Bowers v. Scherbring

Stephan, L,

dissenting.

I respectfully dissent. Based upon my review of the record, I cannot conclude that the trial court abused its discretion in determining that Bowers failed to meet her burden of proving a material change in her circumstances which would warrant modification of the original alimony award.

Bowers filed the application to modify on September 24, 1996, less than 4 months after entry of the decree on June 3. In her application, Bowers alleged that her circumstances had changed in that she “was unexpectedly laid off from her job as part of a reduction in force on approximately August 15, 1996.” She did not allege any inability to work due to deterioration of her health. Although this had become her contention by the time of the modification hearing on April 20, 1998, she testified that she was “asked to leave” her job in August 1996 but did not state that the request was prompted by either a reduction in force or performance deficiencies related to her health.

Bowers testified that subsequent to the decree, her health changed for the worse in that she developed problems with memory and “brain functioning.” As the majority notes, Bowers sought medical care for similar problems beginning in 1994. A medical record dated September 27,1995, indicates that Bowers had reported intermittent problems with memory retention and concentration over a period of 2 years. Another medical record dated April 8, 1997, reflects that Bowers had reported “continual neurocognitive deficits” since 1994.

*603I disagree with the majority’s conclusion that “it was not contemplated by the parties [at the time of the dissolution] that Bowers’ illness would prevent her from working as a medical technologist.” The record reflects that on May 11, 1994, Bowers resigned her position as a medical technologist at Midlands Community Hospital effective June 4 of that year, stating that she wished to assist her son with his modeling career in New York over the summer months. A Mayo Clinic record dated April 23, 1996, includes a medical history reflecting that Bowers reported becoming ill during a 1994 trip to New York City with her son and that she continued “to feel unwell” over the following year. This record further reflects that Bowers “worked in Missouri as a medical technologist for 2-1/2 months from November 1995, but is not working now.” The only other evidence of Bowers’ employment during the period between her resignation from her medical technologist position at Midlands Community Hospital in 1994 and her commencement of work in a similar position at Independence Regional Hospital “a few days prior to the divorce” was a job at Younkers which she held for approximately 3 weeks. In the report of his psychological evaluation of Bowers in November 1997, under the heading “Interview Information,” Grandy recorded:

Ms. Bowers stated that she was previous [sic] diagnosed with problems in the areas of short-term memory and thought sequencing by a neuropsychologist. She indicated that these problems were the result of encephalopathy caused by high blood serum levels of iron, lead and copper. She presented a lengthy work history in medical technology, but reported difficulties maintaining full-time employment since 1994. She reportedly left six or seven positions during the past four years due to mistakes and inability to learn.

This evidence contradicts Bowers’ testimony that she had no reason to doubt her ability to perform the medical technologist position at Independence Regional Hospital when she accepted it. The trial court was in the best position to assess Bowers’ credibility on this point and could have quite reasonably inferred from the evidence that Bowers suffered from health problems which prevented her from holding regular employment as a *604medical technologist for approximately 2 years prior to the 1996 dissolution decree and that therefore, Bowers failed to prove a material change in circumstances which would warrant modification of the alimony award.

For these reasons, I agree with the Court of Appeals that the district court did not abuse its discretion in denying the modification sought by Bowers. I would affirm.

Hendry, C J., joins in this dissent.