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Docket Number

No. 42461.

Attorney(S)

Chester A. Love, Daniel P. Card, Clayton, for appellant. Stephen H. Ringkamp, St. Louis, for respondent.

Judges

CRIST, Presiding Judge.

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Smart Summary

Case Summary: In re the Marriage of Carol Bick Hagnauer

Factual and Procedural Background

This opinion arises from respondent father's motion to modify a prior maintenance award to appellant mother due to changed circumstances. The trial court, on December 6, 1979, reduced the monthly maintenance award from $1,500.00 to $1,050.00. The appeal challenges that reduction.

The parties' marriage was dissolved on August 25, 1976, with mother awarded general custody of the two children. The modification motion was heard on November 9, 1979. The record admitted a deposition of father taken April 6, 1979, an income and expense statement (dated July 18, 1979), U.S. tax returns for 1976–1978, a letter from father's former employer (Lustour Corporation) regarding his termination, and stipulations concerning child support payments and remarriage status.

Relevant factual findings admitted into evidence include: father (age 56 at the time of the motion) had been employed continuously by Lustour Corporation for 25 years but was discharged on July 25, 1978; at discharge his gross salary was the same as at dissolution ($44,000.00); at the time of dissolution his total income from stock dividends and salary was $80,000.00, but by April 6, 1979 his total income had been reduced to $48,000.00 per year. Father testified (by deposition) that he was then unemployed, did not expect to be employed in the predictable future, and did not expect his income to increase in 1979. One month after his termination he was diagnosed with prostate cancer and underwent surgery on October 31, 1978; as of April 6, 1979 he remained under a doctor's care and faced further treatment/check-ups. The parties stipulated that father had paid $300.00 per month for child support in May through November 1979, but during those months had failed to pay any monies to mother. Neither party had remarried.

Legal Issues Presented

Whether there has been a change in circumstances so substantial and continuing as to render the terms of the decree unreasonable and therefore justify modification of the maintenance award under Section 452.370, RSMo. 1975 Supp.
Whether the trial court abused its discretion in finding that the evidence supported modification of the maintenance award.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976)	Standard of appellate review: affirm trial court unless no substantial evidence supports it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law.	The court invoked Murphy to frame the limited scope of appellate review and to explain that it must sustain the trial court's judgment unless one of the enumerated errors exists.
Kirk v. Kirk, 598 S.W.2d 153 (Mo.App. 1980)	Referenced alongside Murphy to describe appellate review standards (cited at the same point as Murphy).	Used to support the appellate standard that the court must sustain the trial court's judgment absent the specified defects; also cited in the court's concluding affirmation that there was no abuse of discretion.
Van Luvan v. Van Luvan, 577 S.W.2d 156 (Mo.App. 1979)	Principle that modification of a dissolution decree will be ordered only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable (cited with Section 452.370).	Applied to explain the statutory and case-law requirement that a modification must be based on substantial and continuing changed circumstances.
LoPiccolo v. LoPiccolo, 581 S.W.2d 421 (Mo.App. 1979)	Cited for the proposition that appellate courts review trial court modifications for abuse of discretion.	Invoked in support of the conclusion that the trial court's reduction of maintenance did not constitute an abuse of discretion.

Court's Reasoning and Analysis

The court began by stating the applicable appellate standard (Murphy v. Carron and Kirk v. Kirk): it must affirm the trial court unless the judgment lacks substantial evidentiary support, is against the weight of the evidence, or involves an erroneous declaration or application of law. The court also stated the legal threshold for modifying a dissolution decree: under Section 452.370, RSMo. 1975 Supp., and as explained in Van Luvan, modification is permissible only upon a showing of changed circumstances so substantial and continuing as to make the decree unreasonable.

Applying those principles, the court reviewed the trial record. The deposition and documentary evidence established several factual changes since the decree:

Father's long-term employment ended: he had been continuously employed by the same employer for 25 years but was discharged on July 25, 1978.
Reduction in income: total income that had been $80,000.00 at the time of dissolution was reduced to $48,000.00 per year as of April 6, 1979; father's gross salary at discharge was $44,000.00.
Medical condition: father was diagnosed with prostate cancer one month after termination, underwent surgery on October 31, 1978, remained under a doctor's care as of April 6, 1979, and faced further treatment; father expressed uncertainty about his ability to retain employment because of his health.
Mother's increased income: mother's income increased from nothing at the time of the decree to $450.00 per month.

The court emphasized that the question whether the disability was continuous and whether father was unable to secure employment was for the trial court to decide. Although father did not testify at trial, the court held that the deposition and other evidence were sufficient to support the trial court's findings. The court noted that father's efforts to find work were made but that job availability was problematical given his age and medical history.

The trial court could reasonably find a substantial and continuing change in circumstances based on three specific findings it could make from the evidence: (1) father's loss of longtime employment reducing his income; (2) the prostate malignancy and surgery constituting a substantial and continuing disability; and (3) mother's income increase to $450.00 per month. Given those permissible factual conclusions, the appellate court concluded there was no abuse of discretion in reducing the maintenance award.

Holding and Implications

Judgment affirmed.

Implications:

The direct, immediate effect is that the trial court's reduction of monthly maintenance from $1,500.00 to $1,050.00 is upheld.
The appellate court found sufficient evidence to support the trial court's factual findings that justified modification under Section 452.370 — specifically, reduced income due to job loss, a medically documented disability, and an increase in the recipient's income.
The court treated the decision as an exercise of trial-court discretion and found no abuse of that discretion; the opinion does not announce any new rule of law or broader precedent beyond applying existing standards (Murphy, Van Luvan, LoPiccolo, Kirk).

Concurring judges: REINHARD and SNYDER, JJ., concurred.

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IN RE THE MARRIAGE OF CAROL BICK HAGNAUER, APPELLANT, ROBERT NELSON HAGNAUER, RESPONDENT.

CRIST, Presiding Judge.

Motion by respondent (hereinafter "father") to modify a maintenance award to appellant (hereinafter "mother") by reason of changed circumstances. On December 6, 1979, the trial court reduced the maintenance award of $1,500.00 per month to $1,050.00 per month. We affirm.

Appellate review in this case is limited by the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976); Kirk v. Kirk, 598 S.W.2d 153, 156 (Mo.App. 1980). We must sustain the decree or judgment of the trial court "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law or unless it erroneously applies the law." Murphy v. Carron, supra at 32. Modification of a decree of dissolution will be ordered only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable. Section 452.370, RSMo. 1975 Supp.; Van Luvan v. Van Luvan, 577 S.W.2d 156 (Mo.App. 1979).

The only issue on appeal is whether or not there has been a change in circumstances so substantial and continuing as to make the terms of the decree unreasonable. As we perceive our appellate function, we must sustain the findings and judgment of the trial court.

The marriage of the parties was dissolved on August 25, 1976. Mother was awarded general custody of their two children. The motion to modify was heard on November 9, 1979 at which time a deposition taken of father on April 6, 1979 was admitted into evidence. From that deposition, the following evidence was adduced: At the time of the motion to modify, father was 56 years of age and unmarried. After having been employed by Lustour Corporation, continuously for 25 years, father was discharged on July 25, 1978. He was earning the same gross salary of $44,000.00 at the time of his discharge as at the time of dissolution. Prior to his termination, father was a product manager and involved in sales. His total income from stock dividends and salary at the time of dissolution was $80,000.00. On April 6, 1979, his total income had been reduced to $48,000.00 per year. Father's testimony revealed he was not then employed, nor did he expect to be in the predictable future. He further indicated that he did not expect his income to increase in 1979 from its 1978 level. One month after his termination from Lustour Corporation, father was diagnosed as having cancer of the prostate. Father underwent surgery for cancer of the prostate on October 31, 1978. On April 6, 1979, he was still under a doctor's care and was obliged to return to the hospital in New York for a further check-up on a radium implant in the prostate. Father testified that he was unsure of his ability to keep a job, should he obtain one, because of the state of his health.

In addition to the deposition, to which the parties stipulated, an income and expense statement dated July 18, 1979 and U.S. Tax Returns for 1976, 1977 and 1978 were admitted into evidence. The parties stipulated that father had paid $300.00 child support per month in May through November of 1979, but failed to pay any monies to mother during those months. A letter dated August 4, 1978 from Lustour Corporation regarding the termination of father's employment was admitted. They stipulated that neither of them had remarried.

Although father did not testify at trial, the aforementioned evidence in the record is sufficient to support the trial court's findings as to the change in circumstances. The question of the continuous nature of the disability and father's inability to secure employment was for the trial court. Although father was uncertain as to his ability to retain a job if he found one, he had made an effort to find employment. Job availability was problematical considering his age and medical history.

The trial court could have found a substantial and continuing change of circumstances in that:

(1) Father's loss of his lifetime job reduced his income to $48,000.00 per year; and

(2) His surgery to remove a malignancy in the prostate constituted a substantial and continuing disability; and

(3) Mother's income increased from nothing at the time of decree of dissolution to $450.00 per month.

We find no abuse of the trial court's discretion. LoPiccolo v. LoPiccolo, 581 S.W.2d 421, 424 (Mo.App. 1979); Kirk v. Kirk, 598 S.W.2d 153, 156 (Mo.App. 1980).

Judgment affirmed.

REINHARD and SNYDER, JJ., concur.

IN RE MARRIAGE OF HAGNAUER