Court of Appeals of Missouri, Eastern District, Third Division
THEODORE M. BARDEN, Respondent,
JILL L. BARDEN Appellant.
from the Circuit Court of St. Louis County Honorable Thomas
T. Quigless, J.
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.
the trial court exceeded the scope of this Court's
mandate in Barden v. Barden, 492 S.W.3d 641 (Mo.
App. E.D. 2016) when it abated Husband's child support
obligation for Emma and awarded Husband the dependency tax
exemption for Sophie, we reverse those portions of the trial
court's judgment and remand those issues with specific
instructions as set forth in this opinion. The trial
court's judgment as to the modification of Husband's
maintenance and child support obligations is affirmed.
and Procedural Background
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
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 employment. At the time of dissolution,
Husband earned approximately $260, 000 per year, including
commissions and bonuses, and Wife was unemployed.
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
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, 463 S.W.3d 799, 802 (Mo. App. E.D. 2015)
("Barden I"). On remand, this Court
specifically instructed the trial court to reconsider (1)
Husband's motion to modify maintenance, pursuant to the
statutory standard set forth in Section 452.370,
(2) Husband's obligation to pay for Emma's college
expenses in accordance with the factors set forth in
Forde v. Forde, 190 S.W.3d 521 (Mo. App. E.D. 2006).
Barden I, 463 S.W.3d at 805-07. The judgment was
affirmed in all other respects.
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. The trial court
ordered Husband pay Wife maintenance in the amount of $500
per month and child support in the amount of $720 per month.
The trial court made the maintenance and child support orders
retroactive to March 1, 2013. The trial court also terminated
Husband's duty to assist in paying Emma's college
again appealed, arguing the trial court erred by using stale
evidence to determine Husband's maintenance and child
support obligations. This Court reversed the trial court's
modification of Husband's maintenance obligation, and, on
remand, specifically instructed the trial court to consider
the parties' current financial information when
determining the appropriate amount of maintenance to award
Wife, in accordance with the remand in Barden I.
Barden v. Barden, 492 S.W.3d 641, 644 (Mo. App. E.D.
2016) ("Barden II"). This Court also noted
the trial court's calculation of Husband's child
support obligation may need to be adjusted upon considering
evidence of the parties' current finances. Id.
at 644 n.3.
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.
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.
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.
any court-tried case, we review a trial court's judgment
modifying a dissolution decree pursuant to Murphy v.
Carron, 536 S.W.2d 30 (Mo. banc 1976). Schneithorst
v. Schneithorst, 473 S.W.3d 239, 246 (Mo. App. E.D.
2015). Accordingly, we will affirm the trial court's
judgment unless it is not supported by substantial evidence,
it is against the weight of the evidence, or it erroneously
declares or applies the law. In re Marriage of
Graham, 87 S.W.3d 898, 900 (Mo. App. E.D. 2002).
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,
449 S.W.3d 793, 797 (Mo. App. W.D. 2014). We accept as true
the evidence and inferences favorable to the trial
court's judgment. Holtgrewe v. Holtgrewe, 231
S.W.3d 233, 235 (Mo. App. E.D. 2007).