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Hopkins v. Hopkins

Court of Appeals of Missouri, Western District, Third Division

November 25, 2014

TERRY ANNETTE HOPKINS, Respondent,
v.
CHARLES DAVID HOPKINS, Appellant

Page 794

[Copyrighted Material Omitted]

Page 795

Appeal from the Circuit Court of Pettis County, Missouri. The Honorable Paul Beard II, Judge.

Myron J. McNeal, Sedalia, MO, for respondent.

Steven A. Fritz, Sedalia, MO, for appellant.

Before: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge. All concur.

OPINION

Page 796

Cynthia L. Martin, Judge

Charles David Hopkins (" Husband" ) appeals a trial court judgment denying his motion to terminate his maintenance obligation to Terry Annette Hopkins (" Wife" ). Husband argues that the trial court erred (1) by declining to terminate maintenance even though it found that Wife and Robert Naylor (" Naylor" ) were in a permanent relationship; (2) by failing to terminate maintenance even though Wife was assisting the four people living with her with some of their minor needs; and (3) because the trial court's judgment was against the weight of the evidence and not supported by substantial evidence.

Finding no error in the trial court's judgment, we affirm.

Factual and Procedural History[1]

Husband and Wife were divorced on December 21, 1998. The divorce decree ordered Husband to pay $1,000 in maintenance to Wife. On June 29, 2001, maintenance was reduced to $489 a month following Husband's motion to terminate his maintenance obligation. On July 12, 2013, Husband filed a second motion to terminate his maintenance obligation. Wife filed a counter motion to modify maintenance, seeking to increase in maintenance to $800 a month.

Wife lives with four other people in the house she received as part of the divorce decree: her 30-year-old daughter, her 9-year-old grandson, her daughter's girlfriend, and Naylor. Along with the maintenance payment from Husband, Wife receives $578 a month in Social Security Disability payments. Her total monthly income is $1,067. Wife does not work on account of her disability. She has $1,155 in monthly expenses, which includes $104 a month that Wife pays toward her daughter's dental bill. Wife does not contribute to Naylor's expenses. Naylor and the other three residents in Wife's home live there rent free. The trial court concluded that at worst this resulted in some additional electrical consumption paid by Wife. Wife's daughter's girlfriend and Naylor each pay their share of Wife's water bill, cable bill, and cell phone bill. No other financial contributions are made to the household expenses. In all other respects,

Page 797

the trial court found that the residents in Wife's home provide for their own support.

Naylor has been living with Wife in the house for about six years. Each said that they " guess" they are living as husband and wife, but the trial court found that their relationship is more akin to roommates who have agreed to have sex. The two do not share a bedroom, do not commingle their finances, share no bank accounts or credit card accounts, and have no present intent to get married. The two had discussed marriage a couple of times but Naylor does not believe in marriage. The trial court found that cohabitation with Naylor " provides [Wife] emotional support but no financial support." Other than Naylor's payment of his share of the water, cable and cell phone bills, Naylor has not contributed financially to Wife. There was no evidence that Wife or Naylor have provided for each other in their respective wills or named each other on any insurance policies.

Naylor works as a mechanic for a local business. Payroll records show that in 10 months in 2013, Naylor received $23,173.82 in net income. Naylor said he has monthly expenses of $1,629.29, which includes roughly $400 in medical and prescription drug costs. Naylor also has had recurring back problems that could affect his ability to work in the future.

Husband works as a maintenance man for a local company. Husband submitted that he makes $2,000 a month in net income, his wife receives $1,891 a month in Social Security Disability payments, and he has $4,404 in average monthly expenses. Husband said he wanted to eliminate his maintenance obligation both to make repairs to his home and to save money so he can retire.

Following a hearing, the trial court entered a judgment denying Husband's motion to terminate his maintenance obligation and Wife's cross-motion seeking to increase maintenance (" Judgment" ).[2]

Husband appealed, alleging three points of error.

Standard of Review

" Our review of a ruling on a motion to modify maintenance is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)." Almuttar, 25 S.W.3d at 671. The trial court's judgment will be affirmed " unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law." Id. " We give deference to the trial court's greater opportunity to judge the credibility of witnesses and the weight given opinion evidence." Id. The trial court " may believe or disbelieve all, part, or none of the testimony of any witness." Butts v. Butts, 906 S.W.2d 859, 861 (Mo. App. S.D. 1995). " The trial court is given considerable discretion as to the allowance and the amount of maintenance payments, and it is the appellant's burden on appeal to demonstrate an abuse of that discretion." Almuttar, 25 S.W.3d at ...


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