Weston v. Weston, 18844

• Decision Date: 25 August 1994
• Docket Number: No. 18844,18844
• Parties: Heike WESTON, Respondent, v. Marion D. WESTON, Movant-Appellant.
• Court: Missouri Court of Appeals

Page 337

882 S.W.2d 337

Heike WESTON, Respondent, v. Marion D. WESTON, Movant-Appellant.

No. 18844.

Missouri Court of Appeals,

Southern District,

Division Two.

Aug. 25, 1994.

John R. Sims, Greg R. Bridges, Sims, Bridges and Dolence, Neosho, for movant-appellant.

Walter E. Williams, Joplin, for respondent.

GARRISON, Judge.

This is an appeal from a judgment modifying a dissolution of marriage decree. Appellant (hereafter referred to as Husband) contends that the trial court erred (1) by not terminating maintenance to his former spouse (Wife) because of her cohabitation with another man; (2) by not terminating maintenance because of Wife's failure to seek employment, or reducing it by an amount she was capable of earning; and (3) by awarding attorney's fees to her.

The parties met in Germany, Wife's native country, when Husband was stationed there in the military. Their marriage of approximately 31- 1/2 years produced three children, all of whom were emancipated at the time of the dissolution in April 1990. At that time, Wife was 50 years of age and, although she had obtained a GED from Crowder College, she had not been employed outside the home other than doing some menial work in Husband's optometry office. The dissolution court found that her employment opportunities were limited to minimum wage jobs and awarded her $1850 per month as maintenance.

In August 1992, Husband filed a motion to modify by which he sought to "terminate the maintenance order, or in the alternative reduce the same." He alleged that Wife was then cohabiting on a permanent basis with Victor Lippoldt under circumstances indicating that it was a substitute for marriage; Wife's expenses were less than contemplated at the time of the dissolution because of the cohabitation; Wife had made no effort to obtain employment or become self-sufficient; and Husband was unable to support himself and his business and also pay the maintenance award. Wife filed a counter-motion to modify in which she requested increased maintenance, alleging an inability to maintain her prior standard of living and Husband's financial ability to pay additional amounts.

The trial court sustained Husband's motion and reduced the maintenance from $1850 per month to $1568.50 per month. It denied Wife's motion but found that her reasonable expenses were $2871.50 per month. From that amount it apparently deducted $572 as the value of the contributions made for her benefit by Mr. Lippoldt and $731 per month representing what she could earn from a minimum wage job to arrive at the modified award of $1568.50. Husband appeals.

In reviewing an order entered pursuant to a motion to modify, we are limited to determining whether it is supported by substantial evidence, whether it is against the weight of the evidence, or whether it erroneously declares or applies the law. Rule 73.01(c), V.A.M.R.; Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Hicks v. Hicks, 798 S.W.2d 524, 525-26 (Mo.App.S.D.1990). Deference is given to the trial court's opportunity to judge the credibility of witnesses. Hoffmann v. Hoffmann, 676 S.W.2d 817, 826 (Mo. banc 1984). Considerable discretion is vested in the trial court concerning the amount of maintenance payments. Markowski v. Markowski, 736 S.W.2d 463, 465 (Mo.App.W.D.1987).

In his first point, Husband contends that the trial court erred by not terminating his obligation to pay maintenance because of Wife's cohabitation with Mr. Lippoldt, which he contends had achieved such a degree of permanence that it had become a substitute for marriage.

In Missouri, § 452.370, RSMo Supp.1992, provides, in pertinent part:

1. ... [T]he provisions of any decree respecting maintenance or support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable....

....

3. Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future statutory maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.

Missouri does not recognize a common law marriage. § 451.040.5; Whitley v. Whitley, 778 S.W.2d 233, 238 (Mo.App.W.D.1989); Stark v. Thierjung, 714 S.W.2d 830, 833 (Mo.App.E.D.1986). Likewise, Missouri courts have held that cohabitation is not the equivalent of marriage. Id.; Schloss v. Schloss, 682 S.W.2d 53, 54 (Mo.App.E.D.1984).

Husband, however, cites Taake v. Taake, 70 Wis.2d 115, 233 N.W.2d 449 (1975), and Rubisoff v. Rubisoff, 242 Miss. 225, 133 So.2d 534 (1961), for the proposition that cohabitation is sufficient in and of itself to terminate maintenance. Rubisoff does hold that in Mississippi conduct of a spouse after a divorce can, under some circumstances, amount to a forfeiture of the right to continued alimony. Id. at 538. Taake, however, holds only that a former wife's cohabitation with another man can constitute a change of circumstances affecting the former husband's responsibility to provide alimony but does not automatically bar future alimony. Taake v. Taake, 233 N.W.2d at 453. While Rubisoff does not refer to any statutory authority, Taake indicates that Wisconsin had a statute requiring the court to terminate alimony upon proof of remarriage.

A number of other cases from foreign jurisdictions have held that non-marital cohabitation may justify modification of a prior maintenance or alimony award if it results in a sufficient change of circumstances. Lydic v. Lydic, 664 S.W.2d 941 (Ky.App.1983), involved a Kentucky statute almost identical to § 452.370. There, the court rejected the concept that cohabitation was the equivalent of remarriage and would automatically terminate maintenance. It held that under the facts of that case there had not been such a substantial change of circumstances as to warrant termination of that obligation. The court in Van Gorder v. Van Gorder, 110 Wis.2d 188, 327 N.W.2d 674, 678-79 (1983), held that cohabitation, as one of the factors for consideration, may result in a change of the recipient spouse's economic status, thereby providing a basis for a modification of the award. Wight v. Wight, 168 W.Va. 334, 284 S.E.2d 625 (1981), recognized cohabitation as a basis for modification of alimony only if it created a change in the recipient spouse's economic condition. To the same effect are Bisig v. Bisig, 124 N.H. 372, 469 A.2d 1348 (1983); Mertens v. Mertens, 285 N.W.2d 490 (Minn.1979); Vance v. Vance, 287 S.C. 615, 340 S.E.2d 554 (App.1986); DePoorter v. DePoorter, 509 So.2d 1141 (Fla.Dist.Ct.App.1987); and Horr v. Horr, 445 N.W.2d 26 (S.D.1989).

The view that cohabitation may justify modification or suspension of maintenance if that relationship has affected the financial needs of the recipient was referred to with approval in Brown v. Brown, 673 S.W.2d 113 (Mo.App.W.D.1984). Although the Brown case involved an initial determination of entitlement to maintenance as opposed to modification of an existing award, the court reviewed the concept of maintenance as affected by a former spouse's non-marital cohabitation. It said that the majority view "holds that cohabitation requires modification or suspension of the alimony award if it is established that the support needs of the recipient have changed." Id. at 114. It also said:

The importance of the case law rationale in the instant case is that the attention of the courts has been directed to the satisfaction of the need and not the right to maintenance. The courts that have considered the issue have emphasized the effect of assistance of a cohabitant as a resource affecting the necessity for maintenance payments in closing the gap between the resources of the maintenance recipient and the need.

Id. at 115. The court also noted that because a spouse does not have a property right to receive support from a cohabitant, such support is irrelevant to the issue of a spouse's ability to be self-supporting, and it cannot be utilized to deny maintenance in a dissolution case. Id. at 116. The husband's contention that cohabitation barred the wife's right to receive maintenance in the dissolution action was rejected.

In the instant case, Husband relies primarily on the case of Herzog v. Herzog, 761 S.W.2d 267 (Mo.App.E.D.1988). He argues that while Missouri courts have not held that cohabitation alone is sufficient to terminate maintenance, Herzog stands for the proposition that it can be discontinued where the relationship has achieved a permanence so that it has become a substitute for marriage. The Herzog case involved a former husband's motion to modify maintenance in part because of his ex-wife's cohabitation with another man at the marital home which the wife received in the dissolution. The court acknowledged that maintenance is to provide for reasonable needs and arises from the obligations undertaken in the marriage; that the reason for the provision in § 452.370 which terminates the obligation to pay future maintenance upon remarriage of the receiving party is because, by the new marriage, that party thereby obtains the same obligation for support from another person; and that non-marital cohabitation does not normally carry with it the legal obligation of support which is an attribute of marriage and is subject to being terminated at any time with no legal repercussions or responsibilities. Noting that § 452.370 does not specifically provide that cohabitation by a former spouse receiving maintenance is a consideration on a motion to modify, it concluded that under equity principles, the trial court must evaluate the new relationship to determine whether equity justifies termination or modification of maintenance on the basis of that changed condition alone. The court indicated that where the relationship had achieved sufficient permanence to indicate that it was actually a substitute for marriage, a court was warranted in concluding that the right to support from the former marriage had been...