DocketNumber: No. ED 105496
Citation Numbers: 546 S.W.3d 582
Judges: Quigless
Filed Date: 1/9/2018
Status: Precedential
Modified Date: 1/21/2022
Jill L. Barden ("Wife") appeals from the judgment of the Circuit Court of St. Louis County modifying the dissolution decree dissolving her marriage to Theodore M. Barden ("Husband"). Wife asserts five points on appeal. Wife argues the trial court erred in modifying Husband's maintenance obligation as well as his child support obligation for Sophie and Stella, abating Husband's child support obligation for Emma, and awarding Husband the dependency tax exemption for Sophie.
Because the trial court exceeded the scope of this Court's mandate in Barden v. Barden ,
Factual and Procedural Background
Because this is the third time this case has been before this Court, it is necessary we set forth the complete procedural history of the case as it is significant to the disposition of this appeal.
Husband and Wife have three children, Emma, Sophie, and Stella. Husband and Wife separated in February 2010, and their marriage was dissolved in November 2011. Pursuant to the judgment of dissolution of marriage, Husband was ordered to pay Wife child support in the amount of $1,383 per month for three children, and maintenance in the amount of $1,875 per month plus 35% of any gross commissions or bonuses Husband received through his *587employment. At the time of dissolution, Husband earned approximately $260,000 per year, including commissions and bonuses, and Wife was unemployed.
In 2012, Husband was terminated from his job. It took him about six month to find new full-time employment. His new job paid approximately $50,000 annually. As a result of the decrease in his income, Husband filed a motion to modify the dissolution decree. On November 6, 2013, the trial court held a modification hearing, and subsequently entered a modified judgment, which, in relevant part, terminated Husband's obligation to pay maintenance to Wife, reduced his child support obligation to $861 per month, terminated his duty to assist in paying Emma's college expenses, and awarded Wife the right to claim all three children as exemptions for federal and state income tax purposes in 2013 and succeeding years.
Wife appealed the modified judgment, arguing the trial court erred in terminating Husband's maintenance obligation, and terminating Husband's duty to assist in paying Emma's college expenses. On appeal, this Court reversed the trial court's judgment as to both issues because the court relied on Wife's post-dissolution conduct, and the nature of the relationship between Husband and Emma. Barden v. Barden ,
Thereafter, Wife filed a motion to reopen evidence. The trial court allowed limited discovery regarding Husband's income. Husband's tax return revealed he earned approximately $150,000 in 2014. Subpoenaed records from Husband's employer also revealed Husband earned nearly $239,000 between November 6, 2013 and August 5, 2015. However, the trial court denied Wife's motion to reopen evidence and entered its amended judgment in September 2015. The trial court found Husband had an annual salary of $50,000 and imputed an annual salary of $24,000 to Wife.
Wife again appealed, arguing the trial court erred by using stale evidence to determine Husband's maintenance and child support obligations.
Following the remand, the trial court entered a pre-trial order allowing discovery with respect to changes in the parties' financial resources since November 2013. Thereafter, Husband filed a Motion to Abate Child Support, arguing, inter alia , his child support for Emma should be abated retroactive to August 2014 because Emma failed to provide her college transcripts and class schedules to Husband, and Emma lived with Husband during the summer of 2016 and spent no overnights with Wife.
On November 18, 2016, the trial court held a hearing on this Court's remand as well as Husband's motion to abate. In its judgment, the trial court, in relevant part, reduced Husband's maintenance obligation to $875 per month, retroactive to March 1, 2013, and reduced Husband's child support obligation for Sophie and Stella to $935 per month, effective July 1, 2016. The trial court also abated child support for Emma between September 1, 2014 and May 31, 2016, as well as between September 1, 2012 and February 28, 2013, and ordered Wife to pay Husband $1,000. The trial court further gave Husband the right to claim Sophie as an exemption for federal and state income tax purposes in 2016 and succeeding years. Wife appeals.
Points Relied On
Wife asserts five points on appeal. In Point I, Wife argues the trial court erred in modifying maintenance Husband pays to Wife from $1,875 per month plus 35% of all commissions and bonuses earned to a flat $875 per month, retroactive to March 1, 2013, because said modification violates Section 452.370.1. In Point II, Wife argues the trial court erred in abating child support between September 1, 2012 and February 28, 2013 for Emma, and entering judgment in favor of Husband and against Wife in the amount of $1,000 because said abatement violates Section 452.340.7. In Point III, the trial court erred in abating child support between September 1, 2014 and May 31, 2016 for Emma because said abatement violates Section 452.340.5. In Point IV, Wife argues the trial court erred in departing from the presumed child support amount and setting child support for Sophie and Stella at $935 per month, effective July 1, 2016, because said departure violates Section 452.340 and this Court's holding in Barden I . In Point V, Wife argues the trial court erred in awarding Husband the dependency tax exemption for Sophie beginning in tax year 2016 because said departure violates Section 452.340.
Standard of Review
As with any court-tried case, we review a trial court's judgment modifying a dissolution decree pursuant to Murphy v. Carron ,
This Court gives great deference to the trial court's superior opportunity to adjudge the credibility of witnesses and the weight given their testimony. Hopkins v. Hopkins ,
*589Discussion
Point I-Modification of Maintenance
In Point I, Wife argues the trial court erred in modifying maintenance Husband pays to Wife from $1,875 per month plus 35% of all commissions and bonuses earned to a flat $875 per month, retroactive to March 1, 2013, because said modification violates Section 452.370.1. Specifically, Wife argues (1) Husband failed to prove a substantial and continuing change in circumstances because his present income is not significantly lower than his income at the time of the dissolution judgment; (2) Husband presently earns sufficient income to pay the maintenance ordered in the dissolution judgement; (3) Wife cannot meet her reasonable needs with a lesser amount of maintenance; and (4) the trial court cannot force Wife to deplete her share of Husband's 401(k) awarded to her in the dissolution judgment to give Husband a lower maintenance obligation.
Section 452.370 governs modification of maintenance. Pursuant to Section 452.370.1, in order to modify a maintenance support award, there must be a showing of changed circumstances so substantial and continuing as to make the terms of the current support award unreasonable. The trial court must consider all financial resources of both parties when determining whether a substantial change in circumstances has occurred. Section 452.370.1; Swartz v. Johnson ,
Generally, a substantial and continuing change in circumstances warranting modification of maintenance exists when the obligor spouse is unable to pay maintenance at the assigned rate, or when the recipient of the support could meet her reasonable needs with a lesser amount of maintenance. Rustemeyer v. Rustemeyer ,
Further, a change in circumstances must be unknown and unforeseeable at the time of the entry of the judgment that the spouse seeks to modify. Rustemeyer ,
A. Husband's Income and Expenses
On appeal, Wife argues the trial court erred in decreasing Husband's maintenance obligation because his present income is not significantly lower than his income at the time of the dissolution judgment, and he has the ability to pay the original award of maintenance. We disagree.
A decrease in income of the spouse paying maintenance constitutes a substantial and continuing change in circumstances where the obligor spouse is *590unable to meet his own reasonable needs and is also unable to pay the original maintenance obligation. See Draper v. Draper ,
In addition to considering Husband's income and expenses, the trial court considered Husband's other financial resources, debts, and payments since dissolution, as permitted by Section 452.370.1. See Swartz ,
Although Wife points to Husband's "many overstatements of expenses" in his Statement of Income and Expenses, and essentially requests we reweigh the accuracy of those expense statements and compare them with any contradictory testimony presented at trial, we decline to do so here. The trial court has broad discretion to modify Wife's maintenance obligation. See Almuttar v. Almuttar ,
*591B. Wife's Income and Expenses
Although our review of Husband's income and expenses is sufficient to support a finding that a decrease in maintenance is appropriate in this case, we further address Wife's argument that she is unable to meet her reasonable needs with a lesser amount of maintenance. Wife also asserts the trial court erred when it determined she could meet her reasonable needs through the depletion of her share of Husband's 401(k) award. We find Wife's arguments unpersuasive.
At the hearing, the evidence presented was that Wife was unemployed at the time of dissolution. As of November 6, 2013, Wife earned $728 in monthly gross income, and her reasonable monthly expenses were $7,895. As of November 18, 2016, Wife's gross monthly income increased to $781, and her reasonable monthly expenses decreased to $7,135. In its judgment, the trial court imputed an annual salary of $24,000 to Wife, and subsequently concluded a decrease in maintenance was justified because Wife's monthly income increased and her expenses decreased since dissolution. Specifically, the court stated:
If, upon dissolution of the marriage, when Wife had no earnings and greater expenses for herself than on the date of the final evidentiary hearing, she required maintenance of $1,875.00 per month, then, on the date of the evidentiary hearing, if Wife has gross wages of $2,000 per month and reduced expenses, she requires maintenance of $875.00 per month.
On appeal, however, Wife argues $875 per month in maintenance fails to cover the shortfall-approximately $4,300-between her monthly income and expenses.
There is a long-standing public policy in Missouri that maintenance is awarded for the sole purpose of "providing support until the more dependent spouse can achieve a 'reasonable self-sufficiency' in the light of the statutory factors." Hammer v. Hammer ,
In this case, we recognize the trial court imputed a $24,000 annual salary to Wife, and we acknowledge the shortfall between Wife's monthly income and her expenses. However, as discussed supra , this does not change the fact that Husband would be unable to meet his own reasonable needs, including making his monthly child support payments, absent a decrease in maintenance. See Rustemeyer ,
Accordingly, we find the trial court did not err in modifying Husband's maintenance obligation to Wife because Husband met his burden of proving a substantial and continuing change in circumstances, which made the terms of the original decree unreasonable. See Lindhorst ,
Point IV-Modification of Child Support
In Point IV, Wife argues the trial court erred in departing from the presumed child support amount and setting child support for Sophie and Stella at $935 per month, effective July 1, 2016, because said departure violates Section 452.340, and this Court's holding in Barden I . Specifically, Wife argues the trial court premised its departure on the post-dissolution conduct of Wife, and speculative, rather than actual, changes in circumstances. We disagree.
In determining a proper child support amount, Rule 88.01
The presumed child support amount calculated pursuant to Form 14 may be rebutted upon a finding that it is unjust and inappropriate after consideration of all relevant factors, including the factors outlined in Section 452.340.1.
Here, the trial court performed its own Form 14 calculation. However, the court rebutted the presumed child support amount as unjust and inappropriate, and ordered Husband to pay child support in the amount of $935 per month for Sophie and Stella based on the following factors:
(a) upon conclusion of academic year 2015-2016, Wife told Emma to "go live with" Husband, who, as a result, will have full responsibility for support of Emma, including Emma's costs at *593Southeast Missouri State University during her junior and senior years; (b) since Sophie and Stella have attained age 16, in 2015 and 2016 respectively, Husband has paid the expenses related to ownership and operation of Sophie's and Stella's motor vehicles; (c) Wife has told Sophie and Stella by text message that Wife plans to "give more custody" to Husband so that Husband still pays Wife support for Sophie and Stella, but Wife "can spend it on myself"; and (d) Wife has told Sophie and Stella that they "will not be getting one red cent from me moving forward" and that "groceries will be slim[.]"
On appeal, Wife argues there was no legal or factual basis for departure from the presumed child support amount. Specifically, Wife argues it is irrelevant that Emma lives with Husband because she was removed from the child support calculation, and Wife's statements to Sophie and Stella were speculative and amounted to hearsay. We disagree.
Here, the trial court properly considered the factors outlined in Section 452.340.1 when rebutting the Form 14 as unjust and inappropriate. Specifically, the trial court considered the financial resources and needs of Husband when it considered Husband's new responsibility to fully support Emma, and his expenses related to the ownership, operation, and maintenance of Sophie and Stella's vehicles. See Section 452.340.1(2). In considering Wife's text messages to the children about giving Husband more custody, spending the child support payments on herself, and that groceries would be slim, the trial court took into account the amount of time the children spend with each parent and the reasonable expenses associated with the custody or visitation arrangements. See Section 452.340.1(5).
Moreover, even if the factors considered by the trial court do not fall under Section 452.340.1, as noted above, there is no mandatory worksheet or formula when determining whether a Form 14 amount is unjust and inappropriate, and the court may consider non-Form 14 factors. See Woolridge ,
Points II, III, and V-Abatement and Dependency Tax Exemption
For ease of analysis, we address Points II, III, and V together. In Point II, *594Wife argues the trial court erred in abating child support between September 1, 2012 and February 28, 2013 for Emma, and entering judgment in favor of Husband and against Wife in the amount of $1,000. In Point III, Wife argues the trial court erred in abating child support between September 1, 2014 and May 31, 2016 for Emma. In Point IV, Wife argues the trial court erred in awarding Husband the dependency tax exemption for Sophie beginning in tax year 2016. We find the trial court was without authority to enter findings regarding abatement of child support and revisiting the issue of dependency tax exemption because the judgment exceeded the scope of this Court's mandate in Barden II .
On remand, the scope of the trial court's authority is defined by the appellate court's mandate. Guidry v. Charter Commc'ns, Inc. ,
There are two types of remands: (1) a general remand, which does not provide specific directions and leaves all issues open to consideration in the new trial; and (2) a remand with directions, which requires the trial court to enter a judgment in conformity with the mandate. Bryant v. Bryant ,
Our mandate in Barden II provided:
The Court, being sufficiently advised of and having considered the premises, adjudges that the judgment rendered by the St. Louis County Circuit Court in cause No. 10SL-DR01020 be reversed and the cause remanded to the aforesaid court with instructions to consider evidence of the parties' current finances when determining Husband's maintenance obligation to Wife in accordance with this Court's opinion delivered June 21, 2016.6
(emphasis added). Accordingly, Barden II 's mandate constituted a remand with directions because it directed the trial court to take a specific action.
In Barden II , we found the trial court erred when it used stale evidence to determine Husband's maintenance obligation. Barden II ,
As we view our mandate in Barden II , the trial court's only task on remand was to determine the parties' current finances, and calculate Husband's maintenance and child support obligations accordingly. As discussed supra in Points I and IV, the trial court properly modified maintenance and child support in accordance with our mandate. However, the trial court then proceeded to deviate from our limited instructions when it reopened evidence and made additional findings outside the scope of our mandate. See Edmison v. Clarke ,
Accordingly, we reverse the trial court's findings abating child support for Emma between September 1, 2012 and February 28, 2013, and entering judgment in favor of Husband and against Wife in the amount of $1,000; abating child support for Emma between September 11, 2014 and May 31, 2016; and awarding Husband the dependency tax exemption for Sophie, as they exceeded the scope of our remand in Barden II . We remand to the trial court for those portions to be stricken from the judgment, and we affirm the judgment in all other respects.
Conclusion
We affirm the judgment as to Point I and IV, the modification of Husband's maintenance and child support obligations. We reverse the trial court's findings (1) abating child support for Emma between September 1, 2012 and February 28, 2013, and entering judgment in favor of Husband *596and against Wife in the amount of $1,000; (2) abating child support for Emma between September 11, 2014 and May 31, 2016; and (3) awarding Husband the dependency tax exemption for Sophie, as they exceeded the scope of our remand in Barden II . We remand to the trial court for those portions to be stricken from the judgment, and we affirm the judgment in all other respects.
Gary M. Gaertner, Jr., P.J., and Robert M. Clayton III, J., concur.
All further statutory references are to RSMo (2000), unless otherwise indicated.
A court is permitted to impute income to a spouse seeking maintenance based on what the spouse could earn by using her best efforts to gain employment suitable to her capabilities. Silverstein v. Silverstein ,
Wife did not raise the issue of whether the trial court erred in terminating Husband's obligation to assist in paying Emma's college expenses.
All rule references are to Missouri Supreme Court Rules (2015) unless otherwise indicated.
These factors include: (1) the financial needs and resources of the child; (2) the financial resources and needs of the parents; (3) the standard of living the child would have enjoyed had the marriage not been dissolved; (4) the physical and emotional condition of the child, and the child's educational needs; (5) the child's physical and legal custody arrangements, including the amount of time the child spends with each parent and the reasonable expenses associated with the custody or visitation arrangements; and (6) the reasonable work-related child care expenses of each parent. Section 452.340.1(1)-(6).
This Court also concluded in a footnote that "[t]he trial court's calculation of Husband's child support obligations pursuant to Missouri Supreme Court Rule 88.01 (2015) may need to be adjusted upon considering evidence of the parties' current finances." Barden II ,
On January 17, 2012, Husband filed a Motion for Family Access Order, alleging, inter alia , that Wife had, without good cause, denied or interfered with Husband's physical custody of Emma.