                                        In the
                        Missouri Court of Appeals
                                 Western District
TERRY ANNETTE HOPKINS,                       )
                                             )
              Respondent,                    )   WD77267
                                             )
v.                                           )   OPINION FILED:
                                             )   November 25, 2014
CHARLES DAVID HOPKINS,                       )
                                             )
               Appellant.                    )

              Appeal from the Circuit Court of Pettis County, Missouri
                         The Honorable Paul Beard II, Judge

Before Division Three: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge
                              and Gary D. Witt, Judge


      Charles David Hopkins ("Husband") appeals a trial court judgment denying his

motion to terminate his maintenance obligation to Terry Annette Hopkins ("Wife").

Husband argues that the trial court erred (1) by declining to terminate maintenance even

though it found that Wife and Robert Naylor ("Naylor") were in a permanent relationship;

(2) by failing to terminate maintenance even though Wife was assisting the four people

living with her with some of their minor needs; and (3) because the trial court's judgment

was against the weight of the evidence and not supported by substantial evidence.

      Finding no error in the trial court's judgment, we affirm.
                                    Factual and Procedural History1

         Husband and Wife were divorced on December 21, 1998. The divorce decree

ordered Husband to pay $1,000 in maintenance to Wife. On June 29, 2001, maintenance

was reduced to $489 a month following Husband's motion to terminate his maintenance

obligation.       On July 12, 2013, Husband filed a second motion to terminate his

maintenance obligation. Wife filed a counter motion to modify maintenance, seeking to

increase in maintenance to $800 a month.

         Wife lives with four other people in the house she received as part of the divorce

decree: her 30-year-old daughter, her 9-year-old grandson, her daughter's girlfriend, and

Naylor. Along with the maintenance payment from Husband, Wife receives $578 a

month in Social Security Disability payments. Her total monthly income is $1,067. Wife

does not work on account of her disability. She has $1,155 in monthly expenses, which

includes $104 a month that Wife pays toward her daughter's dental bill. Wife does not

contribute to Naylor's expenses. Naylor and the other three residents in Wife's home live

there rent free. The trial court concluded that at worst this resulted in some additional

electrical consumption paid by Wife. Wife's daughter's girlfriend and Naylor each pay

their share of Wife's water bill, cable bill, and cell phone bill.                           No other financial

contributions are made to the household expenses. In all other respects, the trial court

found that the residents in Wife's home provide for their own support.




         1
          "We accept as true the evidence and all inferences therefrom that are favorable to the trial court's judgment
and disregard all contrary evidence." Haynes v. Almuttar, 25 S.W.3d 667, 671 (Mo. App. W.D. 2000) (internal
citation omitted).

                                                          2
       Naylor has been living with Wife in the house for about six years. Each said that

they "guess" they are living as husband and wife, but the trial court found that their

relationship is more akin to roommates who have agreed to have sex. The two do not

share a bedroom, do not commingle their finances, share no bank accounts or credit card

accounts, and have no present intent to get married. The two had discussed marriage a

couple of times but Naylor does not believe in marriage. The trial court found that

cohabitation with Naylor "provides [Wife] emotional support but no financial support."

Other than Naylor's payment of his share of the water, cable and cell phone bills, Naylor

has not contributed financially to Wife. There was no evidence that Wife or Naylor have

provided for each other in their respective wills or named each other on any insurance

policies.

       Naylor works as a mechanic for a local business. Payroll records show that in 10

months in 2013, Naylor received $23,173.82 in net income. Naylor said he has monthly

expenses of $1,629.29, which includes roughly $400 in medical and prescription drug

costs. Naylor also has had recurring back problems that could affect his ability to work

in the future.

       Husband works as a maintenance man for a local company. Husband submitted

that he makes $2,000 a month in net income, his wife receives $1,891 a month in Social

Security Disability payments, and he has $4,404 in average monthly expenses. Husband

said he wanted to eliminate his maintenance obligation both to make repairs to his home

and to save money so he can retire.



                                           3
         Following a hearing, the trial court entered a judgment denying Husband's motion

to terminate his maintenance obligation and Wife's cross-motion seeking to increase

maintenance ("Judgment").2

         Husband appealed, alleging three points of error.

                                             Standard of Review

         "Our review of a ruling on a motion to modify maintenance is governed by

Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)." Almuttar, 25 S.W.3d at 671.

The trial court's judgment will be affirmed "unless it is not supported by substantial

evidence, it is against the weight of the evidence, or it erroneously declares or applies the

law." Id.        "We give deference to the trial court's greater opportunity to judge the

credibility of witnesses and the weight given opinion evidence." Id. The trial court "may

believe or disbelieve all, part, or none of the testimony of any witness." Butts v. Butts,

906 S.W.2d 859, 861 (Mo. App. S.D. 1995). "The trial court is given considerable

discretion as to the allowance and the amount of maintenance payments, and it is the

appellant's burden on appeal to demonstrate an abuse of that discretion." Almuttar, 25

S.W.3d at 671. "We will defer to the trial court even if the evidence could support a

different conclusion." Sprouse v. Sprouse, 969 S.W.2d 836, 838 (Mo. App. W.D. 1998).

                                                    Point One

         In his first point on appeal, Husband argues that the trial court erred in denying his

motion to terminate maintenance because Wife and Naylor are in a permanent

         2
           For reasons not explained by the record, the Judgment is titled "Judgment of Dissolution of Marriage."
Plainly, the Judgment does not dissolve the parties' marriage, but instead ruled on the parties' competing motions to
modify maintenance.

                                                          4
relationship requiring the termination of maintenance as a matter of law without regard to

the financial support Naylor actually provides Wife.

       "Section 452.370.1 authorizes a court to modify maintenance upon a showing of

changed circumstances so substantial and continuing as to make the terms of the original

decree unreasonable." Brooks v. Brooks, 957 S.W.2d 783, 786 (Mo. App. W.D. 1997).

Section 452.370.13 provides in pertinent part:

       In a proceeding for modification of any child support or maintenance
       judgment, the court, in determining whether or not a substantial change in
       circumstances has occurred, shall consider all financial resources of both
       parties, including the extent to which the reasonable expenses of either
       party are, or should be, shared by a spouse or other person with whom he or
       she cohabits . . . .

"As the party seeking modification, [Husband] bears the burden of proving the changed

circumstances." C.K. v. B.K., 325 S.W.3d 431, 434 (Mo. App. E.D. 2010).

       Here, the trial court's Judgment characterized Wife's relationship with Naylor as

"permanent," and acknowledged that the cohabitation relationship had "taken on the

permanence of marriage." The trial court concluded, however, that it was nonetheless

required by law to consider the economic implications of cohabitation before it could find

that a substantial change in circumstances had occurred warranting modification of

Husband's maintenance obligation. The trial court found although Wife "is cohabitating,

. . . the relationship lacks a commitment or agreement to support each other financially,

which is an obligation of marriage." The trial court expressly found that the cohabitation

provides Wife "no financial support." The trial court thus found that "[Wife] is in need of


       3
           All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.

                                                         5
maintenance and [Husband] continues to have the ability to pay maintenance." In effect,

the trial court found that Husband did not sustain his burden to establish a substantial

change in circumstances requiring the modification of his maintenance obligation.

       Husband argues that this conclusion was in error as a matter of law, and that once

the trial court found Wife and Naylor to be in a permanent relationship, it was bound to

terminate maintenance, irrespective of financial support received by Wife as a result of

the permanent relationship. Husband relies on Herzog v. Herzog, 761 S.W.2d 267 (Mo.

App. E.D. 1988), in support of this proposition. Herzog provides in pertinent part:

       Where the relationship has achieved a permanence sufficient for the trial
       court to conclude that it has become a substitute for marriage, equitable
       principles warrant a conclusion that the spouse has abandoned his or her
       rights to support from the prior marriage and is looking to the new
       relationship in that regard. Permanence may be found from either the time
       involved or the intentions of the persons involved. . . . Where a permanent
       relationship exists . . . the level of support obtained therefrom is, as with
       remarriage, irrelevant.

Id. at 268-69.

       Husband's reading of Herzog is mistaken.         To find a substantial change in

circumstances warranting modification of maintenance based on cohabitation, Herzog

requires the evidence to support the conclusion that the relationship is of a nature that it

substitutes as a marriage. Though Herzog acknowledges that evidence regarding the

amount of time parties have cohabited and their future intentions will be relevant to this

inquiry, Herzog does not hold that the extent of financial support provided is irrelevant to

this inquiry. In fact, Herzog directs that rules and principles of equity must be followed

to determine the rights and obligations of the parties, which in turn requires an evaluation


                                             6
of "the new relationship created by the spouse receiving maintenance to determine

whether equity justifies termination or modification of maintenance . . . ." Id. at 268.

Only where the evidence establishes that a cohabitation relationship substitutes as a

marriage does Herzog direct that the level of financial support becomes immaterial to the

decision to terminate maintenance.

       This construction of Herzog is verified by the result reached in that case. Herzog

declined to find a permanent relationship that was a substitute for marriage, and thus

declined to modify maintenance, even though the spouse receiving maintenance admitted

to cohabitating for a year with a man who earned a respectable wage but contributed

nothing financially to the household. 761 S.W.2d at 268-69. The Eastern District

pointed to the short duration of the relationship, to that fact that neither the wife nor

cohabitant viewed the relationship as permanent, to the fact that no evidence showed the

wife had incurred additional expenses due to the cohabitation or that she spent any of her

money on behalf of the cohabitant, and to undisputed evidence that the cohabitant did not

provide the wife with financial support. Id. at 269. Plainly, in addressing the threshold

question of whether cohabitation constituted a substantial change in circumstances

because the relationship substituted for marriage, Herzog relied on evidence involving the

financial support provided between the cohabitants.

       Our construction of Herzog is also verified by later decisions addressing whether

cohabitation warrants a modification of maintenance. In Lombardo v. Lombardo, 992

S.W.2d 919 (Mo. App. W.D. 1999), (the case cited and relied on by the trial court in its

Judgment), we held that "[r]ather than focusing solely on cohabitation itself, it seems the

                                            7
best way of formulating rules that [deal] with cohabitation, is to embrace the rule that the

economic implications of cohabitation for the spouse receiving maintenance must be

addressed before the maintenance award may be modified, suspended or terminated." Id.

at 923. "This approach still allows the trial court to 'evaluate the new relationship created

by the spouse receiving maintenance to determine whether equity justifies termination or

modification of maintenance on the basis of that changed condition.'"                                Id. (quoting

Herzog, 761 S.W.2d at 268).

         Later cases have similarly applied Herzog to find that cohabitation, in and of itself,

did not warrant a modification of maintenance.4

         Although the trial court characterized the relationship between Wife and Naylor as

"permanent," it also effectively found that the relationship was not a substitute for

marriage. The trial court found that "the relationship lacks a commitment or agreement

to support each other financially, which is an obligation of marriage." The trial court did

not misapply the law when, based on this finding, it held that Husband was not entitled to

terminate his maintenance obligation.




         4
           See Weston v. Weston, 882 S.W.2d 337 (Mo. App. S.D. 1994) (finding no permanent relationship despite
recipient and cohabitant living together for three years, sharing the same bed, having an exclusive sexual
relationship, and cohabitant paying some of the household expenses because cohabitant had no intention of marrying
recipient, recipient had not provided for cohabitant in her will, and neither the cohabitant nor the recipient made a
commitment to the other); Butts v. Butts, 906 S.W.2d 859 (Mo. App. S.D. 1995) (finding no permanent relationship
existed because even though recipient and cohabitant lived in same house for two to three years, had been sexually
intimate, and cohabitant made a commitment to recipient for rest of his life, the two never helped each other
financially except for sharing living expenses, did not commingle their funds, did not provide for each other in the
event of either's death, and no evidence was elicited regarding the recipient spouse's intentions to the relationship
with the cohabitant); C.K. v. B.K., 325 S.W.3d 431 (Mo. App. E.D. 2010) (finding permanent relationship not a
substitute for marriage under Herzog despite recipient and cohabitant having a child together and intending to
remain in the permanent relationship because the two did not hold themselves out as married, had no present intent
to get married, and did not commingle finances or hold any joint bank accounts or credit cards).

                                                         8
       Husband additionally argues that section 452.370.1 was amended after the

decision in Herzog, requiring evaluation not just of the actual contributions made by a

cohabitant, but also the amounts that "should be, shared by a spouse or other person with

whom he or she cohabits." Husband thus argues that even presuming the determination

of permanence permits exploration of financial support afforded between cohabiting

parties, the trial court erred in requiring proof of actual financial support. We disagree.

       The trial court found that the only potential cost being incurred by Wife

attributable to Naylor's (and other cohabitants') residing at her home that was not being

reimbursed was an increase in electrical consumption. The trial court also found that:

       [Wife] is deliberately sacrificing minor comforts that would be appropriate
       under a minimum standard of living to assist her four cohabitants with
       some of their minor needs. However, these offerings on her part do not
       merit a termination of the maintenance order. A person receiving
       maintenance may help others within reason without risking termination of
       the maintenance on the argument that the person paying maintenance is
       being forced to support others.

In addition, the trial court found that although Wife could charge rent, "there is no

obligation that a person receiving maintenance rent out the rooms of her/his house in

order to avoid termination of the maintenance." The trial court plainly did consider,

therefore, whether there were reasonable expenses that Wife's cohabitants "should" be

paying, and determined that there were none warranting modification of maintenance.

Husband does not challenge these findings. His argument that the trial court erroneously

failed to consider reasonable expenses that "should" be paid by a cohabitant is plainly

without merit.



                                              9
        The trial court did not abuse its discretion and did not erroneously determine or

apply the law by declining to terminate Husband's maintenance obligation.5

        Point one is denied.

                                                   Point Two

        In his second point on appeal, Husband argues that the trial court erred in denying

his motion to terminate maintenance even though it declared that Wife was assisting her

four cohabitants with some of their minor needs. Specifically, Husband argues that

termination of his maintenance obligation was required because Wife cannot use

maintenance to provide any support to her cohabitants.

        As stated above, Husband, as the party seeking modification of a maintenance

award, bears the burden to demonstrate changed circumstances "so substantial and

continuing as to make the terms of the original [maintenance] decree unreasonable."

Brooks, 957 S.W.2d at 786; section 452.370.1. "As a general rule, a substantial and

continuing change in circumstances is one that renders the obligor unable to pay

maintenance at the assigned rate or one that allows the recipient to meet his or her

reasonable needs with less maintenance." Lee v. Gornbein, 124 S.W.3d 52, 56 (Mo. App.

W.D. 2004).


        5
           We do acknowledge that the court in Lombardo suggested to the legislature that: "The effect of
cohabitation on a maintenance award is an area the legislature may choose to examine further. Without unduly
lengthening this opinion, suffice it to say that the General Assembly may do as several states have done and declare
cohabitation sufficient to bar receipt of future maintenance." 992 S.W.2d at 923. Consistent with this refrain, the
trial court in its Judgment called "upon the legislature to re-evaluate the state's maintenance laws to address the
current realities of family formation and define clearly when co-habitation should result in a termination of
maintenance and when it should not." Both Lombardo and the trial court recognize that such a decision is within the
province of the legislature and not the courts. Unless and until the legislature heeds these calls, we are bound to
apply the law as written, notwithstanding Husband's effort in this case to recast prior appellate determinations to
require termination of maintenance based solely on cohabitation.

                                                        10
       Husband argues that the trial court erred by ruling that Wife could use some of the

maintenance payment she receives each month to support the other people living in her

house. To support this argument, Husband cites Nichols v. Nichols, 14 S.W.3d 630, 636-

37 (Mo. App. E.D. 2000) (finding that expenses to support emancipated children or

grandchildren are not properly includable in determining maintenance) and Gerecke v.

Gerecke, 954 S.W.2d 665, 669 (Mo. App. S.D. 1997) (finding maintenance payments

must be limited to the needs of the party requesting support) (emphasis added).

Husband's reliance on these principles is misplaced because the rules outlined Nichols

and Gerecke apply when a trial court is deciding whether to order maintenance upon

dissolution of marriage, not when a trial court is deciding whether to terminate an

existing maintenance order.

       When an initial request for maintenance is made in a dissolution proceeding, a trial

court is required to weigh the factors outlined in section 452.335, which "speaks solely in

terms of whether the requesting party lacks sufficient property to meet 'his' reasonable

needs, and whether that party is able to support 'himself' through appropriate

employment." Nichols, 14 S.W.3d at 637. When a request for modification occurs, a

trial court is only required to consider whether there has been a change of circumstances

"so substantial and continuing as to make the terms of the original [maintenance] decree

unreasonable." Brooks, 957 S.W.2d at 786. "In determining the amount to award for

maintenance in a modification proceeding under section 452.370, the trial court may, but

is not required to, consider the factors found in section 452.335, just as if the trial court

was determining an original maintenance award." Id. As such, the trial court here was

                                             11
free, but not required, to consider whether any financial support given by Wife to the

other people living with her constituted such a substantial and continuing change as to

warrant Husband's current maintenance obligation unreasonable.

      The only direct evidence of Wife providing financial support to any of the people

living in her house was her acknowledgment that she pays $104 a month toward her

Daughter's dental bills. Beyond the dental payments, the court found only that Wife was

sacrificing her own minor comforts to "assist her four cohabitants with some of their

minor needs," and that Wife had no obligation to rent out rooms in her home to avoid

termination of maintenance. We cannot say that Wife's decision to assist her cohabitants

with some of their minor needs constituted such a substantial and continuing change of

circumstances that Husband's maintenance obligations should have been terminated.

      Point two is denied.

                                     Point Three

      In his third point on appeal, Husband argues that the trial court erred in denying

his motion to terminate maintenance because its ruling was against the weight of the

evidence and not supported by substantial evidence. (Emphasis added.) Specifically,

Husband argues that the trial court's ruling to deny termination of maintenance despite

finding a permanent relationship between Wife and Naylor, along with declining to find

that Naylor "should be" helping wife pay her reasonable expenses pursuant to section

452.370.1, was against the weight of the evidence and not supported by substantial

evidence.



                                          12
       We note at the outset that "'against-the-weight-of-the-evidence' challenges are not

the same as 'not-supported-by-substantial-evidence' challenges; hence, pursuant to Rule

84.04, these separate and distinct challenges should have been separated into two distinct

points relied on." Sauvain v. Acceptance Indem. Ins. Co., 437 S.W.3d 296, 299 n.1 (Mo.

App. W.D. 2014). "Generally, multifarious points preserve nothing for appellate review

and are ordinarily subject to dismissal." Id. (internal quotation omitted). Even though

Husband's point relied on is defective, we will review the point ex gratia.

       "A claim that there is no substantial evidence to support the judgment or that the

judgment is against the weight of the evidence necessarily involves review of the trial

court's factual determinations." Pearson v. Koster, 367 S.W.3d 36, 43 (Mo. banc 2012).

"A court will overturn a trial court's judgment under these fact-based standards of review

only when the court has a firm belief that the judgment is wrong." Id. "In reviewing

questions of fact, the appellate court defers to the trial court's assessment of the evidence

if any facts relevant to an issue are contested." Sauvain, 437 S.W.3d at 303.

       An appellant who brings an against-the-weight-of-the-evidence challenge must:

       (1) identify a challenged factual proposition necessary to sustain the
       judgment; (2) identify all of the favorable evidence supporting that
       position; (3) identify contrary evidence, subject to the trial court's
       credibility determinations, explicit or implicit; and (4) prove in light of the
       whole record that the supporting evidence, when considered along with the
       reasonable inferences drawn therefrom, is so lacking in probative value that
       the trier of fact could not reasonably believe the proposition.

Id. at 304. This challenge assumes the "existence of substantial evidence supporting a

proposition necessary to sustain a judgment, but, nevertheless, challenges the probative



                                             13
value of that evidence to induce belief in that proposition when viewed in the context of

the entirety of the evidence before the trier of fact." Id. (internal quotation omitted).

         Husband has not properly brought an against-the-weight-of-the-evidence

challenge because he has not identified the finding necessary to sustain the judgment.6

Husband only briefly identifies some of the favorable evidence that supports the trial

court's judgment and also does not show, in light of the whole record, that the trial court's

judgment was so lacking in probative value that it was unreasonable. Most of husband's

argument centers on evidence contrary to the trial court's judgment, ignoring that we

defer "to the trial court's assessment of the evidence if any facts relevant to an issue are

contested." Id. at 303. In any event, evidence was presented at trial that supported the

trial court's judgment. Naylor did not provide financial assistance to Wife, Wife did not

provide financial assistance to Naylor, Naylor was barely self-sufficient himself, and

Naylor suffered from physical ailments that could affect his long-term ability to work.

Naylor also had no intention of marrying Wife, the two did not commingle their funds,

and no evidence was elicited from Wife that revealed her intentions as to the permanence

of her relationship with Naylor.

         Husband's not-supported-by-substantial-evidence challenge suffers from similar

problems. An appellant who brings a not-supported-by-substantial-evidence challenge

must:




         6
           This finding is the factual proposition that Wife and Naylor were not in a permanent relationship sufficient
to show that Wife abandoned her right to maintenance and that Naylor did not contribute financially, or have the
financial resources to contribute financially, to Wife.

                                                          14
       (1) identify a challenged factual proposition necessary to sustain the
       judgment; (2) identify all of the favorable evidence supporting that
       position; and (3) demonstrate why that supporting evidence, when
       considered with the reasonable inferences drawn therefrom, is so lacking in
       probative value that the trier of fact could not reasonably believe the
       proposition.

Id. "Substantial evidence is that which, if true, has probative force upon the issues, and

from which the trier of fact[ ] can reasonably decide the case." Id. (internal quotation

omitted).

       Husband has not properly argued a not-supported-by-substantial-evidence

challenge because he only briefly mentions some of the favorable evidence supporting

the trial court's judgment and instead spends substantially all of his argument referencing

contrary evidence. "[A]ny citation to or reliance upon evidence and inferences contrary

to the judgment is irrelevant and immaterial to an appellant's point and argument

challenging a factual proposition necessary to sustain the judgment as being not

supported by substantial evidence." Id. (internal quotation omitted).

       While Husband has pointed to evidence that might have supported a conclusion

contrary to the trial court's judgment, the conclusion argued by Husband is not the only

conclusion that the trial court could have reached.      "Instead, accepting as true the

foregoing evidence and inferences from it that are favorable to the judgment, we

conclude the trial court's judgment is supported by substantial evidence and is not against

the great weight of the evidence." Id. at 306.

       Point three is denied.




                                            15
                                      Conclusion

      The trial court's judgment in affirmed.




                                         __________________________________
                                         Cynthia L. Martin, Judge


All concur.




                                           16
