In re the Marriage Of: Stacey P. Cornella And Frank A. Cornella.Stacey P. Cornella

• Decision Date: 22 February 2011
• Docket Number: No. SD 30316.,SD 30316.
• Citation: 335 S.W.3d 545
• Parties: In re the MARRIAGE OF: Stacey P. CORNELLA and Frank A. Cornella.Stacey P. Cornella, Petitioner–Respondent,v.Frank A. Cornella, Respondent–Appellant.
• Court: Missouri Court of Appeals

335 S.W.3d 545

In re the MARRIAGE OF: Stacey P. CORNELLA and Frank A. Cornella.Stacey P. Cornella, Petitioner–Respondent,

v.Frank A. Cornella, Respondent–Appellant.

No. SD 30316.

Missouri Court of Appeals, Southern District, Division Two.

Feb. 22, 2011.Motion for Rehearing or Reconsideration

and Transfer Denied March 16, 2011.

Application for Transfer Denied

April 26, 2011.

John E. Price, Springfield, MO, for Appellant.C. Ronald Baird, Springfield, MO, for Respondent.JEFFREY W. BATES, Judge.

Frank Cornella (Husband) appeals from a judgment denying his motion to terminate maintenance to Stacey Cornella (Wife) and awarding her attorney's fees. See § 452.370; § 452.355.1.¹ Presenting seven points for decision, Husband challenges the court's rulings on the maintenance and attorney's fees issues. We affirm.

I. Standard of Review

In this court-tried case, our review is governed by Rule 84.13(d). In re Marriage of Moyers, 272 S.W.3d 500, 502 (Mo.App.2008). We must 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. Id.; In re Marriage of Dolence, 231 S.W.3d 331, 333 (Mo.App.2007). In assessing the sufficiency of the evidence, we examine the evidence and the reasonable inferences derived therefrom in the light most favorable to the judgment. In re McIntire, 33 S.W.3d 565, 568 (Mo.App.2000). It is not this Court's function to retry the case. Souci v. Souci, 284 S.W.3d 749, 753 (Mo.App.2009). “This is because credibility of witnesses and the weight to be given their testimony is a matter for the trial court, which is free to believe none, part, or all of the testimony of any witness.” In re Marriage of Colley, 984 S.W.2d 163, 166 (Mo.App.1998). On appeal, we defer to the trial court's credibility determination. Souci, 284 S.W.3d at 753. “An appellate court exercises extreme caution in considering whether a judgment should be set aside on the ground that it is against the weight of the evidence and will do so only upon a firm belief that the judgment was wrong.” Simpson v. Strong, 234 S.W.3d 567, 578 (Mo.App.2007). The phrase “weight of the evidence” means its weight in probative value, rather than the quantity or amount of evidence. Nix v. Nix, 862 S.W.2d 948, 951 (Mo.App.1993). The weight of the evidence is not determined by mathematics, but depends on its effect in inducing belief. Id.

Within the confines of the law and the evidence, the trial court has sound discretion in determining issues concerning maintenance and attorney's fees. In re Marriage of Baker, 986 S.W.2d 950, 954 (Mo.App.1999). On these matters, this Court reviews for abuse of discretion. Id. “An abuse of discretion occurs only if the decree is so arbitrary or unreasonable that it indicates indifference and lack of proper judicial consideration.” In re Marriage of Woodson, 92 S.W.3d 780, 785 (Mo. banc 2003). In addition, “[a]ll fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.” Rule 73.01(c). With the foregoing principles in mind, and focusing as we must on the evidence most favorable to the judgment, the following facts were adduced at trial.

II. Factual and Procedural History

Husband and Wife married in May 1993 and separated in November 2000. They have two children: Nolan, born in April 1996; and Rosemary, born in March 1999 (hereinafter referred to individually by their given names and collectively as the children). After the parties' separation, Wife filed a petition for dissolution of marriage. The matter was tried, and a judgment (hereinafter referred to as the original judgment) was entered on March 6, 2003. The judgment required Husband to pay Wife maintenance in the sum of $4,874 per month. The maintenance award was modifiable. Husband also was required to maintain a $100,000 life insurance policy on his life, irrevocably designating Wife as a beneficiary during any period in which he is required to pay maintenance to her. The parties were awarded joint legal and physical custody of the children. The court prepared its own parenting plan which approximately gave Wife 75% and Husband 25% of the parenting time. Husband was ordered to pay child support of $1,770 per month. The original judgment became final, and no appeal was taken by either party.

In April 2006, Husband filed a motion to modify the original judgment. He asked the court to change the parenting plan so as to give Husband more parenting time. Wife filed an answer to the motion which was not properly verified.² Her answer requested attorney's fees for defending against the requested modification. In December 2006, Husband filed a motion to strike paragraphs 2, 5 and 8 of Wife's answer on the ground that these paragraphs contained statements that were: (1) not sufficient defenses; (2) immaterial and scandalous; (3) not clearly meeting the substance of the averments sought to be denied by Wife; (4) improper attempts to plead affirmative defenses; and (5) frivolous and extraneous. The motion, which did not raise the issue of improper verification, was denied. The court appointed attorney Kevin Easley to serve as guardian ad litem (GAL) for the children. Discovery commenced and continued over the course of approximately one year.

In August 2007, Husband filed an amended motion to modify the original judgment. The amended motion contained three counts: Counts I and II proposed that Husband and Wife each receive 50% of the parenting time. Husband's alternative proposed parenting plans would have required the children to spend every other week during the school year at Husband's house. Count III sought to terminate Husband's obligation to pay Wife maintenance. Wife filed an answer to the amended motion, requesting that the court deny the relief sought by Husband and award her attorney's fees and costs necessary to defend the motion. The parties continued with written discovery and depositions during 2007 and 2008.

In early January 2009, the parties and the GAL deposed the children's counselor, Dr. Michael McGreevy (Dr. McGreevy). Husband had expressed concern that Wife was alienating the children from him. Dr. McGreevy testified, however, that after having “been involved with this case for some time now, the person that alienates their children from the father is the father.” Dr. McGreevy also testified that Wife was trying to implement the changes he recommended and to act in the children's best interests. Later that month, at the GAL's request, the court ordered a counseling schedule for the parties with Dr. McGreevy. Husband failed to comply with that order.

Husband became aware of Dr. McGreevy's concerns that Husband had been alienating the children. That either occurred during Dr. McGreevy's January 2009 deposition or “one meeting prior to that” in the fall of 2008. In preparation for the pretrial conference scheduled in mid-May 2009, the parties negotiated the issues under Counts I and II of Husband's amended motion to modify concerning custody and visitation. To document these negotiations, Wife prepared a draft of a stipulation to modify the parenting plan which was signed by the GAL, Wife and her attorney.

In May 2009, a pretrial conference was held a few days before the date the modification proceeding was set for trial. At the pretrial conference, after Wife's counsel outlined for the court the difficulties in this case, Husband suddenly withdrew Counts I and II of his amended motion, without any prior notice to Wife. The parties stipulated that the issues of costs, attorney's fees, and GAL fees relating to Counts I and II would be addressed at trial, as well as the remaining issues concerning maintenance raised by Count III. The trial was rescheduled.

The motion to modify was tried in October 2009. Husband testified that he dismissed Counts I and II of his amended motion in the “best interest of the children” after discussing the issue with the GAL on the morning of the pretrial conference. With respect to Count III, Husband's amended motion alleged, inter alia, that: (1) Wife's financial condition had improved substantially; (2) Husband's financial ability to pay had decreased; and (3) Wife had unreasonably increased her monthly expenses. During Husband's testimony, he also abandoned these three alleged grounds terminating Wife's maintenance. The only remaining allegation from Count III was that Wife had not made good faith efforts to seek employment or become self-supporting. Husband asserted that this alleged conduct alone constituted a change of circumstances so substantial and continuing as to warrant termination of his maintenance obligation. The following is a summary of the relevant evidence on that issue.

The original judgment was entered in 2003. Prior to that time, Wife received a bachelor's degree from the University of Mississippi in 1985 and obtained a teaching certificate in Mississippi in 1986. Wife never taught or obtained a teaching license in Missouri. Wife had not been employed since 1996, which was the year Nolan was born. Wife testified that she stopped working and became a “stay-at-home mom” in April 1996 pursuant to an agreement between her and Husband. According to Wife, she and Husband agreed that Wife would remain in the home with the children through their high school years. Wife's testimony about the agreement was not refuted by Husband, who provided no testimony or other evidence on that subject at all during the trial.

After entry of the original judgment, the children developed emotional issues that necessitated counseling. Some of those counseling sessions were conducted by Dr. McGreevy, whose deposition was admitted in evidence. Nolan first began seeing Dr. McGreevy following poor performance at school. Both Nolan and Rosemary experienced ongoing anxiety and stress due to their parents' constant fighting,...