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Lindo v. Higginbotham

Court of Appeals of Missouri, Eastern District, Third Division

November 29, 2016

CHAILLE ANDERSON LINDO, Petitioner/Respondent
v.
JOHN THOMAS HIGGINBOTHAM, Respondent/Appellant.

         Appeal from the Circuit Court of St. Louis County Hon. John R. Essner.

          OPINION

          LISA S. VAN AMBURG, JUDGE.

         Appellant John Thomas Higginbotham appeals the trial court's judgment reducing, but not terminating, his maintenance obligation, retroactive to February 2015, and awarding Lindo attorney's fees. We affirm.

         Background

         On June 10, 1996, the marriage of Appellant Higginbotham and Respondent Lindo was dissolved. In its judgment and dissolution of marriage, the trial court ordered Higginbotham to pay Lindo modifiable maintenance totaling $1, 500 per month. It divided the parties' marital property and awarded Lindo certain retirement assets, including a portion of two pension plans. Lindo subsequently used some of the assets awarded to purchase two MetLife annuities.

         In December 2005, Higginbotham filed a motion to modify seeking to reduce his maintenance obligation or to terminate it. After a hearing, his request for modification was denied in full in November 2007. On April 10, 2014, Higginbotham filed another motion to modify seeking to terminate his maintenance obligation based on his anticipated voluntary retirement on September 1, 2014. That motion to modify is the subject of this appeal.

         In support of complete termination of maintenance, Higginbotham claimed that his income would decrease by half after he retired. He further claimed as a result of his retirement, Lindo would be eligible to receive her portion of his pension and Social Security benefits. Higginbotham claimed that the income from Lindo's portion of pension benefits, Social Security benefits, and employment enabled Lindo to support herself without spousal maintenance. Lindo filed a counter-motion to modify seeking an increase in maintenance, as well as a motion for attorney's fees and litigation costs.

         In May 2015, the trial court held an evidentiary hearing on both parties' motions to modify and heard testimony from Lindo and Higginbotham. The trial court subsequently entered a modification judgment reducing Higginbotham's monthly maintenance obligation to $750 and ordered Higginbotham to pay $6, 000 in attorney's fees and costs to Lindo. It further held that the modification was retroactive to February 2015, and the trial court ordered Lindo to pay Higginbotham $6, 000 as reimbursement for maintenance overpaid for the months of February through September 2015. The trial court denied Lindo's motion to modify in its entirety.

         Higginbotham appeals the trial court's judgment reducing rather than terminating maintenance, the retroactive effective date of Higginbotham's maintenance payments, and the trial court's award of attorney's fees to Lindo. We affirm the trial court's judgment.

         Standard of Review

         In a court-tried action to modify a maintenance award, we conduct our review in accordance with the standards enunciated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). We will uphold the court's judgment unless the judgment is not supported by the evidence, is against the weight of the evidence, or erroneously declares or applies the law. Id. "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.

         The evidence and reasonable inferences drawn therefrom are viewed in the light most favorable to the prevailing party. Id. The trial court is in a superior position to judge witness credibility and sincerity and, as such, may accept all, part, or none of any witness's testimony. Id. All fact issues upon which the trial court failed to make specific findings are considered as having been found in accordance with the judgment. Rustemeyer v. Rustemeyer, 148 S.W.3d 867, 870 (Mo. App. E.D. 2004); Rule 73.01. The trial court's judgment modifying maintenance is reviewed for an abuse of discretion. Lee v. Gornbein, 124 S.W.3d 52, 56 (Mo. App. W.D. 2004).

         Discussion

         I.Motion to ...


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