Lombardo v. Lombardo

• Decision Date: 28 October 2003
• Docket Number: No. WD 61623.,No. WD 61572.,WD 61572.,WD 61623.
• Citation: 120 S.W.3d 232
• Parties: Sandra L. LOMBARDO, Appellant-Respondent, v. Richard J. LOMBARDO, Respondent-Appellant.
• Court: Missouri Court of Appeals

120 S.W.3d 232

Sandra L. LOMBARDO, Appellant-Respondent, v. Richard J. LOMBARDO, Respondent-Appellant.

No. WD 61572.

No. WD 61623.

Missouri Court of Appeals, Western District.

October 28, 2003.

Motion for Rehearing and Transfer to Supreme Court Denied November 25, 2003.

Kenneth C. Hensley, Raymore, MO, for appellant-respondent.

Gerard D. Eftink, Raymore, MO, for respondent-appellant.

Before: LOWENSTEIN, P.J., and SMART and EDWIN H. SMITH, JJ.

EDWIN H. SMITH, Judge.

Sandra L. DeHaan, f.k.a. Sandra L. Lombardo, appeals, and Richard Lombardo (respondent), her ex-husband, cross-appeals from the May 24, 2002 judgment of the Circuit Court of Cass County modifying its judgment on remand, in which the court had ordered, in accordance with § 452.335,¹ that the respondent pay to the appellant "as non-modifiable rehabilitative spousal maintenance the sum of Four Thousand Dollars ($4,000.00) per month for a period of 120 consecutive months ... to terminate upon the death of either party or the remarriage of the [appellant]." Despite the trial court's denomination of its maintenance award in its judgment on remand as being "non-modifiable," the court, in its May 24, 2002 judgment of modification, finding that it "intended that the maintenance awarded [the appellant] be modifiable" and based on a change of circumstances that the appellant was then cohabiting with an ex-spouse, ordered that the respondent's maintenance obligation be modified from $4000 to $2000 per month, commencing on February 11, 2002.

In her sole point on appeal, the appellant claims that the trial court erred in modifying its maintenance award, under § 452.370.1, because the award was denominated in the court's judgment on remand as being "non-modifiable." The respondent raises two points on cross-appeal. In Point I, he claims that the trial court erred in denying his motion to modify his maintenance obligation based on a change of circumstances that the appellant had remarried because the weight of the evidence demonstrated that the appellant had entered into a common law marriage created in and under the law of the State of Texas, which marriage is recognized by the State of Missouri. In Point II, he claims that the trial court erred:

in not issuing a sanction against [the appellant] that would have eliminated maintenance in that [she] committed a fraud on the court by lying about her rekindling her relationship with [her ex-husband] approximately 10 years before she filed for divorce and plotting to file for divorce because the court could never have awarded her $4,000 a month in maintenance if the truth had been told.

We dismiss the appellant's appeal for a lack of jurisdiction and affirm as to the respondent's cross-appeal, dismissing his points relied on for non-compliance with Rule 84.04(d) and (i).²

Facts

In an amended judgment of January 20, 1998, the Circuit Court of Cass County, Missouri, dissolved the marriage of the parties. In the judgment, the court ordered, inter alia, the respondent to pay the appellant as "non-modifiable rehabilitative spousal maintenance the sum of Four Thousand Dollars ($4,000.00) per month for a period of 120 consecutive months commencing at the date of the closing of the sale of the family residence located at 705 Sandpiper, Raymore, Cass County, Missouri." The trial court further ordered that the maintenance award was terminable "upon the death of either party, the remarriage of the [appellant], or the co-habitation of [the appellant] with a person of the opposite sex to whom she is not related by blood or marriage for a period of 30 consecutive days."

The appellant appealed to this court, challenging, inter alia, the provision in the trial court's amended judgment terminating her maintenance award for cohabitation. In Lombardo v. Lombardo (Lombardo I), 992 S.W.2d 919 (Mo.App.1999), this court reversed the judgment with respect to the automatic-termination-for-cohabitation language. In this court's opinion reversing and remanding the case, we stated that we were doing so "for the sole purpose of eliminating the portion of the decree relating to cohabitation of the [appellant], but the remaining portion of the judgment is affirmed and is to remain intact." Lombardo, 992 S.W.2d at 924.

On remand, the trial court, on December 1, 2000, entered its "Dissolution Judgment Entry nunc pro tunc" deleting from its mandate the automatic-termination-for-cohabitation language, but leaving the supporting finding. On March 22, 2001, the respondent filed a motion to modify the maintenance award of the trial court's amended judgment of January 20, 1998, alleging several grounds for modification, including cohabitation and common-law remarriage. In that regard, the respondent alleged that the appellant was cohabiting with her ex-husband, Lynn DeHaan, in the State of Texas, as husband and wife.

On July 27, 2001, the respondent filed a Rule 74.06(b) motion to vacate the judgment on remand of December 1, 2000, alleging, inter alia, mistake, inadvertence, surprise, excusable neglect, fraud, misrepresentation, and misconduct, and that the judgment was void, the prior judgment on which it relied had been reversed, and that "it [was] no longer equitable the subject Judgment remain in effect." The respondent also alleged that he was not aware of the judgment on remand until July 11, 2001.

On October 9, 2001, the trial court entered its second "Dissolution Judgment Entry nunc pro tunc," to correct the December 1, 2000 judgment, by deleting the automatic-termination-for-cohabitation language from the trial court's findings. As in the December 1, 2000 judgment on remand, the trial court denominated its maintenance award as being non-modifiable. Thereafter, on October 15, 2001, the respondent filed a second Rule 74.06(b) motion to vacate the October 9, 2001 nunc pro tunc judgment. And, on December 7, 2001, the respondent filed his "First Amended Motion to Modify Maintenance," alleging the same grounds for modification, but including an additional ground, which he denominated "change of circumstances."

The respondent's amended motion to modify was taken up and heard on February 11, 2002. At the hearing, the appellant challenged the trial court's jurisdiction to modify its maintenance award in that it had been denominated as being non-modifiable. On May 24, 2001, the trial court entered its "Judgment Modification," expressly denying the motion on the basis of common-law remarriage, but granting it as to cohabitation and ordering the respondent's maintenance obligation to be reduced to $2000 per month, beginning February 11, 2002.

This appeal followed.

Standard of Review

In reviewing the trial court's decision in an action to modify or terminate a maintenance award, we review in accordance with Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), and will uphold the court's judgment unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Adams v. Adams, 51 S.W.3d 541, 546 (Mo.App.2001). In our review, we are to view the evidence in a light favorable to the judgment, "disregarding evidence to the contrary and deferring to the trial court even if the evidence could support a different conclusion." Allen v. Allen, 927 S.W.2d 881, 885 (Mo.App.1996). Assuming the trial court's award is supported by the record and applicable law, the court has broad discretion in modifying its award of maintenance; however, that discretion is not unfettered. Bybee v. Bybee, 879 S.W.2d 793, 795 (Mo. App.1994). We will reverse the award where there is an abuse of discretion. Brooks v. Brooks, 957 S.W.2d 783, 786 (Mo.App.1997). An abuse of discretion will be found where the award shocks the court's sense of justice. Thomas v. Thomas, 76 S.W.3d 295, 300 (Mo.App.2002).

Appellant's Appeal

I.

The appellant claims that the trial court erroneously declared and applied the law in modifying the maintenance award of its judgment on remand, reducing the respondent's maintenance obligation to her from $4000 per month to $2000 per month, effective February 11, 2002, because the award was denominated in the court's judgment as being "non-modifiable." We agree.

Section 452.335.1 authorizes an award of maintenance to either spouse in a proceeding for dissolution of marriage. Section 452.335.3 provides that every maintenance order shall state whether it is "modifiable or nonmodifiable." Section 452.335.3 further provides that: "Unless the maintenance order which includes a termination date is non-modifiable, the court may order the maintenance decreased, increased, terminated, extended, or otherwise modified based upon a substantial and continuing change of circumstances which occurred prior to the termination date of the original order." Thus, a maintenance award that is denominated in a dissolution decree as being "non-modifiable" is not subject to modification under § 452.370.1, which provides, in pertinent part, that an award of maintenance "may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable." Section 452.370.3 provides that: "Unless otherwise agreed in writing or expressly provided in the judgment, the obligation to pay future statutory maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance."

In its amended dissolution judgment of January 20, 1998, the trial court awarded the appellant "non-modifiable" maintenance, ordering that:

the Respondent shall pay to the [appellant] as non-modifiable rehabilitative spousal maintenance the sum of Four Thousand Dollars ($4,000.00) per month for a period of 120 consecutive months commencing at the date of the closing of the sale of the family residence located at 705 Sandpiper, Raymore, Cass County, Missouri.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that said spousal maintenance shall terminate upon the death of...