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Wagner v. Wagner

Court of Appeals of Missouri, Eastern District, Second Division

November 28, 2017

VERONICA WAGNER, Appellant,
v.
ULRICH T. WAGNER, Respondent.

         Appeal from the Circuit Court of St. Louis County 2103FC-06941-01 Honorable Robert M. Heggie

          Lisa P Page, Presiding Judge.

         Veronica Wagner ("Veronica") appeals the modification court's judgment granting, in part, Ulrich Wagner's ("Ulrich") motion to modify his maintenance obligation.[1] Finding no error, we affirm.

         BACKGROUND

         A. Dissolution Judgment

         On or 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.

         The 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 Enterprises.

         In 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, 658.[2]Ulrich was also earning an additional $1, 105 per month in Social Security retirement benefits, and his post-tax monthly income was approximately $6, 526.

         Furthermore, the Dissolution Judgment, without calculating each party's reasonable monthly expenses, [3] 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.

         B. Modification Proceedings

         Almost 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.

         After an extensive and expensive period of discovery, [4] Ulrich's 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 healthcare insurance.[5]

         The 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 Security.

         Additionally, 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.

         This appeal follows.

         DISCUSSION

         Veronica 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.

         Second, 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.

         Point I-Substantial and Continuing Changed Circumstances

         Veronica's 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.

         Standard of Review

         In a 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).

         We give 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).

         Analysis

         The 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).

         As a 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).

         Rather, 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 ...


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