McHugh v. Slomka

• Decision Date: 08 August 2017
• Docket Number: ED 103543
• Citation: 531 S.W.3d 588
• Parties: Daniel E. MCHUGH, Respondent, v. Elizabeth SLOMKA, Appellant.
• Court: Missouri Court of Appeals

531 S.W.3d 588

Daniel E. MCHUGH, Respondent,

v.Elizabeth SLOMKA, Appellant.

ED 103543

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: August 8, 2017

Motion for Rehearing and/or Transfer to Supreme Court Denied September 25, 2017.

Application for Transfer Denied November 21, 2017

Susan M. Hais and Elliott I. Goldberger, for appellant.

Anthony M. Pezzani, for respondent.

Lisa P. Page, Judge

Elizabeth Slomka ("Wife") appeals from the modification court's judgment modifying a dissolution judgment between her and her former husband, Daniel McHugh ("Husband"). We reverse and remand in part and affirm in part, with instructions.

BACKGROUND

Husband and Wife were married in Marion County, Indiana in May 1989. During the majority of their marriage Wife was not employed outside the home, and was the primary caregiver of the parties' three minor children (ages 15, 15, and 13 at the time the "Modification Judgment" was entered). For twenty years of their marriage, Husband was employed in various positions by the same large corporation in both Chicago and St. Louis. Eventually, he was promoted to Vice-President of Entertainment Marketing, earning approximately $250,000 per year as a base salary, plus annual bonuses of between $37,500 and $62,500. In 2009, Husband's employment was terminated due to an affair with a co-worker ("Paramour").

In May 2010, Husband filed a Petition for Dissolution of Marriage in the Circuit Court of the City of St. Louis. Pursuant to a settlement agreement, a Dissolution Decree was entered in February 2011, dissolving the parties' marriage. The Dissolution Decree incorporated a Marital Separation Agreement ("MSA") and a Parenting Plan (collectively, the "Dissolution Judgment").

The Dissolution Judgment awarded sole physical custody of the children to Wife. The parties were awarded joint legal custody, however Wife was granted the authority to make final decisions in the event of a disagreement. Husband was ordered to pay Wife the sum of $1,300 per month in child support for three children.¹ Each party was ordered to satisfy their own attorney's fees.

The specific terms of the MSA ordered the 5500 square-foot marital-home be sold. Additionally, the MSA addressed maintenance as follows:

a. Terms of Payment and Duration. It is reasonable for and [Husband] shall pay to [Wife] the sum of $2,000 per month as and for modifiable maintenance....

* * *

b. The parties understand that they are unable to maintain the standard of living during the marriage because [Husband] is unemployed. The parties understand that this amount is modifiable once [Husband] becomes employed....

The parties agreed in the Parenting Plan that Husband would reimburse Wife for: (1) 60% of the children's unreimbursed medical expenses, (2) 50% of the children's educational and extraordinary expenses "incurred by agreement in writing by the parties," and (3) 50% of the private school cost for their youngest daughter, up to $2,000 per year. In regard to extraordinary expenses, the MSA stated that "in the event the parties do not agree on the expense, the parent enrolling the children in the activity shall be responsible for 100% of the expense."

In June 2011, Husband accepted employment with a company in Pittsburgh, earning approximately $185,000 per year. Thereafter, in March 2012, Husband accepted employment with a different company located in California. Accordingly, Husband and Paramour (to whom he is now married) moved to Venice Beach, where Husband's annual salary is $307,000 per year; Husband also received a $100,000 bonus in 2013. Together, Husband and Paramour enjoy a lucrative household income of approximately $550,000 per year.

Conversely, in August 2011, Wife and the three children moved to Indianapolis, Indiana to reside with her parents. Wife testified that the impetus for her move and co-habitation with her parents (both of whom are in their mid-seventies) was out of "necessity," because the marital home was sold and Wife did not have family residing in the St. Louis area. Wife testified that their residency with her parents was intended to be "temporary." Wife also testified that she has pursued employment opportunities in Indianapolis; however, Wife has only been able to secure one part-time position for eight months, at $13 per hour. Since the dissolution, Wife has continued in her role as the primary caregiver of the parties' three children.

In October 2012, Wife filed a motion to modify the Dissolution Judgment, seeking an increase in maintenance and child support, reimbursement of medical, educational, and extraordinary expenses, and attorney's fees. Husband filed a counter-motion to modify, seeking a reduction in maintenance, as well as, a revision of the joint legal custody provision.

On June 2, 2015, after a two day trial, the court entered a Modification Judgment, decreasing Husband's maintenance to $1,000 per month and increasing child support to $3,169 per month for three children. The court denied Wife's requests for expenses and attorney's fees, and removed Wife's authority to make final decisions for the children.

This appeal follows.

DISCUSSION

Wife submits five points on appeal, contending that the modification court erred in: (I) reducing, rather that increasing, Wife's maintenance; (II) calculating the proper amount of child support; (III) failing to order Husband to reimburse Wife for the children's various educational, extracurricular, and medical expenses; (IV) removing the legal custody provision providing Wife the authority to make final decisions; and (V) failing to order Husband to pay Wife's attorney's fees incurred during the modification proceedings.

Standard of Review

Our review of the modification judgment is limited to whether it is supported by substantial evidence, is against the weight of the evidence, or erroneously declares or misapplies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) ; Nichols v. Nichols, 14 S.W.3d 630, 634 (Mo. App. E.D. 2000). The evidence, and all reasonable inferences therefrom, is viewed in the light most favorable to the judgment. Id.

Point I—The Parties Agreed to Increase Maintenance

In her first point on appeal, Wife contends the modification court erred in decreasing maintenance because, pursuant to the terms of the MSA, the parties agreed to increase the amount of maintenance awarded to Wife if Husband gained employment that would support their standard of living during the marriage. We agree.

A. The Modification Court Erred in Ignoring the MSA

Separation agreement decretal maintenance is "agreed to by the parties and incorporated into the dissolution decree." Barbeau v. Barbeau, 72 S.W.3d 227, 229 (Mo. App. E.D. 2002) ; Section 452.325.1.² When so incorporated, this type of maintenance becomes part of the court's judgment, and is binding upon and enforceable by the court. Section 452.325.2; Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 391-92 (Mo. banc 2001) (Incorporation allowed so long as the agreement is not unconscionable).

When interpreting a marital separation agreement, the normal rules of contract construction apply. Daily v. Daily, 912 S.W.2d 110, 114 (Mo. App. W.D. 1995). "The cardinal rule in the interpretation of a contract is to ascertain the intent of the parties and to give effect to that intent." Royalty v. Royalty, 264 S.W.3d 679, 684 (Mo. App. W.D. 2008). "This is done by giving the words of the agreement their plain and ordinary meaning as understood by a reasonable and average person." Daily, 912 S.W.2d at 114. The construction of a contract is generally a question of law, which we review de novo. Wood v. Wood, 2 S.W.3d 134, 138 (Mo. App. S.D. 1999).

Here, the modification court erred as a matter of law in failing to give effect to the MSA, which was incorporated into the Dissolution Judgment.³ The MSA reads, in relevant part:

a. Terms of Payment and Duration. It is reasonable for and [Husband] shall pay to [Wife] the sum of $2,000 per month as and for modifiable maintenance....

* * *

b. The parties understand that they are unable to maintain the standard of living during the marriage because [Husband] is unemployed. The parties understand that this amount is modifiable once [Husband] becomes employed....

This provision clearly governs the parties' modification proceeding herein. However, the modification court premised its judgment on whether a substantial change in circumstances had occurred, pursuant to Section 452.370.1, instead finding that since Wife's reasonable expenses had decreased since the dissolution, a decrease in maintenance was warranted. This is error, for the trial court cannot ignore the bargained-for terms of the parties' marital separation agreement. Lueckenotte, 34 S.W.3d at 391-92 ; State ex rel. Riverside Pipeline Co., L.P. v. Pub. Serv. Comm'n of State, 215 S.W.3d 76, 84 (Mo. banc 2007) ("A contract must be construed as a whole so as to not render any terms meaningless, and a construction that gives a reasonable meaning to each phrase and clause and harmonizes all provisions is preferred over a construction that leaves some of the provisions without function or sense.").

B. Husband's Substantial Increase in Income Requires an Increase in Maintenance.

In reviewing this point on appeal, we must apply the terms of the MSA to this modification proceeding, in order that we may "ascertain the intent of the parties and to give effect to that intent." Daily, 912 S.W.2d at 114. If the language of a marital separation agreement is in dispute, the court must determine the parties' intent as manifested in the document itself and not by what the parties say they intended. Id. ; Wood, 2 S.W.3d at 138 (An agreement is not ambiguous merely because parties disagree over its meaning). Therefore, we turn to the language of the MSA to resolve the parties' dispute.

During the initial dissolution proceedings, the parties agreed that Husband would pay Wife $2,000 per month in maintenance, stipulating that they were "unable to maintain...