Barden v. Barden

• Decision Date: 09 January 2018
• Docket Number: No. ED 105496,ED 105496
• Citation: 546 S.W.3d 582
• Parties: Theodore M. BARDEN, Respondent, v. Jill L. BARDEN Appellant.
• Court: Missouri Court of Appeals

546 S.W.3d 582

Theodore M. BARDEN, Respondent,

v.Jill L. BARDEN Appellant.

No. ED 105496

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: January 9, 2018

Motion for Rehearing and/or Transfer to Supreme Court Denied March 22, 2018

Application for Transfer Denied May 22, 2018

Jonathan D. Marks, Saint Louis, MO, for appellant.

Sylvia J. Pociask, St. Louis, MO, for respondent.

Opinion

Angela T. Quigless, J.

Jill L. Barden ("Wife") appeals from the judgment of the Circuit Court of St. Louis County modifying the dissolution decree dissolving her marriage to Theodore M. Barden ("Husband"). Wife asserts five points on appeal. Wife argues the trial court erred in modifying Husband's maintenance obligation as well as his child support obligation for Sophie and Stella, abating Husband's child support obligation for Emma, and awarding Husband the dependency tax exemption for Sophie.

Because the trial court exceeded the scope of this Court's mandate in Barden v. Barden , 492 S.W.3d 641 (Mo. App. E.D. 2016) when it abated Husband's child support obligation for Emma and awarded Husband the dependency tax exemption for Sophie, we reverse those portions of the trial court's judgment and remand those issues with specific instructions as set forth in this opinion. The trial court's judgment as to the modification of Husband's maintenance and child support obligations is affirmed.

Factual and Procedural Background

Because this is the third time this case has been before this Court, it is necessary we set forth the complete procedural history of the case as it is significant to the disposition of this appeal.

Husband and Wife have three children, Emma, Sophie, and Stella. Husband and Wife separated in February 2010, and their marriage was dissolved in November 2011. Pursuant to the judgment of dissolution of marriage, Husband was ordered to pay Wife child support in the amount of $1,383 per month for three children, and maintenance in the amount of $1,875 per month plus 35% of any gross commissions or bonuses Husband received through his employment. At the time of dissolution, Husband earned approximately $260,000 per year, including commissions and bonuses, and Wife was unemployed.

In 2012, Husband was terminated from his job. It took him about six month to find new full-time employment. His new job paid approximately $50,000 annually. As a result of the decrease in his income, Husband filed a motion to modify the dissolution decree. On November 6, 2013, the trial court held a modification hearing, and subsequently entered a modified judgment, which, in relevant part, terminated Husband's obligation to pay maintenance to Wife, reduced his child support obligation to $861 per month, terminated his duty to assist in paying Emma's college expenses, and awarded Wife the right to claim all three children as exemptions for federal and state income tax purposes in 2013 and succeeding years.

Wife appealed the modified judgment, arguing the trial court erred in terminating Husband's maintenance obligation, and terminating Husband's duty to assist in paying Emma's college expenses. On appeal, this Court reversed the trial court's judgment as to both issues because the court relied on Wife's post-dissolution conduct, and the nature of the relationship between Husband and Emma. Barden v. Barden , 463 S.W.3d 799, 802 (Mo. App. E.D. 2015) (" Barden I "). On remand, this Court specifically instructed the trial court to reconsider (1) Husband's motion to modify maintenance, pursuant to the statutory standard set forth in Section 452.370,¹ and (2) Husband's obligation to pay for Emma's college expenses in accordance with the factors set forth in Forde v. Forde , 190 S.W.3d 521 (Mo. App. E.D. 2006). Barden I , 463 S.W.3d at 805–07. The judgment was affirmed in all other respects.

Thereafter, Wife filed a motion to reopen evidence. The trial court allowed limited discovery regarding Husband's income. Husband's tax return revealed he earned approximately $150,000 in 2014. Subpoenaed records from Husband's employer also revealed Husband earned nearly $239,000 between November 6, 2013 and August 5, 2015. However, the trial court denied Wife's motion to reopen evidence and entered its amended judgment in September 2015. The trial court found Husband had an annual salary of $50,000 and imputed an annual salary of $24,000 to Wife.² The trial court ordered Husband pay Wife maintenance in the amount of $500 per month and child support in the amount of $720 per month. The trial court made the maintenance and child support orders retroactive to March 1, 2013. The trial court also terminated Husband's duty to assist in paying Emma's college expenses.

Wife again appealed, arguing the trial court erred by using stale evidence to determine Husband's maintenance and child support obligations.³ This Court reversed the trial court's modification of Husband's maintenance obligation, and, on remand, specifically instructed the trial court to consider the parties' current financial information when determining the appropriate amount of maintenance to award Wife, in accordance with the remand in Barden I . Barden v. Barden , 492 S.W.3d 641, 644 (Mo. App. E.D. 2016) (" Barden II "). This Court also noted the trial court's calculation of Husband's child support obligation may need to be adjusted upon considering evidence of the parties' current finances. Id. at 644 n.3.

Following the remand, the trial court entered a pre-trial order allowing discovery with respect to changes in the parties' financial resources since November 2013. Thereafter, Husband filed a Motion to Abate Child Support, arguing, inter alia , his child support for Emma should be abated retroactive to August 2014 because Emma failed to provide her college transcripts and class schedules to Husband, and Emma lived with Husband during the summer of 2016 and spent no overnights with Wife.

On November 18, 2016, the trial court held a hearing on this Court's remand as well as Husband's motion to abate. In its judgment, the trial court, in relevant part, reduced Husband's maintenance obligation to $875 per month, retroactive to March 1, 2013, and reduced Husband's child support obligation for Sophie and Stella to $935 per month, effective July 1, 2016. The trial court also abated child support for Emma between September 1, 2014 and May 31, 2016, as well as between September 1, 2012 and February 28, 2013, and ordered Wife to pay Husband $1,000. The trial court further gave Husband the right to claim Sophie as an exemption for federal and state income tax purposes in 2016 and succeeding years. Wife appeals.

Points Relied On

Wife asserts five points on appeal. In Point I, Wife argues the trial court erred in modifying maintenance Husband pays to Wife from $1,875 per month plus 35% of all commissions and bonuses earned to a flat $875 per month, retroactive to March 1, 2013, because said modification violates Section 452.370.1. In Point II, Wife argues the trial court erred in abating child support between September 1, 2012 and February 28, 2013 for Emma, and entering judgment in favor of Husband and against Wife in the amount of $1,000 because said abatement violates Section 452.340.7. In Point III, the trial court erred in abating child support between September 1, 2014 and May 31, 2016 for Emma because said abatement violates Section 452.340.5. In Point IV, Wife argues the trial court erred in departing from the presumed child support amount and setting child support for Sophie and Stella at $935 per month, effective July 1, 2016, because said departure violates Section 452.340 and this Court's holding in Barden I . In Point V, Wife argues the trial court erred in awarding Husband the dependency tax exemption for Sophie beginning in tax year 2016 because said departure violates Section 452.340.

Standard of Review

As with any court-tried case, we review a trial court's judgment modifying a dissolution decree pursuant to Murphy v. Carron , 536 S.W.2d 30 (Mo. banc 1976). Schneithorst v. Schneithorst , 473 S.W.3d 239, 246 (Mo. App. E.D. 2015). Accordingly, we will affirm the trial court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. In re Marriage of Graham , 87 S.W.3d 898, 900 (Mo. App. E.D. 2002).

This Court gives great deference to the trial court's superior opportunity to adjudge the credibility of witnesses and the weight given their testimony. Hopkins v. Hopkins , 449 S.W.3d 793, 797 (Mo. App. W.D. 2014). We accept as true the evidence and inferences favorable to the trial court's judgment. Holtgrewe v. Holtgrewe , 231 S.W.3d 233, 235 (Mo. App. E.D. 2007).

Discussion

Point I—Modification of Maintenance

In Point I, Wife argues the trial court erred in modifying maintenance Husband pays to Wife from $1,875 per month plus 35% of all commissions and bonuses earned to a flat $875 per month, retroactive to March 1, 2013, because said modification violates Section 452.370.1. Specifically, Wife argues (1) Husband failed to prove a substantial and continuing change in circumstances because his present income is not significantly lower than his income at the time of the dissolution judgment; (2) Husband presently earns sufficient income to pay the maintenance ordered in the dissolution judgement; (3) Wife cannot meet her reasonable needs with a lesser amount of maintenance; and (4) the trial court cannot force Wife to deplete her share of Husband's 401(k) awarded to her in the dissolution judgment to give Husband a lower maintenance obligation.

Section 452.370 governs modification of maintenance. Pursuant to Section 452.370.1, in order to modify a maintenance support award, there must be a showing of changed circumstances so substantial and continuing as to make the terms of the current support award unreasonable. The trial court must consider all financial resources of both parties when determining whether a...