Mendelsohn v. Mendelsohn, s. 55703

• Decision Date: 27 February 1990
• Docket Number: Nos. 55703,55725,s. 55703
• Parties: Robert S. MENDELSOHN, Petitioner/Respondent, v. Dolores M. MENDELSOHN, Respondent/Appellant.
• Court: Missouri Court of Appeals

Page 321

787 S.W.2d 321

Robert S. MENDELSOHN, Petitioner/Respondent, v. Dolores M. MENDELSOHN, Respondent/Appellant.

Nos. 55703, 55725.

Missouri Court of Appeals,

Eastern District,

Division Four.

Feb. 27, 1990.

Motion for Rehearing and/or Transfer to Supreme Court

Denied March 28, 1990.

Application to Transfer Denied May 15, 1990.

Daniel P. Card, II and Bryan L. Hettenbach, Love, Lacks & Paule, St. Louis, for respondent/appellant.

Bernard A. Barken, Bernard A. Barken, P.C., St. Louis, for petitioner/respondent.

HAMILTON, Presiding Judge.

Appellant, Dolores M. Mendelsohn (hereinafter Wife), appeals the order of the trial court modifying the dissolution decree, entered May 16, 1985, reducing the amount of maintenance payable to her by Dr. Robert S. Mendelsohn, her former husband (hereinafter Husband). We reverse.

Pursuant to the parties' dissolution of marriage decree, Wife was awarded $2400 monthly as and for decretal maintenance. On January 23, 1987, Husband filed a motion to modify maintenance. Following a hearing on August 18, 1988, the trial court entered an order of modification reducing the maintenance to $1000 per month. Wife filed a motion to amend the order. On November 1, 1988, the trial court entered a second amended order, modifying certain of its findings of fact, but reasserting its previous order reducing Wife's maintenance to $1000 per month. Wife thereafter appealed.

The parties were separated on February 19, 1984, after five years and ten months of marriage. Their marriage was dissolved on May 16, 1985. At the time of marriage, Husband was fifty years old and Wife was forty-seven. Each had older children by prior marriages.

Evidence presented at the hearing on the motion to modify disclosed that Husband was a physician in private practice with Associated Internists, Inc., in which he owned a twenty percent interest. During the marriage, Wife had been licensed as a real estate salesperson. Although she worked for two real estate companies, Wife testified she had been fired because Husband called her too often at work. She believed that he did not want her to work. Her real estate license lapsed in 1984.

Wife suffered physical illness during the marriage. Complaining of rectal bleeding in 1981, Wife was diagnosed as having internal hemorrhoids and cancer in the wall of the rectum. Following radiation treatment, Dr. Ira Kodner surgically removed Wife's sigmoid colon and part of her rectum in December, 1983. Her gynecologist also performed a hysterectomy on Wife on that occasion.

Dr. Kodner diagnosed Wife as having irritable bowel syndrome, a condition marked by either constipation or diarrhea or alternating constipation and diarrhea and sometimes accompanied by cramping and abdominal pain. Wife experienced bowel problems both before and after surgery. In 1984, tests showed Wife had a duodenal ulcer.

In September, 1984, during the pendency of the parties' divorce action, Wife began seeing a psychiatrist, Dr. Jay Liss, who diagnosed her condition as chronic depression with episodes that reach disabling proportions and, in addition, anxiety. Dr. Liss treated her with psychotherapy and medication and has continued to see her regularly since her first visit.

The parties were divorced on May 16, 1985, in a non-contested proceeding. Pursuant to the dissolution decree, Wife was awarded monthly maintenance of $2400. In 1985, Husband's gross income was $100,125. Wife was unemployed at the time of divorce with no outside source of income. By agreement, she received $74,000 plus interest realized from the sale of the parties' home purchased during the marriage.

Twenty months after entry of the dissolution decree, Husband filed a motion to modify the maintenance award. He alleged that since the decree Wife had become employed and he had suffered a reduction in income and earnings that he believed to be permanent.

During the pendency of the motion to modify, Husband remarried. He moved into the house owned by his new wife, and they shared living expenses. She was employed, earning an annual salary of approximately $39,000.

At the hearing on the motion to modify, documentary evidence disclosed that Husband earned $100,123 in 1985; $98,172 in 1986; and $100,882 in 1987. He testified that he expected to earn $94,000 in 1988.

Wife, who had a high school education, contemplated seeking employment at the time of dissolution in May, 1985. In July, 1985, she began work as a part-time fur salesperson at Leppert Roos. She earned $5,505 in 1985; $15,000 in 1986; and $20,189.82 in 1987.

In October, 1987, she entered the Stress Unit at St. Anthony's Medical Center for treatment of depression under the care of Dr. Liss. During this time, Wife continued to have bowel problems. She testified that because of her physical and emotional problems she stopped working at Leppert Roos.

Medical opinions as to Wife's employability differed. Dr. Liss was of the opinion that Wife was unable to maintain full-time employment and also unable to function in part-time employment. Dr. Kodner believed that Wife was cured of cancer and able to work at most occupations. Although she might suffer discomfort and inconvenience due to irritable bowel syndrome, Dr. Kodner had never seen this condition cause loss of employment. As to whether irritable bowel syndrome prevented employment, Dr. Kodner stated it did not in 80% of the cases. Dr. Fred W. Gaskin, a psychiatrist that Husband hired to administer a psychiatric examination to Wife, testified that Wife was not clinically depressed. She did, in his opinion, have a Type B personality disorder, most probably, the narcissistic borderline and hysteric-type personality disorder, described as a lifelong chronic maladaptive behavior that...