On behalf of The Marks Law Firm, L.L.C. posted in Divorce, Maintenance, Child Support and Modification on Wednesday September 25, 2013
This week, the Eastern District of the Missouri Court of Appeals handed down its decision in Delsing v. Delsing, a very interesting motion to modify maintenance case involving professional golfer Jay Delsing.
Jay Delsing is a member of the PGA Tour. In 2007, he and his wife, Kathleen dissolved their marriage. According to the Judgment, the court ordered Jay to pay Kathleen maintenance in the amount of $12,000.00 per month and child support in the amount of $1,000.00 per month per child (they had four children together). At the time of the divorce, Jay listed his income as $40,000.00 per month.
In January, 2010, Jay filed a motion to modify maintenance and child support, alleging that his income as a tour player had significantly decreased over the prior three years – from the $500,000 at the time of the divorce to only $300,000, not including business and living expenses of almost $100,000. By consent, the parties agreed to reduce maintenance to $10,000.00 per month and fixed total child support at $3,000.00 per month (the oldest child became emancipated).
In November, 2010, Jay filed a second motion to modify maintenance and child support, alleging that health problems have prevented him from earning a living as a tour player. For those not familiar with pro golf, the main tour has only 125 full time players, and the large purses exist only on the main tour. The Champions tour is for players 50 and over, and the purses pale in comparison to the main tour. Finally, the Web.com tour (formerly the Nationwide tour) is the minor league system that allows players to compete for spots on the main tour. Its purses are smallest of all. Jay had done well on the main tour, but back problems that required surgery took him off the main tour, and it appears after the injury he can no longer seriously compete on either the Champions tour or the Web.com tour, as he has tried both but found little success. According to the evidence at trial, his net income totaled only $117,000, with $80,000 coming from disability and $40,000 from his PGA retirement. In essence, his total net monthly income did not even cover the current maintenance and child support.
Surprisingly, the trial court found no change in circumstances, citing no real change in income from 2011 to 2012. But the Eastern District reversed, finding that the proper measuring point was the income at the last modification – the 2009 income before all of the health problems caused the actual shift downward in income.
Because the trial court erred in its findings, the Eastern District remanded to the trial court to modify maintenance to a level that allows Jay to meet his own expenses as well as contribute to the financial needs of Kathleen. One would anticipate that maintenance will drop proportionately, i.e., the percentage of net income that maintenance occupied at the time of the Judgment will determine the actual amount of maintenance based on current income.
The Delsing case illustrates an important principle – no matter how wealthy an individual at the time of divorce, changes in income due to illness, disability or loss of employment will justify reducing the maintenance owed to a former spouse, even if that spouse has the same needs and the same lifestyle expectations. A skilled attorney would have helped at the time of dissolution by seeking a specific type of disability insurance, akin to a “key man” policy, that would protect both the spouse who becomes disabled as well as the spouse requiring maintenance.
If you have questions about modification of maintenance or child support, contact us – we can help.