Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of St. Louis County 2103FC-06941-01
Honorable Robert M. Heggie
Page, Presiding Judge.
Wagner ("Veronica") appeals the modification
court's judgment granting, in part, Ulrich Wagner's
("Ulrich") motion to modify his maintenance
Finding no error, we affirm.
about May 28, 2004, the Circuit Court of St. Louis County
dissolved the forty-year marriage between Ulrich and
Veronica, pursuant to a consent judgment ("Dissolution
Judgment"). At the time of the entry of the Dissolution
Judgment, Veronica was 63 years old, and Ulrich was 64 years
old. Both parties had been retired for several years, and
there remained no un-emancipated children.
Dissolution Judgment provided, inter alia, that
Ulrich and Veronica would continue to jointly own, as
tenants-in-common, a business entity designated as Wagner
Enterprises, LLC ("Wagner Enterprises"). Wagner
Enterprises held and was responsible for leasing a large
piece of business rental property located in St. Louis
County. The parties agreed to equally divide any income
derived from Wagner Enterprises after expenses. At the time
the Dissolution Judgment was entered, each party received
approximately $5, 384 in pre-tax income per month from Wagner
addition to the Wagner Enterprises income, Veronica was also
earning $274 per month in Social Security retirement
benefits, for a monthly income of approximately $5,
was also earning an additional $1, 105 per month in Social
Security retirement benefits, and his post-tax monthly income
was approximately $6, 526.
the Dissolution Judgment, without calculating each
party's reasonable monthly expenses,  ordered Ulrich to pay
Veronica the sum of $791 per month as and for modifiable
maintenance. Ulrich was also ordered to pay the cost of
Veronica's supplemental healthcare insurance, estimated
to cost approximately $150 per month.
eleven years after the entry of the Dissolution Judgment,
Ulrich filed a motion to modify ("Motion to
Modify") his maintenance obligation. Ulrich's Motion
to Modify averred that a substantial and continuing change of
circumstances had transpired since the entry of the
Dissolution Judgment which made his maintenance obligations
unreasonable. Specifically, Ulrich argued, inter
alia, Veronica could now satisfy her reasonably monthly
needs without contribution from Ulrich, and Ulrich could no
longer afford the monthly price of Veronica's
supplemental healthcare insurance.
an extensive and expensive period of discovery,
Motion to Modify proceeded to trial in April 2016. In August
2016, the modification court entered is judgment
("Modification Judgment") terminating Ulrich's
maintenance obligation, but denying Ulrich's request to
terminate his obligation to pay Veronica's supplemental
Modification Judgment extensively detailed the financial
circumstances of the parties. Veronica's post-tax monthly
income had increased to $6, 396 per month as a result of
additional income she received from Wagner Enterprises,
Social Security, and a small pension. Similarly, the
modification court found Ulrich's post-tax monthly income
had increased to $8, 764 per month, as a result of additional
income he also received from Wagner Enterprises and Social
the modification court determined that the reasonable monthly
expenses of Ulrich and Veronica amounted to $6, 380 and $6,
386, respectively. Finding that Veronica could satisfy her
monthly reasonable needs without contribution from Ulrich,
the Modification Judgment terminated Ulrich's maintenance
obligation. Finally, the motion court ordered Veronica to pay
$7, 000 of Ulrich's attorney's fees.
contends, in two separate points on appeal, the modification
court erred in entering the Modification Judgment. In her
first point on appeal, Veronica avers the modification court
erred in finding a change in circumstance sufficient to
modify the Dissolution Judgment, in that Veronica's
increased-income was "foreseeable" at the time the
Dissolution Judgment was entered.
Veronica argues the modification court erred in denying her
request for attorney's fees and ordering her to pay $7,
000 of Ulrich's attorney's fees.
I-Substantial and Continuing Changed Circumstances
first point maintains that a substantial and continuing
change in circumstance did not occur because Veronica's
increased income from Wagner Enterprises was foreseeable at
the time the Dissolution Judgment was entered. Specifically,
Veronica argues the increased-income she receives
from Wagner Enterprises was foreseeable at the time of
dissolution and, thereby, cannot form the basis for a change
in circumstances. We disagree.
court-tried action to modify a maintenance award, we conduct
our review in accordance with the standard enunciated in
Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
Lindo, 517 S.W.3d at 562. "[T]his court is to
affirm the trial court's judgment unless it is not
supported by substantial evidence, is against the weight of
the evidence, or erroneously declares or applies the
law." Morgan v. Morgan, 497 S.W.3d 359, 363
(Mo. App. E.D. 2016).
great deference to the modification court's greater
opportunity to adjudge the credibility of witnesses and the
weight given opinion evidence. Hopkins v. Hopkins,
449 S.W.3d 793, 797 (Mo. App. W.D. 2014). "This court
accepts as true the evidence and inferences favorable to the
trial court's judgment." Barr v. Barr, 922
S.W.2d 419, 420 (Mo. App. W.D. 1996).
modifiable maintenance provisions of a dissolution decree are
subject to Section 452.370, which permits a modification only
"'upon a showing of changed circumstances so
substantial and continuing as to make the terms
unreasonable.'" Lindo v. Higginbotham, 517
S.W.3d 558, 562 (Mo. App. E.D. 2016) (quoting Fowler v.
Fowler, 21 S.W.3d 1, 4 (Mo. App. E.D. 2000)); see
also Section 452.370.1. This statutory standard for
modification is designed to be "strict" so as to
discourage and prevent recurrent and insubstantial motions
for modification. Laffey v. Laffey, 72 S.W.3d 143,
147 (Mo. App. W.D. 2002). Accordingly, the moving party bears
the burden of establishing a substantial and continuing
change with detailed evidence, which renders the original
award unreasonable. Sprouse v. Sprouse, 969 S.W.2d
836, 838 (Mo. App. W.D. 1998).
consequence of this "strict" statutory standard set
forth by our Legislature, not every change in circumstances
is sufficient to satisfy this substantial burden. For
instance, although "a decrease in the income of the
spouse paying maintenance or an increase in the income of the
spouse receiving maintenance are both relevant facts for the
court to consider, neither alone requires the court to modify
the amount of maintenance previously ordered."
Rustemeyer v. Rustemeyer, 148 S.W.3d 867, 870 (Mo.
App. E.D. 2004).
in determining whether a "substantial change" has
occurred, our trial courts are instructed to consider
all the financial resources of both parties,
Swartz v. Johnson, 192 S.W.3d 752, 755 (Mo. App.
W.D. 2006), which includes a "wide range of
circumstances" and is not limited to those factors
expressly enumerated in Section 452.370, Schneithorst v.
Schneithorst, 473 S.W.3d 239, 252-53 (Mo. App. E.D.
2015). See also Rustemeyer, 148 S.W.3d at 870-71
("The ultimate issue is whether these ...