Shaver v. Shaver, 68264

• Decision Date: 16 January 1996
• Docket Number: No. 68264,68264
• Citation: 913 S.W.2d 443
• Parties: Patricia SHAVER, Petitioner/Respondent, v. John D. SHAVER, Respondent/Appellant.
• Court: Missouri Court of Appeals

Page 443

913 S.W.2d 443

Patricia SHAVER, Petitioner/Respondent, v. John D. SHAVER, Respondent/Appellant.

No. 68264.

Missouri Court of Appeals,

Eastern District,

Division One.

Jan. 16, 1996.

Bruce F. Hilton, Julie K. Morian, Eisen, Gillespie & Hilton, Webster Groves, for appellant.

Daniel P. Card II, Paule, Camazine & Blumenthal, P.C., St. Louis, for respondent.

REINHARD, Presiding Judge.

Husband appeals from the trial court's order dismissing his motion to modify the maintenance provisions of a July 17, 1986 dissolution decree. We affirm.

The marriage of husband and wife was dissolved on July 17, 1986. The separation agreement, incorporated into the dissolution decree, contained the following provisions for maintenance:

HUSBAND shall pay to WIFE as and for contractual maintenance the sum of $3,000 per month for a period of ten (10) years. If WIFE shall remarry during the ten (10) year period, then said amount will reduce to $1,500 per month for the balance of the ten (10) year period from the date of her marriage. If the second marriage shall fail within three (3) years of the date of the second marriage, ... HUSBAND agrees to increase the amount of maintenance back to $3,000 per month as contractually agreed to for the balance of the ten (10) year period....

If HUSBAND's income should, for any reason, be reduced, HUSBAND's obligation shall be reduced....

The separation agreement further provided:

The terms of this Agreement shall not be subject to modification or change, regardless of the relative circumstances of the parties, except as specifically set forth in the Agreement. It is understood that this provision is not applicable to the terms of the Agreement dealing with child custody, visitation and support....

On October 11, 1994, husband filed a motion to modify the maintenance provisions of the dissolution decree and alleged that wife had failed to seek employment and received financial support from a man with whom she cohabited. Wife filed a motion to dismiss the motion to modify and asserted several grounds, including failure to state a claim upon which relief could be granted. On March 30, 1995, the court granted wife's motion and dismissed husband's motion to modify but failed to state a basis for the dismissal.

On appeal, husband asserts the court erred in dismissing his motion to modify because he sufficiently alleged facts which would justify modification of his maintenance obligations.

Where a trial court fails to state a basis for its dismissal, we presume the dismissal is based on the grounds stated in the motion to dismiss. Berkowski v. St. Louis County Board of Election Commissioners, 854 S.W.2d 819, 823 (Mo.App.E.D.1993). We must affirm if the dismissal can be sustained on any ground supported by the motion to dismiss. Id.

Here, we do not review the case on the merits; rather, we must determine whether husband's pleading was sufficient to withstand a motion to dismiss. In assessing the sufficiency of the motion to modify, all facts properly pleaded are assumed true, the averments are given a liberal construction, and the motion is accorded all reasonable inferences fairly deductible from the facts stated. Id.

There are three types of maintenance: 1) decretal maintenance ordered by the court; 2) private contractual maintenance agreed to by the parties but not incorporated into the dissolution decree; and 3) separation agreement decretal maintenance agreed to by the parties and incorporated into the decree. Peaslee v. Peaslee, 844 S.W.2d 569, 572 (Mo.App.E.D.1992). In order to create contractual maintenance, the parties must expressly agree that the maintenance terms are not to be incorporated into the dissolution decree. Perkinson v. Perkinson, 869 S.W.2d 170, 172 (Mo.App.E.D.1993).

Although the separation agreement here labels the maintenance contractual, the dissolution decree clearly states:

It is further ordered, adjudged and decreed that the parties perform the terms of their separation agreement attached hereto, incorporated herein, and made a part of this decree[.]

Because the parties failed to expressly state that the maintenance provisions were not incorporated into the decree, we conclude the maintenance is separation agreement decretal maintenance.

This case is similar to Peaslee v. Peaslee, 844 S.W.2d 569 (Mo.App.E.D.1992), in which the separation agreement, including its maintenance provisions, was incorporated into the dissolution decree. We concluded that the Peaslee maintenance was...