Wiebusch v. Deke, WD

• Decision Date: 20 December 1988
• Docket Number: No. WD,WD
• Parties: Robert Eugene WIEBUSCH, Appellant, v. Laverne Geraldine (Wiebusch) DEKE, Respondent. 40067.
• Court: Missouri Court of Appeals

Page 521

762 S.W.2d 521

Robert Eugene WIEBUSCH, Appellant, v. Laverne Geraldine (Wiebusch) DEKE, Respondent.

No. WD 40067.

Missouri Court of Appeals Western District.

Dec. 20, 1988.

Sharlie Pender, Kansas City, for appellant.

J. Kent Emison, Bradley, Langdon, Bradley & Emison, Higginsville, for respondent.

Before SHANGLER, P.J., and CLARK and FENNER, JJ.

CLARK, Judge.

This is an appeal from an order by the trial court modifying a dissolution of marriage decree by increasing child support payable by appellant-father to respondent-mother. Appellant contends the judgment was in error because unsupported by the evidence and because the amount of support ordered was an onerous burden exceeding appellant's financial resources. We reverse in part.

The parties were divorced in 1972 at which time respondent was awarded custody of three minor children. Appellant was ordered to pay child support of $60.00 per month for each child. In 1974, the amount was increased to $75.00 and this was raised in the last previous modification to $90.00 a month effective in 1982. Only one of the three children, Ryan who was age 18 at the time of the present motion hearing, remains dependent for purposes of appellant's court ordered support payments.

Respondent moved for increased support on account of Ryan and a hearing was conducted. The court granted respondent's motion and ordered support payments increased to $125.00 a month. The court also assessed a one time contribution of $4500.00 toward college expenses and directed that the amount be paid in three equal installments on November 2, 1987, November 2, 1988 and November 2, 1989.

The first point appellant raises asserts that the increase in child support cannot stand because respondent failed to show changed circumstances so substantial and continuing as to make the terms of the prior decree unreasonable. In reviewing this contention we note that not every change in circumstances will justify a modification of the decree. In the enactment of § 452.370, RSMo 1986, the legislature intended to require a stricter standard for modification of a decree than was formerly required. The burden of demonstrating a substantial and continuing change of circumstances is upon the movant. Crowell v. Crowell, 742 S.W.2d 244, 246 (Mo.App.1987), and cases there cited.

With these precepts in mind, we review the evidence presented to the trial judge. That evidence was essentially undisputed and may be summarized as follows.

The primary consideration which prompted respondent to seek an increase in child support was the enrollment of the son, Ryan, as a freshman student at the University of Missouri. Respondent presented a summary of anticipated college expenses for the 1987-88 school year. The total cost for tuition, books and supplies, room and board and personal expenses was estimated by her to be $5650.00. Of this amount, $2550.00 was to be contributed by the respondent, the balance being defrayed by a scholarship and by a loan Ryan obtained from other sources.

Respondent offered no evidence of any comparative increases in general household expenses between 1982 when the last prior award of child support was made and the current date. She did present an exhibit listing various household expenses as of the date of hearing, but in response to counsel's inquiry as to what had changed in that respect since 1982, respondent answered, "Oh, I really don't remember, but I guess it was very nearly the same."

The income of the parties was also a subject of testimony. At a date prior to the last previous order modifying this decree in 1982, respondent remarried. Both she and her present husband are employed and have a combined net income of $1838.00 per month after taxes. Respondent's earnings contribute $600.00 per month to this amount. Respondent and her husband also conduct a farming operation in Saline County. The only change described in respondent's income was an increase as compared to her earnings in 1982.

Appellant's income before taxes is approximately $1000.00 per month, primarily from a home improvement business he operates. The sum described includes $70.00 per month from interest on bank deposits. Appellant's income is equal to or less than his earnings in 1982. Appellant owns 100 acres of land in Lafayette County, subject to an unspecified indebtedness secured by a deed of trust. Appellant's assets have not increased since 1982, although he did sell some farm machinery converting the value to cash.

Based on the evidence summarized above, the trial court entered an order, the pertinent portion of which reads as follows:

[t]he Court ... finds that there has been a substantial change of circumstances since the entry of the Amended Decree herein and that the monthly child support for Ryan should be increased from Ninety ($90.00) Dollars per month as provided by the Decree to One Hundred Twenty-Five ($125.00) Dollars per month and further finds that petitioner Robert Wiebusch should pay the sum of Four Thousand Five Hundred ($4,500.00) Dollars towards the expenses incurred by Ryan in attending college, payable in three (3) installments of One Thousand Five Hundred ($1,500.00) Dollars on the following dates: November 2, 1987, November 2, 1988 and November 2, 1989.

The evidence described above includes no proof of substantial change in circumstances referable to respondent's economic status which would warrant a revision in the support order. As noted, respondent's income has increased since 1982 and she offered no proof of increased financial needs of the child, except for the college tuition, books and related items. Respondent's case for added support therefore rests on this latter category of expenses alone. It cannot be said that any increased ability of appellant to contribute was proved. To the contrary, appellant's circumstances have at least remained static if they have not deteriorated. The question then is whether respondent's proof of a net expense addition of $2550.00 for the 1987-88 school year supports the order which the trial court made.

The...