Cullen v. Bernstein

• Docket Number: ED 111233
• Decision Date: 03 September 2024
• Citation: Cullen v. Bernstein, 694 S.W.3d 494 (Mo. App. 2024)
• Parties: Carol A. CULLEN, Respondent/Cross-Appellant, v. Robert H. BERNSTEIN, Appellant.
• Court: Missouri Court of Appeals

694 S.W.3d 494

Carol A. CULLEN, Respondent/Cross-Appellant,

v.Robert H. BERNSTEIN, Appellant.

No. ED 111233

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: May 28, 2024

Motion for Rehearing and/or Transfer to Supreme Court Denied July 3, 2024

Application for Transfer Denied September 3, 2024

Appeal from the Circuit Court of St. Louis County, 08SL-DR05180-02, Honorable Heather R. Cunningham, Judge

FOR APPELLANT: Michael L. Schechter, Ajla Alunovic, 8000 Maryland Avenue, Suite 950, Clayton, Missouri 63105.

FOR RESPONDENT: Richard J. Eisen, 120 S. Central Avenue, Suite 150, St. Louis, Missouri 63105.

Before Lisa P. Page, P.J., Gary M. Gaertner, Jr., J., and Angela T. Quigless, J.

Lisa P. Page, Presiding Judge

Robert H. Bernstein(Bernstein) appeals and Carol A. Cullen(Cullen) cross appeals from the St. Louis County Circuit Court’s judgment of modification, which reduced Bernstein’s maintenance obligation from $10,000 to $5,000 per month and ordered Cullen to pay $25,000 of his attorney fees.We reverse.

Background

Bernstein and Cullen were married in November 1982.In March 2010, the court entered a consent judgment of dissolution.Relevant to this appeal, Bernstein agreed to pay Cullen $10,000 per month in modifiable maintenance.In March 2020, Bernstein filed a motion to modify the judgment of dissolution, asking the court to terminate or in the alternative substantially reduce his maintenance obligation.Specifically, Bernstein pled that the following substantial and continuing changes rendered the original terms of maintenance unreasonable:

(a) That [Cullen] has failed to make a good-faith effort to seek and/or maintain employment so as to achieve financial independence within a reasonable time after the date of the parties’ dissolution of marriage;

(b) That since the entry of the Judgment, [Cullen] has been under a continuing duty to exert reasonable efforts to attain self sufficiency and has failed to carry out her aforesaid duty;

(c) That, upon information and belief, since the entry of the Judgment, [Cullen’s] assets have substantially increased and the amount of income that [Cullen] does receive, or should receive, from said assets has substantially increased;

(d) That [Cullen] has been cohabitating with a male individual for several years, not her husband, wherein [Cullen’s] relationship has achieved sufficient permanence to indicate it is actually a substitute for marriage and, therefore, [Cullen’s] right to receive support from [Bernstein] has been abandoned; and

(e) That, upon information and belief, the male individual with whom [Cullen] cohabits shares [Cullen’s] expenses and/or [Cullen] contributes to the male individual's expenses.

Bernstein’s petition made no claims regarding a substantial and continuing change in his circumstances such that his payment of maintenance was unreasonable.In fact, Bernstein’s statements of income and expense show that his net monthly income had nearly doubled from an average of $30,632 at the time of the dissolution in 2010 to $59,374 at trial in April 2022.

On August 2, 2022, the court issued its findings of fact, conclusions of law, and judgment of modification.Both parties filed motions to amend the judgment.On November 20, 2022, the court issued an amended judgment reducing Bernstein’s maintenance obligation to $5,000 per month and ordering Cullen to pay $25,000 of Bernstein’s attorney fees.This appeal follows.

Discussion

Bernstein raises three points on appeal and Cullen asserts six points on cross appeal.In his first point on appeal, Bernstein claims the court erred in refusing to terminate his maintenance obligation to Cullen because she was able to meet her reasonable needs with her net income and was no longer in need of maintenance.In his second point, Bernstein argues the court erred in refusing to terminate his maintenance obligation because based upon the indicia of permanency, Cullen’s current relationship was a sufficient substitute for marriage resulting in an abandonment of her right to receive maintenance.In his third and final point on appeal, Bernstein argues the court erroneously awarded him only $25,000 in attorney fees, and the amount should have been increased.

Cullen filed a cross appeal consisting of six points.In points one through four of her cross appeal, Cullen argues that the court misapplied the law in its judgment modifying maintenance.In point one she challenges that finding that Cullen is required to sell the home awarded to her in the dissolution to reduce her monthly expenses and obtain additional monthly income.In point two, Cullen alleges the court improperly imputed income from Cullen’s assets which were awarded to her in the original dissolution.Point three on cross appeal alleges error in the court’s determination that income imputed to Cullen regarding her potential employability supported a finding of substantial and continuing change of circumstances when income had previously been imputed at the time of dissolution.In point four, Cullen argues the court improperly determined her relationship constituted a substitute for marriage.Point five alleges this finding was also against the weight of the evidence.In her sixth and final point on cross appeal, Cullen claims the court abused its discretion in ordering her to pay $25,000 of Bernstein’s attorney fees because the decision was not supported by evidence that Cullen caused unnecessary delay and expense in her defense against Bernstein’s motion to modify maintenance.

We agree with Cullen and grant cross appeal points one, two, three, four, and six.We decline to review point five because point four is dispositive of the same issue.We decline to review Bernstein’s first point on appeal that Cullen’s maintenance should be terminated because in granting Cullen’s points on cross appeal we find the court erred as a matter of law in even reducing, much less terminating, his maintenance obligation because he did not meet the statutory burden of proof to show a substantial and continuing change in Cullen’s financial circumstances.We deny his points two and three.

Upon summary of these points on appeal and cross appeal, we respectfully note Bernstein has not requested the relief the dissent would grant him because he claims the trial court erred by refusing to terminate his maintenance obligation.While we agree that Cullen failed to meet her affirmative duty to make a good faith effort to become employed and self-supporting, which could result in modification, this issue is not raised in any of the nine points on appeal.Thus, a remand to modify maintenance for this reason is improper.As Cullen’s affirmative duty is related to her third point on cross appeal regarding imputation of her income, we will address the dissent’s concerns in that point.

Standard of Review

[1] Our review of the court’s judgment regarding modification of maintenance is governed by Murphy v. Carron,536 S.W.2d 30, 32(Mo. banc 1976).Hopkins v. Hopkins,449 S.W.3d 793, 797(Mo. App. W.D.2014).Thus, we will affirm the judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or the court erroneously applies or declares the law.Id.

[2–4] All but points four and six of Cullen’s cross appeal allege that the court misapplied the law.When considering whether the court misapplied the law, we review the court’s legal conclusions and application of law to the facts de novo.McLeod v. McLeod,681 S.W.3d 215, 228-29(Mo. App. W.D.2023).With respect to questions of law, we conduct an independent review, without deference to the court’s conclusions.T.J.W. v. K.T.,614 S.W.3d 637, 640(Mo. App. S.D.2020).A misapplication of the law constitutes reversible error if it materially affects the merits of the action such that we have a firm belief the judgment is wrong.McLeod,681 S.W.3d at 229.

Analysis

[5, 6] Pursuant to Section 452.370.1 RSMo (2016),¹ maintenance may be modified only "upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable."Section 452.370 imposes a strict standard for modification to discourage persistent or insubstantial motions to modify.Eaton v. Bell,127 S.W.3d 690, 694(Mo. App. W.D.2004).The party moving to modify maintenance bears the burden of proving a substantial and continuing change of circumstance which renders the original award unreasonable.Lindo v. Higginbotham,517 S.W.3d 558, 562(Mo. App. E.D.2016)."To warrant modification, the change in circumstances must involve a departure from prior known conditions, including those known at the time of dissolution."Shanks v. Shanks,117 S.W.3d 718, 721(Mo. App. E.D.2003)(internal citation omitted).Thus, the change must be unknown and unforeseeable at the time of the original award of maintenance the spouse seeks to modify.Rustemeyer v. Rustemeyer,148 S.W.3d 867, 871(Mo. App. E.D.2004);see alsoWagner v. Wagner,542 S.W.3d 334, 339(Mo. App. E.D.2017).These legal principles guide our review of the court’s legal conclusion that Bernstein "met his burden of proving that a change in [Cullen’s] circumstances so substantial and continuing, has occurred since the parties’ dissolution of marriage" to merit reducing his maintenance obligation.

A Cautionary Tale and Best Practices

Before we reach the merits of any points raised in this appeal, we must address allegations of error by both parties that the court’s judgment contains contradictory findings.At oral argument, even as counsel for Bernstein complained the court’s judgment impermissibly "split the baby" producing an "absurd result" because the evidence did not support a maintenance award of $5,000 per month, he conceded the "majority" of the voluminous judgment was taken directly from his proposed findings of fact and conclusions of law.²This concession provides a reasonable explanation for the problematic findings and why the court may have...