schwartz, Clayton, for appellant.
Love & Lacks, Chester A. Love, Jr., George A. Adolf, Clayton, for respondent.
Defendant appeals from the judgment of the trial court which modified a decree of divorce relieving plaintiff of all further obligations to pay alimony. We reverse.
After twenty-five years of marriage defendant-wife was granted a decree of divorce from plaintiff-husband on December 6, 1972. The parties settled their property rights by way of stipulation. The court accepted the stipulated recommendation of the parties that defendant have custody of the minor son, Robert, and that plaintiff pay the sum of $150.00 per month to defendant for support of Robert. The parties further stipulated that plaintiff pay to defendant 'the sum of $575.00 per month as and for alimony.' The latter stipulation was made part of the decree. By the stipulation defendant was permitted to live in the family home until April of 1974 at which time she could purchase plaintiff's one-half interest or the real estate would be sold and the proceeds divided.
Fourteen months after the decree the plaintiff filed a motion to modify the decree seeking to be relieved of his obligation for alimony and child support. Defendant then filed a motion to modify seeking an increase in maintenance, child support and attorney's fees.
The court made findings of fact and entered its decree in which it denied defendant's motion to modify in all respects and denied plaintiff's motion to modify as to child support. The court granted plaintiff's motion to terminate his obligation to pay alimony. The court further denied defendant's request for an allowance for attorney fees.
Neither party takes issue with the court's refusal to modify the judgment as to the support for the minor son, Robert.
This case was one of the first cases to come before the trial court after the Dissolution of Marriage Act Sections 452.300 to 452.415 became effective and the trial court in entering its decree frankly expressed its concern with respect to the interpretation which would be accorded the new act.
The statute, with respect to modification, unlike its predecessor, 1 codifies the standards to be considered in modification.
That portion of Section 452.370 which governs the modification of decrees of dissolution, which is pertinent to our consideration of this case reads:
'. . . the provisions of any decree respecting maintenance or support may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.'
An original judgment is res judicata as to the facts and conditions bearing upon the award and existing at the time of its rendition, as shown by the evidence. The burden of showing a change of circumstances 'so substantial and continuing as to make the terms unreasonable' is upon the party seeking modification of the decree. Dodds v. Dodds, 353 S.W.2d 810 (Mo.App.1962).
We begin our review with these basic guides. Our review is that accorded cases of an equitable nature. We defer to the trial court's vantage with respect to the credibility of the witnesses. Rule 73.01. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).
The court found that plaintiff had a net worth of $41,619.97 at the time of the hearing on the motion. No finding was made with respect to plaintiff's net worth as of the entry of the divorce decree. The court found that defendant had a net worth of $171,373.00 as of the date the motion was heard; that $65,900.00 of that amount had been received by defendant since the decree of divorce; this consisted of $3,000.00 executrix fee and $62,900.00 inheritance from her father's estate. The court found this to constitute 'a substantial change in circumstances.' No finding was made as to defendant's net worth at the time of the decree.
The court further found that plaintiff's income for periods pertinent to the case to be: 1971--$32,748.15; 1972--$60,041.81; 1973--$26,142.86; and for the first six months of $1974--$9,273.00. The court found that plaintiff's income had declined from the date of the decree and that the decline in income constituted 'a substantial change in circumstances, from the income (plaintiff) had at the time of the divorce.'
The court concluded that the 'total net worth of (defendant) plus the income . . . from her various corporations indicates that she must support herself and that there is no obligation on the part of petitioner to pay maintenance to (defendant).'
Before we can consider the question of the extent, if any, of maintenance due either spouse upon a motion to modify, we must consider the question of whether there has been a substantial and continuing change in circumstances which would render the terms of the original decree unreasonable.
We consider first the finding that there had been a substantial change in circumstance resulting from funds received by defendant since the date of the decree. Of the $65,900.00 attributed to the increase in net worth $3,000.00 was income from services rendered as co-executrix of her father's estate. The value of the stock of the closely held family corporation ($11,400.00) were based upon the inheritance tax appraisal file of the probate court. At most this would reflect the value of the stock as of April 20, 1969. Plaintiff produced no evidence of the present value of the stock. This is of no significance in view of the conclusion which we reach.
The source of the funds received after the divorce is the estate of defendant's father, H. E. Krisman. Mrs. Seelig's father died on April 20, 1969, approximately three and one-half years before defendant obtained her divorce from plaintiff. Letters testamentary were issued May 22, 1969. Mrs. Seelig was co-executrix of the estate.
Title to the inherited properties passed to defendant upon the death of her father subject to the possession of the executors during the period of administration. The property was chargeable with expenses of administration and other claims § 473.260. Defendant had title to the inheritance prior to the date of the decree of divorce. Although the exact amount had not been determined the time for filing claims had passed and a reasonable expectation could be readily determined. The only testimony which was admitted with respect to this subject came from defendant. 2 She testified that the amount which she received was less than she had anticipated. The only evidence presented by plaintiff with respect to his issue was that defendant received the distribution above described after the decree of divorce had been granted. Title to the inheritance had passed to defendant and was a part of her net worth prior to and at the time the parties were divorced. The plaintiff failed to carry his burden of showing that the physical receipt of defendant's inheritance constituted a substantial change in circumstances.
The other element of substantial change found by the court was a decline in plaintiff's income. In view of the fact that the amount of alimony was reached by agreement as set forth in the stipulation we have no evidence of record as to be basis upon which this figure was determined. The stipulation is silent with respect to the representation of the parties as to their income and as to their reasonable needs.
The divorce was granted on December 6, 1972. Plaintiff's total income for the year 1972 was $60,041.81. Of this amount $17,017.81 consisted of extraordinary or non-recurring income. Plaintiff had capital gains upon the sale of assets and received his share of the profit-sharing plan of his former employer. The income from his employment as a stockbroker on commissions was $43,034.00. The record is devoid of any evidence indicating that the final figures on plaintiff's income were available at the time the stipulation setting the amount of alimony was entered into. The plaintiff's income from commissions in the full year preceding the divorce, 1971, was $32,195.15. His total income for 1971 was $32,738.15.
As plaintiff testified, the year following the divorce was a bad year for the stock market. Plaintiff's income followed the fortunes of the market in that year just as it had followed the good fortune of the market in the year before. In 1973 plaintiff's income from commissions dropped to $25,977.86. His total...
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