Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of St. Louis County Hon. John R.
S. VAN AMBURG, JUDGE.
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.
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.
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
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
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
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.
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."
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).
I.Motion to ...