Taormina v. Taormina

• Decision Date: 21 December 2021
• Docket Number: WD84334
• Court: Missouri Court of Appeals
• Parties: SUSAN ANN TAORMINA Appellant, v. MARC KENNETH TAORMINA, Respondent.

SUSAN ANN TAORMINA Appellant, v. MARC KENNETH TAORMINA, Respondent.

No. WD84334

Court of Appeals of Missouri, Western District, Third Division

December 21, 2021

APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE HONORABLE JAMES F. KANATZAR, JUDGE

Lisa White Hardwick, Presiding Judge, Gary D. Witt, Judge and Edward R. Ardini, Jr., Judge

EDWARD R. ARDINI, JR., JUDGE.

Susan Taormina ("Wife") appeals from a judgment entered by the Circuit Court of Jackson County denying her motion for contempt and granting Marc Taormina's ("Husband") motion to terminate maintenance following their divorce. We affirm in part, reverse in part and remand to the trial court.

Factual and Procedural Background

Husband and Wife married in 1981, and in 1989, they adopted a daughter. In 2006, Husband and Wife were divorced pursuant to a judgment entered by the Circuit Court of Jackson County.^[1] In the divorce decree, the trial court ordered Husband to pay maintenance to Wife in the amount of $2, 650 per month beginning in April 2006.

Husband paid the ordered maintenance until November 2019. In February 2020, Wife filed a motion seeking to hold Husband in contempt for failing to pay the ordered maintenance. In April 2020 Husband filed a motion seeking an order terminating or, in the alternative, modifying the award of maintenance, alleging that Wife was in a relationship that was a substitute for marriage and that there had been substantial and continuing changes in Wife's circumstances. Wife was not personally served with this motion, but a response was filed by counsel on her behalf on April 24, 2020.

A hearing was held on the motions during which Husband and Wife testified. The evidence showed the following:

When Husband and Wife were married, Husband worked as a physician and Wife did not work. Wife had received a bachelor's degree in exercise and physical education but had never pursued employment in that field. When Husband and Wife adopted their daughter ("Daughter"), the parties agreed that Wife would stay home to parent Daughter.

In 2006, when the parties divorced, the marital assets totaling $5, 765, 684 were divided between the parties. Wife was awarded 52.6% of the assets, including a home in Lee's Summit, a home in Arizona, half of the couple's brokerage, checking, and savings accounts, half of the couple's retirement funds, and a $520, 000 equalization payment from Husband. The divorce decree also awarded maintenance to Wife in the amount of $2, 650 per month. In determining the maintenance amount, the decree stated that Wife's reasonable monthly expenses were $8, 976, that Wife was capable of earning an average of $1, 000 per month and that Wife had insufficient income-producing marital property to support herself.

Sometime in 2006, while the divorce was pending, Wife began a relationship with Scott Burton ("Burton"). Burton is the owner and president of Prestige Pool Company. Wife first met Burton when he installed a pool for Husband and Wife.

Also in 2006, Wife started a business selling custom poolside furnishings. Although Wife claimed that she did not make any money in this venture and did not intend to go into business with Burton, Burton's company became the managing member of Wife's limited liability company in 2009. In 2016, Wife sold her business to Burton's company for $25, 000.

At some point, Wife and Burton began living together and, in 2009, Wife moved with Burton to Las Vegas. Wife purchased a lot in a suburb of Las Vegas for $282, 000. Nearly five years later, Wife and Burton built a home on the land. Before beginning the building process, Wife deeded the land to Burton in exchange for $10. Wife testified that she did this because she could not get a loan on her own because she lacked the necessary stream of income. Wife estimated that she and Burton each contributed $500, 000 to the home. According to the Clark County, Nevada tax rolls, the home is worth $1.8 million.

Wife and Burton traveled extensively, including flying in Burton's private plane. Burton gave Wife gifts, such as all-inclusive Superbowl tickets. Burton was present at many of Wife's family events, including graduations, engagements parties, and weddings. Despite living together, spending time with each other's families, and admitting that they were intimate, Wife claimed that her relationship with Burton was a "businesslike relationship." Wife insisted that Burton did not assist with her monthly expenses and they had no agreement to support each other.

Wife was an employee at Prestige Pool Company, performing miscellaneous work as needed, which usually required between twenty and forty hours of work per week. At the time of the hearing, Wife had worked for Burton's company for twelve years. For this work, Wife was paid a salary of $1, 416 per month and received fringe benefits including health insurance, a cell phone, a company car, and a company credit card for gas and other expenses totaling approximately $1, 263 per month.

In addition to her salary and benefits, Wife also received $973 per month in Social Security benefits and $1, 836 per month from investments. Wife claimed that her monthly expenses included $1, 685 toward balances on credit cards and other debts, including loans from Burton, approximately $926 toward mortgage payments, $435 for homeowner's association fees, $720 for a personal trainer, $750 for maintenance and repairs to her home, $300 for gifts, and $200 for vacations.

Wife asserted that her assets at the time of trial exceeded $3 million, including $2, 500 in household or personal items, $2, 133, 733 in securities, and half of the value of the home she shared with Burton worth approximately $1.8 million. Many of Wife's assets were kept in a trust, to which Burton was listed as the beneficiary.

Wife claimed that, although she was a salaried employee at Burton's company, she was physically unable to work full-time due to a back injury.^[2] Wife testified that she was permanently disabled but that she has never applied for disability benefits. Wife also stated that she had been diagnosed with several other medical issues since 2006, including a blood disorder, spine issues treated by a cervical fusion, and central thrombocytosis.^[3]

In 2016 or 2017, Daughter became engaged.^[4] The invitation stated, "[Husband] and [his current wife] and [Wife] and [Burton] invite you to the wedding of their daughter." Husband was upset by this wording, believing that it meant that Wife and Burton "were listed as a couple and inviting people to the wedding and giving away their daughter." In October 2019, Daughter was married in Las Vegas. In addition to Husband, Burton also shared a father-daughter dance with Daughter. The wedding was "extravagant[, ]" and Burton shared in the costs, including by paying for a $5, 000.00 bottle of wine, hotel rooms to house guests, and approximately one million Southwest Air points to fly guests to Las Vegas. Burton also provided $10, 000 to Wife for Daughter's wedding dress, which Wife characterized as a loan.

Husband stopped paying maintenance after the wedding. His last payment to Wife was in October 2019.

The trial court granted Husband's motion to terminate maintenance retroactive to October 31, 2019, finding that "there have been changed circumstances so substantial and continuing as to make the terms of [the previous order] unreasonable." The trial court specifically noted the following changes in circumstance:

A. [Wife] is now receiving income from Social Security benefits;

B. [Wife] is cohabitating with Scott Burton and her reasonable expenses are being and should be shared by and through that relationship;

C. [Wife] has reached an age where her retirement investments may be drawn upon for her reasonable expenses without financial penalty;

D. [Wife's] reasonable expenses at the time of the underlying decree have been reduced;

E. [Wife] can and has worked 40 hours a week.

The trial court also found that Wife's "relationship with Mr. Burton has long ago achieved a status of a permanent relationship. [Wife] and Mr. Burton are and have been for some time holding themselves out as man and wife in all significant respects." The trial court based this finding on the events surrounding Daughter's wedding, the "commingling of [Wife and Burton's] joint holdings and title to real estate," that Wife's expenses "are covered through her relationship with Mr. Burton, including health and auto insurance, cell phone, car, vacations and travel, wedding and other expenses related to [Daughter], mortgage installments on real estate[.]" The trial court further explained that Wife's salary supports the finding that Wife and Burton have an agreement to support each other:

[Wife] claims she is unable to work full time, but draws a salary from Mr. Burton for 20 to 40 hours a week of work. This obvious contradiction leads the Court to only one of two possible conclusions: One, [Wife] is able to work and earn a fulltime income, or the salary she receives from Mr. Burton is in reality direct payments by Mr. Burton to cover [Wife's] reasonable expenses, again evidencing that [Wife] and Mr. Burton are committed to, and in fact are in, a committed relationship and can support one another's reasonable financial needs[.]"

Finally, the trial court determined that "many of [Wife's] expenses are unreasonable and if eliminated would significantly mitigate the costs of her reasonable expenses. Such expenses include $750.00 a month for a personal trainer."

Based on the trial court's granting of Husband's motion to terminate maintenance, it also denied Wife's motion for contempt. Wife appeals from the trial court's judgment.

Standard of Review

"'Our review of a ruling on a motion...