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Barden v. Barden

Court of Appeals of Missouri, Eastern District, Third Division

March 10, 2015

THEODORE M. BARDEN, Respondent,
v.
JILL L. BARDEN, Appellant

Page 800

Appeal from the Circuit Court of St. Louis County. Honorable Thomas J. Frawley.

FOR APPELLANT: Robert N. Hamilton, John R. Fenley, Reinker, Hamilton & Piper, L.L.C., St. Louis, Missouri.

FOR RESPONDENT: Sylvia J. Pociask, Growe Eisen Karlen, Clayton, Missouri.

Kurt S. Odenwald, Presiding Judge. Robert G. Dowd, Jr., J., Concurs, Gary M. Gaertner, Jr., J., Concurs.

OPINION

Kurt S. Odenwald, Presiding Judge.

Page 801

Introduction

Appellant Jill Barden (" Wife" ) appeals from the judgment of the trial court modifying the dissolution decree dissolving her marriage to Respondent Theodore Barden (" Husband" ). Wife presents three points on appeal. First, Wife asserts that the trial court erred in terminating Husband's maintenance obligation solely due to Wife's post-dissolution conduct because a party's post-dissolution conduct is not a relevant factor under Section 452.370. Second, Wife contends that the trial court erred in terminating Husband's obligation to contribute toward the oldest child's college expenses because Husband offered to contribute and has the financial ability to do

Page 802

so. Finally, Wife avers that the trial court erred in concluding that certain fees received by Husband were not commissions and, therefore, Wife was not entitled a percentage of the fees pursuant to the dissolution decree.

Because the trial court misapplied the law when it terminated Husband's maintenance obligation and eliminated Husband's obligation to contribute toward his oldest child's college expenses, we reverse those portions of the trial court's judgment and remand those issues to the trial court for reconsideration in accordance with this opinion. The remainder of the trial court's judgment is affirmed.

Factual and Procedural Background

Husband and Wife were married on August 6, 1994. The parties have three children: Emma, Sophie, and Stella. On February 19, 2010, Husband filed a petition to dissolve his marriage to Wife. The parties settled the dissolution matter and on November 29, 2011, the trial court entered its judgment and decree of dissolution (" the dissolution decree" ). Husband and Wife were awarded joint legal and physical custody of the three children, with Wife designated as the residential parent for educational and mailing purposes.[1] Husband was ordered to pay Wife $1,383.00 per month in child support and to maintain a health benefit plan for the children. The dissolution decree also ordered Husband to pay 60% of the cost for each child to attend college, not to exceed the costs at the University of Missouri-Columbia. The dissolution decree further ordered Husband to pay Wife $1,875 per month for her maintenance and support, plus 35% of any gross commissions and/or bonuses he received.

On January 17, 2012, Husband filed a motion for family access alleging that Wife was interfering with the exercise of his physical custody rights under the dissolution decree. Husband claimed that he had not seen or spoken to Emma, the parties' oldest daughter, in several months, and that Wife was not actively encouraging Emma to follow the physical custody schedule set forth in the dissolution decree.[2] The trial court granted Husband's motion in part, modifying the physical custody schedule with respect to Emma. Under the amended schedule, Emma was only required to meet Husband for lunch every other Saturday from 12:00 p.m. to 2:00 p.m.

On August 7, 2012, Husband filed a second motion for family access again alleging that Wife was interfering with the exercise of his physical custody rights under the dissolution decree. The second motion concerned Sophie and Stella and their failure to follow the court-ordered custody schedule. The trial court granted Husband's motion in part, awarding him additional custody time during Sophie and Stella's spring ...


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