Bryant v. Bryant

• Decision Date: 19 July 2011
• Docket Number: No. ED 94773.,ED 94773.
• Citation: 351 S.W.3d 681
• Parties: Joann Leah BRYANT, Respondent/Cross–Appellant, v. Robert Julius BRYANT, Appellant.
• Court: Missouri Court of Appeals

351 S.W.3d 681

Joann Leah BRYANT, Respondent/Cross–Appellant,

v.Robert Julius BRYANT, Appellant.

No. ED 94773.

Missouri Court of Appeals, Eastern District, Division Two.

July 19, 2011.

Supreme Court Denied Aug. 29, 2011.

Dec. 6, 2011.

Application for Transfer Denied

Terry J. Flanagan, St. Louis, MO, for appellant.

Lawrence G. Gillespie, Clayton, MO, for respondent/cross-appellant.

GEORGE W. DRAPER III, Judge.

In this consolidated appeal, Robert Bryant (hereinafter, "Husband") appeals from the trial court's judgment entered on his motion to modify his maintenance obligation to Joann Bryant (hereinafter, "Wife"). Husband raises six points on appeal challenging, inter alia, the trial court's expansion of this Court's mandate on remand and whether the trial court properly ordered him to pay a portion of Wife's attorney's fees. Wife cross-appeals, arguing the trial court erroneously reduced the amount of maintenance Husband should pay because he did not demonstrate a substantial change in circumstances to justify the reduction. We affirm.

This Court has exhaustively chronicled the protracted litigation that has entangled these parties, resulting in three previous appeals. See Bryant v. Bryant, 103 S.W.3d 803 (Mo.App. E.D.2003) (hereinafter, "Bryant I "); Bryant v. Bryant, 218 S.W.3d 565 (Mo.App. E.D.2007) (hereinafter, "Bryant II "); and Bryant v. Bryant, 268 S.W.3d 449 (Mo.App. E.D.2008) (hereinafter, "Bryant III "). We will draw liberally from those opinions for this recitation of the facts and an outline of the procedural history.

The parties' marriage was dissolved on November 26, 2001. The pertinent issues to this appeal from the parties' dissolution judgment are maintenance, custody of the two minor children, and child support. The trial court ordered Husband to pay Wife $2,000 per month in maintenance. The trial court awarded Wife and Husband joint legal custody, with Wife having sole physical custody of two minor children, and ordered Husband to pay Wife child support in the amount of $1,001 per month for the two minor children and $685 per month for one child. Husband was ordered to pay $3,000 in attorney's fees for Wife. Husband appealed from the original dissolution judgment, which this Court affirmed in Bryant I.

On June 10, 2004, Husband filed a motion to modify the terms of the dissolution judgment. Husband asserted he should be awarded custody of the remaining minor child, and accordingly, Wife should pay him child support. Husband also sought termination of his maintenance obligation because, inter alia, Wife had undertaken additional financial responsibility including the care, custody, and control of foster children. The trial court held a hearing on the matter, at which time Wife requested an award of $12,000 in attorney's fees.

The trial court determined Husband's monthly gross income to be $12,100 with approximately $10,658 in monthly expenses. The trial court found Wife's monthly gross income was at least $4,060 per month, including $1,100 per month from her foster care contract, which consisted of two different payments: (1) $150 per week or $650 per month for agreeing to provide emergency foster care placement; and (2) an additional per diem payment that varied depending on the age and number of children in her care. The trial court found Wife's monthly expenses were approximately $3,250 per month. The trial court entered its judgment terminating Husband's maintenance obligation finding: (1) Husband's reasonable expenses exceeded his monthly income, and as such, Husband could not meet his reasonable needs and pay maintenance; and (2) Wife had sufficient financial resources and property with which to meet her reasonable needs. The trial court awarded Husband custody of the remaining minor child, ordered Wife to pay $363 per month in child support retroactive to July 1, 2004, and ordered each party to pay their respective attorney's fees.

Wife appealed the modification judgment, challenging the trial court's findings with respect to her income from her foster care contract, the amount of rent she received from a roommate, the child support calculation in light of these other issues, and the failure of the trial court to award her attorney's fees. Our Court affirmed in part, and reversed and remanded in part. See Bryant II . We considered Wife's monthly gross income to be $4,060 since this was the amount listed on the Form 14. However, we considered that amount "for purposes of appeal only" because had the trial court included all sources of income presented by Wife, that amount would be $4,800. After determining the trial court erred by including the per diem foster care payments Wife received for children actually in her care, we reversed and remanded the case for further proceedings. We instructed the trial court to reexamine whether it should terminate Husband's maintenance obligation in light of the reduction in Wife's financial resources, which necessitated the recalculation of Wife's child support obligation. The trial court was ordered to reconsider the issue of attorney's fees because it was premised upon an incorrect assessment of Wife's financial resources. Finally, the trial court was directed to resolve the discrepancy between the Form 14 and its previous judgment when determining Wife's monthly gross income.

On remand, the trial court received no additional evidence and found Wife's monthly gross income was approximately $3,680, which included $650 per month for providing emergency foster care placement services. After recalculating Wife's income, the trial court reaffirmed its termination of Husband's maintenance obligation and denied Wife's request for attorney's fees.

Wife appealed and this Court reversed and remanded the cause a second time. See Bryant III. We found there was no evidence in the record to support the trial court's determination that Wife received $650 per month for providing emergency foster care placement services. Rather, Wife's testimony revealed she received $150 per month for agreeing to provide these services one week per month. Hence, the remand included instructions for the trial court to receive additional evidence on the amount of money Wife received for emergency foster care placement services, any income she derived from her roommate, and to reexamine the attorney's fee issue for the same reasons set forth in Bryant II.

The trial court held a hearing on remand, which is the subject of the instant appeal. Wife and Husband both produced copious financial documentation and testimony with respect to maintenance and ostensibly, the parties' respective ability to pay attorney's fees. The trial court determined Wife's monthly gross income in 2005 was $3,200 and her monthly expenses were $4,125. The trial court reexamined Husband's monthly gross income in 2005 and determined it was $19,975 per month, with his reasonable expenses totaling $6,760 per month. The trial court indicated it would use these figures to determine whether Wife had a need for maintenance and whether Husband had the ability to pay maintenance. The trial court found Wife could not meet her reasonable needs without maintenance while Husband could meet his reasonable needs and still pay Wife maintenance.

The trial court ordered Husband to pay Wife $1,250 per month maintenance retroactive to the date of the modification judgment, which was October 1, 2005. A new Form 14 was prepared. Wife was ordered to pay $358 per month to Husband for child support, retroactive to July 1, 2004, the date Husband filed the motion to modify. Finally, the trial court found Wife incurred reasonable attorney's fees since Husband filed his motion to modify in the amount of $58,300 and did not have the income or resources to pay her fees. The trial court ordered Husband to pay $50,000 toward those fees. Husband now appeals, raising six points of error, and Wife cross-appeals, raising one point of error.

Three of Husband's points allege the trial court exceeded the scope of this Court's mandate in Bryant III and disregarded the law of the case on remand. We will address these points first for the sake of clarity. In his first point, Husband argues the trial court erred in finding Wife's monthly expenses totaled $4,125 when the trial court found Wife's monthly expenses were $3,250 in 2005. Husband claims the only dispute regarding Wife's expenses was the contribution made by Wife's roommate. Thus, Husband claims the trial court exceeded the scope of the mandate by entering a revised finding, which was also against the weight of the evidence.

An appellate court's mandate defines the scope of the trial court's authority on remand. Guidry v. Charter Communications, Inc., 308 S.W.3d 765, 768 (Mo.App. E.D.2010). "The mandate serves the purpose of communicating the judgment to the lower court, and the opinion, which is a part thereof, serves an interpretive function." Pope v. Ray, 298 S.W.3d 53, 57 (Mo.App. W.D.2009) (quoting Durwood v. Dubinsky, 361 S.W.2d 779, 783 (Mo.1962) ). The mandate is not to be read and applied in a vacuum. Fischer v. Brancato, 174 S.W.3d 82, 86 (Mo.App. E.D.2005). When determining its authority on remand, the trial court should be guided by the mandate, but also by the opinion and result contemplated by the appellate court. Id.

"There are two types of remands: (1) a general remand, which does not provide specific direction and leaves all issues open to consideration in the new trial; and (2) a remand with directions, which requires the trial court to enter a judgment in conformity with the mandate." Guidry, 308 S.W.3d at 768. If the mandate has left specific instructions for the trial court, "it is duty-bound to render a judgment that strictly conforms to the mandate" and it lacks the authority to "modify, alter, amend or otherwise depart from those directions." Pope, 298 S.W.3d at 57. Any trial court proceeding that is contrary to the mandate's directions is considered unauthorized rendering the...