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Serot v. Serot

Court of Appeals of Missouri, Eastern District, Third Division

October 17, 2017

STEVEN H. SEROT, by Next Friend DEBRA SEROT, Respondent,
v.
NANCY L. SEROT, Appellant.

         Appeal from the Circuit Court of St. Louis County Honorable Margaret T. Donnelly.

          GARY M. GAERTNER, JR. P.J.

         Introduction

         Nancy L. Serot (Nancy) appeals from the trial court's Judgment granting the motion to modify maintenance filed by Steven H. Serot (Steven) through his Next Friend Debra Serot (Debra). In her three points on appeal, Nancy argues the trial court erred in denying her motions to dismiss and for summary judgment for Steven's failure to comply with the dissolution judgment, in granting the motion to modify because Steven failed to show a substantial and continuing change in circumstances, and in failing to award Nancy attorney's fees. We affirm.[1]

         Background

         The trial court dissolved Nancy and Steven's marriage in 2006. During the marriage, Steven was self-employed selling insurance through his company Steven Serot and Associates, and Nancy did not work outside of the home. At the time of the 2006 dissolution judgment Steven's annual adjusted gross income was $647, 255.00. The dissolution judgment ordered Steven to pay Nancy $15, 000 per month in modifiable maintenance.

         In March of 2014, Steven filed a motion to modify maintenance and a motion to appoint Next Friend. His motion to modify alleged a substantial and continuing change in circumstances, in that he suffered a stroke in November of 2013, rendering him incapacitated. Due to the stroke, he was unable to work selling insurance, thus eliminating or reducing his earning capacity and earned income. He further alleged that Nancy was able to provide for her reasonable needs. For his motion to appoint Next Friend, Steven asserted that Debra was Steven's attorney-in-fact pursuant to a general durable power of attorney dated from December of 2013. The trial court appointed Debra as Steven's Next Friend.

         As relevant to this appeal, Nancy filed a motion to dismiss Steven's motion to modify, arguing that because Steven had willfully refused to comply with the maintenance order since March 15, 2014, he could not then move to modify the order. Nancy likewise filed a motion for summary judgment, asserting she was entitled to judgment as a matter of law on the same grounds set forth in the motion to dismiss. The trial court took both motions with the case. Throughout the pendency of the case, Nancy filed multiple garnishment applications and orders.

         After a trial, the trial court granted Steven's motion to modify maintenance, finding that there had been a substantial and continuing change in circumstances since the 2006 dissolution judgment, in that following Steven's 2013 hemorrhagic stroke he is permanently disabled and will never be able to work again. Steven's income had decreased since the 2006 dissolution judgment and he no longer had the same resources to meet his reasonable needs, while Nancy's income had increased and her reasonable expenses had decreased. Accordingly, the trial court reduced Steven's maintenance obligation from $15, 000 per month to $5, 000 per month, retroactive to March of 2014, when legal counsel for Nancy entered his appearance.

         For support, the trial court found Steven's earning potential as of 2014 was $317, 721.00, [2]which was a decrease from his former income of $647, 255.00 at the time of the prior maintenance order. The trial court noted that Steven had received in 2014 a one-time payout from his deferred compensation fund of $439, 859.00, but the court concluded that the deferred payout was not income derived from his commissions for 2014 and accordingly did not consider this one-time disbursement in Steven's income for the purpose of calculating maintenance. The trial court concluded that, after taxes, Steven's net monthly income was $25, 835.17, and his reasonable monthly expenses were $20, 531.00.

         Regarding Nancy, the trial court found that since the 2006 dissolution judgment, she had become self-employed as a part-time real-estate agent and had obtained a master's degree in biosecurity and disaster preparedness. However, the trial court also considered Nancy's reported health problems and found that while she was not disabled, she only had the ability to work 25 hours per week. While Nancy's reported annual income for 2014 was $4, 157, the court determined that in light of Nancy's job skills acquired since the 2006 dissolution, Nancy should be able to earn $18, 600.00 per year either as a part-time real-estate agent or in part-time security-system sales. Moreover, the court found that Nancy receives social security benefits, and that she can earn 3% interest income-without drawing from the principal-from bank accounts valued at $50, 039, a family trust valued at $250, 000, and IRAs valued at $940, 429.00. Using these figures, the trial court determined Nancy was able to earn a gross annual income of $67, 070.00.[3] The trial court concluded that, after taxes, Nancy's net monthly income was $4, 910.00, and her reasonable monthly expenses were $10, 383.00.

         As for Nancy's motions to dismiss and for summary judgment for failure to comply with the 2006 maintenance order, the trial court denied the motions after the trial. The trial court agreed that Steven had not made regular maintenance payments since his stroke in November of 2013, but it found that Steven no longer had the ability to make the maintenance payments because his income had decreased significantly through no fault of his own. Nevertheless, because Steven's failure to pay maintenance during the pendency of the case had required Nancy to file multiple garnishment orders, the trial court found it was reasonable for Steven to pay Nancy $4, 000 as and for attorney's fees expended for the garnishments. Other than the $4, 000 award, the trial court declined to award attorney's fees, finding the parties had the ability to pay their respective fees despite their income disparity. This appeal follows.

         Discussion

         Nancy raises three points on appeal challenging the trial court's judgment denying her motions to dismiss and for summary judgment, granting Steven's motion to modify, and granting only part of her attorney's fees. We address these three points in the order raised.

         Point I

         In her first point on appeal, Nancy argues the trial court erred in denying her motion to dismiss Steven's motion to modify and in denying her motion for summary judgment, because Steven had the ability to comply with the prior maintenance order during the pendency of the case but refused to do so. We disagree.

         In her motions to dismiss and for summary judgment, Nancy sought dismissal under Rule 67.03, [4] which allows a defendant to move for an involuntary dismissal of a civil case for the plaintiffs failure to comply with an order of the court. We review a trial court's decision to deny a motion to dismiss under Rule 67.03 for an abuse of discretion. Stine v. Stine, 401 S.W.3d 567, 570 (Mo. App. E.D. 2013). An abuse of discretion occurs when the trial court's order is clearly against the logic of the circumstances before the court, and is so arbitrary and capricious as to shock the sense of justice and indicate a lack of careful consideration. Staples v. Staples, 895 S.W.2d 265, 266 (Mo. App. E.D. 1995). As for Nancy's challenge on her motion for ...


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