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818 S.W.2d 735

Waggoner v. Waggoner

Missouri Court of Appeals

Decided November 14, 1991

Missouri Court of Appeals · decided 1991-11-14

Cited by 3 later decisions — most recently January 1994

3 state decisions

Key passage — most relied on by later courts

“A party who has met the burden of proof of changed circumstances, so substantial and continuing as to make the present support unreasonable shall have the support “determined in conformity with the criteria set forth in supreme court rule 88.01.” § 452.370.2. The mother made out a prima facie case of change of circumstances by showing that the existing child support award was less, by twenty percent or more, than the guideline given in Rule 88.01. That showing by the wife met her burden of proof on the issue of change of circumstances “so substantial and continuing” as to make the present award unreasonable. § 452.-371.1, .2. That element of the modification action ... proven, the statute directed that the child support element of the action “shall be determined” under Rule 88.01. § 452.370.1 [sic] (emphasis added). The effect of subsection 2 of § 452.-370 is that a party who has proven changed circumstances, is entitled to a new award of child support calculated according to the criteria of Rule 88.01 and Form 14, unless the court determines by the substantive factors that govern such adjudications that the amount calculated is unjust or inappropriate. An adjudication of a child support award, whether by the calculus of Form 14 or by the adjudication of a lesser amount, is a substantive matter. It is evident from the statutory sources of Rule 88.01, as well as from the function of adjudicative efficiency the rule addresses, that its terms are mandatory. An adjudication of an”

quoted by 1 later decision, including Kieninger v. Kieninger

“The trial court erred in failing to order respondent to pay child support pursuant to appellant’s motion to modify child support in that appellant met his burden showing a substantial change in circumstances pursuant to § 452.30.1 MO Rev Stat 1986, Supp.1991, which requires only a showing that “If the application of the guidelines and criteria set forth in Supreme Court Rule 88.01 to the financial circumstances of the parties would result in a change of child support from the existing amount by twenty percent or more, then a prima facie showing has been made of a change in circumstances so substantial and continuing as to make the present terms unreasonable” and because once a prima facie showing is made no other change in circumstances is required if a 20% change in the amount of child support to be ordered is shown.”

quoted by 1 later decision, including Kieninger v. Kieninger

Relies on Stanley v. Stanley · Etling v. Etling

Good law ✅— No negative treatment on recordhow we know

Decided 1991-11-14

View the full empirical analysis of this case →

MAUS, Judge.

¶1On May 30, 1990, Pamela Ann Waggoner and Jay Eldon Waggoner, Jr.’s marriage was dissolved. Pamela was awarded custody of daughter Susan and son Paul. Jay was awarded custody of the eldest daughter Martha. The trial court ordered Jay to pay Pamela $225 per month, per child, for the two children in her custody. On July 30, 1990, Jay filed a motion to modify the decree so as to vest the primary custody of all the children with him or “alternatively, for a reduction in Respondent/Movant’s child support to an appropriate amount considering his income and resources.”

¶2The following is a brief outline of the case. As stated, the dissolution decree was entered on May 30, 1990. That decree awarded Pamela custody of Susan and Paul, and awarded custody of Martha to Jay. Jay was ordered to pay Pamela $225 per month, per child, for the two children in her custody. There was no appeal from that decree.

¶3On July 24, 1990, Pamela filed a motion for contempt against Jay, seeking enforcement of custody of Susan and visitation with Martha, as ordered in the original decree. On July 30, 1990, appellant filed *737his answer to the motion for contempt. He also filed a counter motion for contempt and the motion to modify which is under consideration. On the same day, he filed a motion for change of venue and a change of judge. The motion for the change of venue was denied. The motion for the change of judge was granted.

¶4On September 12, 1990, the motions for contempt and the motion to modify were heard. The court entered its decree on September 25, 1990. In that decree, the court overruled all pending motions, “except that the Decree of Dissolution of Marriage dated May 30, 1990, is modified with respect to visitation and temporary custody....” The court then, in great detail, specified the times and arrangements for visitation and temporary custody. Jay appeals the denial of the change of venue and the denial of his motion to modify the child support.

Jay’s first point is “[t]he court erred in denying appellant Jay Eldon Waggoner, Jr.’s, motion for change of venue in that appellant was entitled to a change of venue as a matter of right as a motion to modify is a civil case triable by jury upon questions of fact.” (Emphasis added.)
Applicable Rule 51.03 does provide:
“(a) A change of venue shall be ordered in a civil action triable by jury which is pending in a county having seventy-five thousand or less inhabitants upon the filing of a written application therefor_” (Emphasis added.)

¶5Nevertheless, the first point patently has no merit. Motions to modify have historically been tried to the court. Jay cites no authority to the contrary. There is none. Indeed, a relevant statute, in part, provides:

“All proceedings authorized in chapter 452 to be maintained in circuit court shall be heard by circuit judges, except that said proceedings may be heard by an associate circuit judge_” § 452.420.

¶6The first point is denied.

¶7Jay’s second point is “[t]he court erred in not modifying the child support obligation of Jay Eldon Waggoner, Jr., in that:

“(A) All of the evidence adduced by the parties clearly supported a finding of continuing and substantial change in the financial circumstances of the parties.
******
(B) The application of the guidelines and criteria set forth in Supreme Court Rule 88.01 would result in a change of child support from the existing amount by more than twenty per cent and, therefore, Jay Eldon Waggoner, Jr., met the burden of proof required by subsection (1) of Section 452.370 RSMo and established a prima facie case, and Jay Eldon Waggoner, Jr.’s child support should have been determined and modified by the court so as to comply with Supreme Court Rule 88.01.”
The applicable statute, in part, provides: “[T]he provisions of any decree respecting maintenance or support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable....” § 452.370.1.

¶8The statute is “intended to provide for substantial and continuing changed circumstances since the decree”, Etling v. Etling, 747 S.W.2d 285, 287 (Mo.App.1988), so that the “circumstances existing at the time of the modification hearing make the original decree unreasonable.” In re Marriage of Stanley, 793 S.W.2d 487, 488 (Mo.App.1990). “Where there has been a short period of time between the original decree and the time of filing the motion to modify the allegations must show an extraordinary change in circumstances.” Etling at 287.

¶9To support his inadequately-stated second point, Jay primarily relies upon his testimony concerning his net income after taxes in 1990. That testimony was: “This year it’s about — My estimates are I’m making about $600 a month.” He said that he was “going in the hole” by taking $200 per week from his businesses. He said “[l]ast year it was — On my tax return, it was around $7,000.”

¶10In relying on this testimony, Jay obviously overlooks the fact that “this year”, in which he was making only $600 per month, includes the period both before and after *738the decree of dissolution. That testimony scarcely establishes a continuous change of circumstances. He also fails to recognize the impact of that testimony. He said last year (1989) his income was around $7,000. This year (1990), his net income after taxes was $600 per month which is $7,200 for the year. He has established that his income has increased.

¶11He also supports his second point by citing Pamela’s rental income. This income results from marital property awarded to her. The fact such income would accrue to Pamela was before the court when it entered the dissolution decree. The fact it did is no basis for modifying that decree.

¶12By part “(B)” of his second point, Jay argues the motion court erred because it failed to apply the guidelines or make the determination required by Rule 88.01. He bases this argument on the figures he presented — the inadequacy of which has already been discussed — and Pamela’s rental income. In denying Jay’s motion, the motion court expressly found “there have been neither substantial and continuing changes of circumstances nor such facts and circumstances unknown to the Court at the time of the entry of said Decree so as to make the Decree unreasonable or unfair in regard to the primary custody and support of the minor children.” This is tantamount to a repetition of the finding in the dissolution decree that “[a]fter considering all relevant factors, the Court finds that the amount of presumed child support calculated pursuant to Missouri Civil Procedure Form 14 is unjust or inappropriate.” Jay’s second point is denied. The judgment is affirmed.

SHRUM, P.J., and MONTGOMERY, J., concur.
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