Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of St. Louis County 2105FC-09706-03
Honorable Sandra Farragut-Hemphill.
M. CLAYTON III, PRESIDIND JUDGE.
Paul Hughes ("Husband") appeals the trial
court's judgment dismissing and denying his motion to
modify a maintenance obligation to Jillisa Colleen Hughes
("Wife")- We affirm in part and reverse in part.
and Wife were married on June 20, 1998. After approximately
seven years of marriage, Husband petitioned the court to
dissolve the marriage and, on June 30, 2006, the parties were
divorced, pursuant to a dissolution judgment entered by the
Circuit Court of St. Louis County. There were no children
born of the marriage.
facilitate and effectuate their divorce, Husband and Wife
entered into a Marital Settlement and Separation Agreement
("MSA") which, among other things, set forth the
terms of maintenance to be awarded to Wife. The MSA and its
terms were approved and incorporated into the trial
court's "Dissolution Decree." Together, the
Dissolution Decree and the MSA embody the "Dissolution
to the MSA, Husband was ordered, inter alia, to pay
Wife $2, 500.00 per month in maintenance. In addition,
Husband was also ordered to pay Wife $2, 000.00 every quarter
in maintenance. In relevant part, the MSA stated the
7. MAINTENANCE OR ALIMONY
a. Husband shall pay to Wife maintenance in the following
(1) Two Thousand Five Hundred Dollars ($2, 500.00) each month
commencing July8, 2006[;]
(2) Two Thousand Dollars ($2, 000.00) every quarter beginning
on October 1, 2006[;]
(3) An amount equal to the monthly payment due under U.S.
Bank Loan [ ] ("Car Loan"), which is secured by the
automobile awarded to Wife hereunder, and which may be paid
directly to U.S. Bank, until the loan is paid in full;
(4) An amount equal to Wife's COBRA premiums under her
current health insurance program until the resolution of
Wife's disability claim referred to in paragraph 7b. If
Wife's COBRA coverage terminates prior to Wife receiving
disability, Husband shall purchase a comparable health
insurance plan for Wife at his costs as additional
maintenance for Wife. Said obligation shall terminate upon
Wife's receipt of health insurance under her disability
claim. If Wife is denied disability after the exhaustion of
ali appeals, Wife is entitled to, this shall be deemed a
change in circumstances and either party may file a motion to
modify to seek a change of this order. However, Husband shall
continue to pay health insurance premiums until modified by
b. Wife agrees to hire the law firm of Stone, Leyton &
Gershman, P.C. ("SLG") to pursue her social
security disability claim under the terms of SLG's
standard contingent fee arrangement. Husband's
maintenance obligations hereunder shall be reduced,
dollar for dollar, by any monthly disability benefits awarded
to Wife. In addition, Wife agrees that any award of back pay
shall first be applied to retire the Car Loan, next to the
payment of health insurance premiums until depleted.
c. To secure his obligations hereunder, Husband will make
wife the beneficiary of his SEP IRA in the amount of $150,
000 until her death or remarriage.
d. Husband's maintenance obligations will terminate upon
Wife's death or remarriage.
14. The terms of this Agreement shall not be subjected to
modification or change regardless of the relative
circumstances of the parties, except as specifically
provided for in the Agreement.
previously stated, the trial court incorporated the MSA into
its Dissolution Decree. Regarding maintenance, the
Dissolution Decree ordered:
[Husband] is ordered to pay [Wife] per month the sum of: $2,
500.00 commencing July 8, 2006; $2, 000.00 every quarter
beginning October 1, 2006; plus additional sums pursuant to
the [MSA] marked Exhibit A (Not subject to
modification) (Subject to modification).
(strike-out in original).
in 2009, Husband filed a motion to modify the maintenance
terms set forth in the Dissolution Judgment. Husband and Wife
eventually entered into a consent modification judgment
("Prior Consent Modification"), which was approved
and incorporated by the trial court. Under its terms,
Husband's maintenance obligation was reduced and he was
ordered, inter alia, to pay Wife $1, 953.34 per
month. For all other purposes of this appeal, the Prior
Consent Modification furnished no other adjustments,
amendments, or modifications to the Dissolution Judgment. The
Prior Consent Modification provided no analysis on the
question of modifiability of the maintenance obligation.
2010, Wife began a romantic relationship with David Lewis
("Lewis"). In 2012, Wife moved into Lewis'
house in Chesterfield, where she has since continuously
resided. There is no dispute Wife and Lewis are currently,
and desire to remain, in a committed, romantic relationship,
yet there exists no evidence Wife and Lewis intend to marry.
in significant part upon Wife's cohabitation with Lewis,
Husband filed a second motion to modify ("Motion to
Modify") in May 2014. In response thereto, Wife filed a
motion for contempt ("Motion for Contempt"),
requesting the trial court to set aside the Prior Consent
Modification and order Husband to satisfy purported past due
maintenance obligations. In addition, Wife filed an answer
and motion to dismiss Husband's Motion to Modify
("Motion to Dismiss"), arguing, in part, that the
MSA prohibited any modification of the maintenance awarded in
the Dissolution Judgment. Neither party requested any
specific findings of fact and conclusions of law.
a bench trial on Husband and Wife's respective motions,
the trial court entered a judgment granting Wife's Motion
to Dismiss, denying Husband's Motion to Modify, and
denying Wife's Motion for Contempt. The trial court
focused its conclusion upon paragraph 14 of the MSA, finding:
The [MSA] clearly states that the "terms of this
Agreement shall not be subjected to modification or change,
regardless of the relative circumstances of the parties,
except as specifically provided for in the Agreement."
[Husband] has not offered any evidence or argued that his
Motion [to Modify] is based upon any condition
"specifically provided for" in the [MSA], and
accordingly his motion fails.
trial court's judgment does not contain any reference as
to the consequence of the Prior Consent Modification. Husband
raises three points on appeal. In his first point, Husband
argues the trial court erred in dismissing his Motion to
Modify upon finding that the maintenance award was not
modifiable. In Husband's second and third points
on appeal, he argues the trial court erred in finding
Wife's relationship and cohabitation with Lewis neither
terminated Husband's maintenance obligation nor
constituted a substantial and continuing change in
circumstances sufficient to warrant modification. Husband
asserts the trial court's finding was against the weight
of the evidence as well as not supported by substantial
Standard of Review
Court reviews a ruling on a motion to modify to determine
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. Kunce v.
Kimce, 459 S.W.3d 443, 446 (Mo. App. W.D. 2015); see
also Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc
1976). We view all evidence and reasonable inferences
therefrom in the light most favorable to the prevailing
party, and all -factual issues upon which the trial court
elected not to make specific findings of fact are considered
to have been found in accordance with the trial court's
judgment. Swartz v. Johnson, 192 S.W.3d 752, 754
(Mo. App. W.D. 2006); see Rule
73.01(c). Further, we will defer to the trial court
even if the evidence could support a different conclusion.
Butts v. Butts, 906 S.W.2d 859, 861 (Mo.App. S.D.
Mod if lability of Maintenance Award
first point on appeal, Husband contends the trial court erred
in dismissing his Motion to Modify upon finding that the
maintenance award was not modifiable.
The Type of Maintenance Awarded by the Trial Court
threshold matter, the parties agree that the trial court
awarded "separation agreement decretal maintenance,
" authorized by section 452.325 RSMo 2000,
1.... the parties may enter into a written separation
agreement containing provisions for the maintenance of ...