Lombardo v. Lombardo, 55568

• Decision Date: 25 May 1999
• Docket Number: No. 55568,55568
• Citation: 992 S.W.2d 919
• Parties: Sandra L. LOMBARDO, Appellant, v. Richard J. LOMBARDO, Respondent.
• Court: Missouri Court of Appeals

Page 919

992 S.W.2d 919

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

No. 55568.

Missouri Court of Appeals,

Western District.

May 25, 1999.

Kenneth C. Hensley, Esq., Raymore, for Appellant.

Daniel W. Olsen, Esq., Raymore, for Respondent.

Before: Presiding Judge HAROLD L. LOWENSTEIN, Judge PAUL SPINDEN, and Judge VICTOR HOWARD.

LOWENSTEIN, Judge.

Sandra Lombardo (Wife) filed this action for dissolution of marriage against Richard Lombardo (Husband). They were married in 1976. They separated in 1996 after having one child who was then eighteen. Wife appeals, raising four points that relate to maintenance and the division of marital property and allocation of debts.

The court's amended judgment found that Wife needed, and Husband was able to pay, rehabilitative maintenance of $4,000 a month for 120 months, with payment starting after the sale of the marital home. (Wife was to receive maintenance of $1,500 per month until the sale of the house). Maintenance was to terminate upon the death of either party, if Wife remarried, or if Wife co-habitated with a person of the opposite sex for 30 consecutive days. Husband was to obtain and maintain, so long as maintenance was payable a $250,000 term policy on his life, with Wife as beneficiary. Child support of $1,000 was awarded to be paid directly to the child. The marital home (valued at $274,900 with an outstanding note of $175,000) was to be sold within 150 days; the proceeds were to be evenly divided. Husband was allowed $25,000 from the home sale to pay a debt. Other marital property, which was ordered to be sold, included a lot next to the marital home ($34,900 less note of $3,000), a lot in Arkansas, a boat and trailer, and a horse. Husband's retirement plan ($40,000) and profit sharing plan ($176,000) was to be equally divided. Stock in husband's company, Kansas City Acute Care Specialists, was awarded to Husband. Husband's income was averaging over $200,000 a year from the business.

The standard of review is pursuant to Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The burden of demonstrating error is on the appellant. Crews v. Crews, 949 S.W.2d 659, 663--64 (Mo.App.1997). The division of marital property will be reversed only on a division so unduly weighted to one party as to amount to an abuse of discretion. Id. Maintenance orders are viewed with the trial court being granted broad discretion. Id.

Wife's first point asserts the trial court erred as a matter of law in interpreting § 452.370.3, RSMo 1994, to allow it to include language about termination of maintenance if she cohabits with a man for more than thirty consecutive days. The language of the decree stated that Husband shall pay Wife, "as non-modifiable rehabilitative spousal maintenance," $4000 a month for 120 months, and that said "spousal maintenance shall terminate upon the death of either party, the remarriage of the Petitioner [Wife], or the co-habitation of Petitioner 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 evidence showed that after separation, Wife rekindled a relationship with her former husband and in her petition asked for, and was granted, restoration of her former married name. Section 452.370.3 reads: "Unless otherwise agreed to in writing, or expressly provided in the decree, the obligation to pay future statutory maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance."

Although there is a hint this provision may represent a pay-out of a lump sum payment in the division of property in order to make an equitable distribution, the clear language denominates these payments as maintenance and the court will treat the payments as maintenance. Boettcher v. Boettcher, 870 S.W.2d 876, 879 (Mo.App.1993).

This point then presents the issue: may a trial court as part of its decree, either under the statutory authority to award maintenance or under the court's equitable powers, include in the decree of dissolution a provision which automatically terminates maintenance (without the necessity of proof via modification hearing on changed financial circumstances of person receiving maintenance (Section 452.370.1, RSMo 1998 Cum.Supp.)), if the recipient cohabits with a person of the opposite sex for more than thirty days? ¹

This issue does not include the situation where the parties settle their dispute on maintenance and the court incorporates the parties' separation agreement that cohabitation terminates maintenance. Section 452.325.1; Barr v. Barr, 922 S.W.2d 419, 421 (Mo.App.1996). Section 452.335.1 grants the court authority to award maintenance where the party seeking maintenance does not have sufficient property to provide for their needs and is unable to support the party through appropriate employment, and in subsection .2 then allows the court to consider ten enumerated factors in setting the amount and duration of the award.

Wife's reliance on Henderson v. Henderson, 746 S.W.2d 99, 101 (Mo.App.1988) to excise the cohabitation provision from the decree is not conclusive. Henderson, unlike the facts in the case at bar, involved a dispute over the portion of a decree dealing with the sale of the family residence upon the cohabitation of the wife who had been granted custody of the child and had been allowed to remain in the family house. This court said such a decretal provision went contrary to the primary consideration, the best interests of the child to be able to remain in the home. The opinion went on to state that "cohabitation is not generally such a permanent relationship as marriage." Id. at 101. Indeed, Missouri does not recognize common law marriages. Section 451.040.5. Whitley v. Whitley, 778 S.W.2d 233, 238 (Mo.App.1989). Cohabitation of over thirty days does not in and of itself rise to the legal status of marriage. Under § 452.370.3, RSMo Cum.Supp.1998, future maintenance, unless otherwise provided by the parties or the court, is terminated only, "upon the death of either party or the remarriage of the party receiving maintenance." Under the facts in this case, where there was evidence of the Wife asking to take the name of her former husband, and showing an intent to live with him following the dissolution, could the court include in its decree that if the Wife should cohabit for thirty days her monthly maintenance would be terminated?

The two key words of the issue presented, maintenance and cohabitation, involve different matters. Maintenance essentially concerns an economic need. "The concept of maintenance is to provide a spouse with the income necessary to provide for his or her reasonable needs." Herzog v. Herzog, 761 S.W.2d 267, 268 (Mo.App.1988). Cohabitation, however, raises moral and societal issues; it has some of the trappings of a marriage, but without the necessary permanence or certainly the legal status. Id. As the court noted in Herzog, "[t]he current social trend of non-marital cohabitation presents a vexing problem where modifications of maintenance are sought," since the spouse receiving support has no new legal right for support from the person living with them, but, "there is a basic unfairness in requiring a prior spouse to continue support of a spouse who has entered into a long term or permanent relationship having some of the benefits of marriage but few of the detriments." Id.

Though no Missouri case has squarely addressed dissolution decree language which automatically terminates maintenance where there has been cohabitation for thirty days or more, Judge David Dixon, writing for this court in Brown v. Brown, 673 S.W.2d 113, 114-16 (Mo.App.1984), wrote on the difficulty in dealing with the effect of cohabitation and maintenance. The case involved maintenance in gross where the wife had been living with another man. The Brown opinion at page 114 cited contemporary articles in the Journal of Family Law, and at page 115 cited cases from other states, which formed a majority of scholars and courts which held that cohabitation alone was insufficient to modify, suspend, or cause to cease a decree of maintenance. Cases from other states were cited which held there should not be an outright termination, but that a trial court should take evidence "to review the maintenance award in the light of the economic effect of the cohabitation upon the need of the maintenance recipient." Id. at 115. The court recognized the difficulties in the majority rule -- that the cohabiting parties may make a financial arrangement so that it will appear the spouse receiving maintenance has the same continuing financial need. Id. at 114-5. The purpose of the minority view is to eliminate any further maintenance solely on the existence of a cohabiting relationship. Id. at 115. This court in Brown, and other states which hold to the majority, point out that a transitory cohabitation will not necessarily alter the capability of a spouse for self-sufficiency. As pointed out earlier in this opinion, the statutory scheme in § 452.335 presents a two-step process for maintenance, subsection one presents the criteria for...