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10/30/97 DALE EDWARD GERECKE v. CECELIA GAYLE

October 30, 1997

DALE EDWARD GERECKE, PETITIONER-APPELLANT/RESPONDENT,
v.
CECELIA GAYLE GERECKE, RESPONDENT-RESPONDENT/APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF SCOTT COUNTY. Honorable David A. Dolan, Judge.

Robert S. Barney, Judge. Parrish, P.j. - Concurs, Montgomery, C.j. - Concurs.

The opinion of the court was delivered by: Barney

The fourteen-year marriage between Dale Edward Gerecke (Ex-Husband) and Cecelia Gayle Gerecke (Ex-Wife) was dissolved on October 4, 1994. The marriage produced no children. Their dissolution decree ordered Ex-Husband, inter alia, to pay Ex-Wife $1,000.00 per month as maintenance. The instant action was brought by Ex-Husband to terminate his maintenance obligation to Ex-Wife. Following a court-tried case, the trial court entered a "non-modifiable" order which terminated Ex-Husband's decretal maintenance obligation to Ex-Wife. Both parties appeal. We have consolidated their respective appeals herein.

Ex-Wife appeals the trial court's order, assigning four points of trial court error. First, Ex-Wife maintains that the trial court erred in making its order non-modifiable. Second, Ex-Wife maintains that the trial court erred in determining that her business, Victorian Memories, had become successful and profitable. Third, Ex-Wife contends that the trial court erred in determining that Ex-Husband's income had significantly decreased. Finally, Ex-Wife contends that the trial court erred in determining that she had sufficient income and property to satisfy her reasonable needs for support.

Ex-Husband appeals the trial court's order, assigning one point of trial court error. He asseverates that the trial court should have retroactively terminated his maintenance obligation, effective February 29, 1996, rather than on July 30, 1996, the date of the trial court's order.

I.

Appellate review of a ruling on a motion to modify maintenance is pursuant to Rule 73.01(c) and is limited to a determination of 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. *fn1 Butts v. Butts, 906 S.W.2d 859, 861 (Mo.App. 1995) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). We accept all reasonable inferences and evidence favorable to the order and disregard all contrary inferences. Butts, 906 S.W.2d at 861. This Court will also give deference to the trial court in judging the credibility of witnesses. Gibson v. Adams, 946 S.W.2d 796, 800 (Mo.App. 1997). The trial court may believe or disbelieve all, part, or none of the testimony of any witnesses. Butts, 906 S.W.2d at 861. An appellate court will defer to the trial court on its decision to modify a maintenance award even if the evidence could support a different Conclusion. Id. It is with these guidelines that we review the issues raised on appeal.

II.

(Ex-Wife's Appeal No. 21375)

For the sake of clarity, we address Ex-Wife's four assignments of trial court error out of order. Further, we discuss her second, third and fourth assignments of error together because they are inseparably related. In these three assignments of error, Ex-Wife maintains that the trial court's order which terminated Ex-Husband's maintenance obligation to her was against the manifest weight of the evidence because (1) she does not have the ability to support herself, (2) her business' success was immaterial as to her individual income, and (3) Ex-Husband failed to meet his burden of showing a substantial change in his financial circumstances proving that his income had significantly decreased, particularly in comparison with hers.

Pursuant to section 452.370 a modification of maintenance requires "a showing of changed circumstances so substantial and continuing as to make the terms unreasonable." *fn2 See § 452.370.1; see also Butts, 906 S.W.2d at 861-62. The statutory standard for modification is designed to be strict so as to discourage recurrent and insubstantial motions for modification. See Butts, 906 S.W.2d at 862. The burden of proving substantial and continuing change rests with the moving party. Id.

We note that the trial court did not issue any specific findings of fact and Conclusions of law and the record failed to reveal any request for same by either party. "All factual issues upon which no specific findings have been made should be interpreted as having been found in accordance with the result reached." Gibson, 946 S.W.2d at 800.

Ex-Wife maintains that it was trial court error to determine that she was earning a sufficient income to meet her reasonable needs. Ex-Wife contends that her business is, in fact, not financially successful and therefore her individual income derived from that business is insufficient to meet her financial obligations.

Ex-Wife has owned and operated the business Victorian Memories in Cape Girardeau, Missouri, since about 1993. *fn3 Ex-Wife leases a 3,000 square feet retail space in the West Park Mall in Cape Girardeau.

For fiscal year 1994, Ex-Wife's first year in business, Victorian Memories generated sales of $196,311.85. *fn4 The gross profit for that year was $88,906.59. After paying operating expenses, Ex-Wife's business had a net income of $34,427.24. In fiscal year 1995, sales amounted to $100,912.27. *fn5 Gross profits for fiscal year 1995 were $7,530.42. After paying operating expenses, Ex-Wife's business experienced a net loss of $29,956.90. *fn6 However, she testified that for fiscal year 1996, her business generated sales of $207,797.88. Gross profits for the fiscal year were $41,942.30. *fn7 The business had a net income of $5,515.38 after payment of operating expenses and taxes for fiscal year 1996. Ex-Wife's stockholder's equity increased from $4,970.00 for fiscal year 1995 to $10,486.00 for fiscal year 1996.

Financial statements prepared by Ex-Wife's accountant, Mr. Steve Dirnberger, corroborated the above sales and stockholder's equity figures. There was no testimony to suggest that Ex-Wife's business would not experience future prosperity and profitability. To the contrary, Mr. Dirnberger testified that Ex-Wife's business has experienced substantial growth in inventory value and assets during the previous fiscal year. *fn8 Mr. Dirnberger also testified that Ex-Wife has been successful in lowering her business-related debts.

We note that maintenance awards proceed from "the need for reasonable support by one spouse from the other after the disruption of the marriage." Cates v. Cates, 819 S.W.2d 731, 734 (Mo. banc 1991). "Maintenance issues for support and only for support--and then, until the dependent spouse achieves a reasonable self-sufficiency." *fn9 Id. at 735. A maintenance award may extend only so long as the need for support exists. Id.

In our review of the parties' marriage dissolution decree, we note that the trial court stated that while Ex-Wife is unemployed at the present time, "it is contemplated by the parties that the [Ex-Wife], who does have considerable retail management experience and who has owned and operated her own retail gift shop, will re-open her retail gift shop." *fn10 The trial court's dissolution decree which awarded maintenance to Ex-Wife was constructed in a manner suggesting that such maintenance award would indeed be modified after Ex-Wife began fruitfully operating her business again. The maintenance award was expressly made modifiable. See § 452.335.3.

Ex-Wife re-opened her store within one month following the parties' marriage dissolution. Eased on the testimony and financial statements regarding the prosperity of Ex-Wife's business, it is apparent that since the marriage dissolution decree was entered, Ex-Wife has vigorously managed her gift shop into a financially successful enterprise, which generated gross profits in excess of $40,000.00 for fiscal year 1996. "As sole shareholder, [she] could unilaterally control the amount of [her] compensation." In re Marriage of Gardner, 890 S.W.2d 303, 305 (Mo.App. 1994). Instead of taking compensation, however, she chose to augment her inventories and contribute to the increase of stockholder's equity in her corporation. Therefore, despite Ex-Wife's protestations to the contrary, based on the sales and profits generated by her business, there is sufficient evidence ...


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