Court of Appeals of Missouri, Eastern District, Third Division
STEVEN H. SEROT, by Next Friend DEBRA SEROT, Respondent,
NANCY L. SEROT, Appellant.
from the Circuit Court of St. Louis County Honorable Margaret
M. GAERTNER, JR. P.J.
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.
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
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.
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.
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.
support, the trial court found Steven's earning potential
as of 2014 was $317, 721.00, 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.
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. 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.
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.
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.
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.
motions to dismiss and for summary judgment, Nancy sought
dismissal under Rule 67.03,  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 ...