Bauer v. Bauer

28 S.W.3d 877, 2000 Mo. App. LEXIS 1449, 2000 WL 1459625
CourtMissouri Court of Appeals
DecidedOctober 3, 2000
DocketED 76387
StatusPublished
Cited by11 cases

This text of 28 S.W.3d 877 (Bauer v. Bauer) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bauer v. Bauer, 28 S.W.3d 877, 2000 Mo. App. LEXIS 1449, 2000 WL 1459625 (Mo. Ct. App. 2000).

Opinion

SHERRI B. SULLIVAN, Judge.

Lynn Willard Bauer (Husband) and Anita L. Bauer (Wife) each appeal from the trial court’s Order and Judgment Modifying Judgment of Decree of Dissolution and Determining Liability. We affirm in part and reverse in part.

The court dissolved the marriage of Husband and Wife on December 18, 1995. The dissolution decree awarded Husband and Wife joint legal custody and Wife primary physical custody of the parties’ two children (the children or Son and Daughter). Husband received temporary physical custody and visitation, including every other weekend, overnight on Thursdays, six weeks in summer, and every other holiday. At the time of the dissolution, Wife was employed through her personal business called “Basket of Bows,” earning a gross monthly income of $1,000. Wife reported her monthly expenses as $5,864. At the time of the dissolution, Husband was employed with the Henkel Corporation (Henkel), earning a gross monthly income of $5,400. Husband listed his monthly expenses as $2,635.11. After considering all the circumstances, the court ordered Husband to pay Wife maintenance of $400 per month, and child support of $1,187 per month. The court ordered Wife to pay the first $300 per year of medical expenses for the children, and any of the children’s uncovered medical expenses exceeding $300 per year were to be divided equally between the parties. The parties each received a 50% interest in the marital home. The court awarded Wife exclusive residence in the marital home until Daughter completed high school, then the home would be sold and the proceeds divided equally. The court ordered Wife to be responsible for repairs to the home under $500. The parties were ordered to share equally the expense of repairs exceeding $500.

Husband filed a Motion to Modify the Judgment, asking the court to terminate his maintenance obligation. Wife filed a response to the motion as well as a Motion to Determine Liability and to Modify the Judgment, asking the court to determine Husband’s liability for the mortgage and repair expenses relating to the marital residence, to increase Husband’s maintenance and child support obligations, and to modify the summer temporary custody provi *881 sions. The parties resolved the summer temporary custody issue before trial and a consent judgment was entered. Husband filed an amended motion asking the court to modify his child support obligation as well, and the case proceeded to trial.

The following evidence was adduced at trial. After dissolving her business subsequent to the marital dissolution, Wife was not employed from December 18, 1995, until October 26, 1998. On October 26, 1998, Wife became employed by the National Association of Electrical Distributors, and at the time of trial earned a gross monthly income of $5,000. Wife listed her monthly expenses in her Statement of Income and Expenses filed in January of 1998 as $7,749.16. Wife did not update the statement at the time of trial.

Wife testified that she did not seek employment immediately after the dissolution proceedings because: (1) she had to handle the winding down of Basket of Bows, and (2) she had to stay home with the children for a year after the divorce because they had emotional problems resulting from the divorce. Wife has a degree in Secondary Education and work experience in the commercial real estate business. In February 1997, Wife applied to a graduate program in social work at Washington University, and was denied admission in April of that year. Wife then enrolled at the University of Missouri, St. Louis, to take prerequisite classes for the masters program. Wife applied for a job in the commercial real estate business at Turley-Martin-Tucker approximately three months prior to the trial, and discussed employment at Wolken and Associates with Mr. Wolken around that time too.

Wife also became engaged during this period of time. Wife’s flaneé passed away before the trial. Wife received $45,550 from her fiancé for living expenses. Wife listed the money as a loan from her fiancé on her Statement of Property filed January 5,1998. Wife did not sign any promissory notes for money received from her fiancé until April 1998, eight months after Husband’s motion was filed.

Wife also testified that her job required a lot of travel, and therefore she would incur child care costs in order to have people stay with the children when she traveled on weekdays at a cost of $30 per day and weekends at a cost of $60 per day. Wife also testified the children had additional activities due to her work schedule.

At the time of trial, Husband was still employed by Henkel. The trial court relied on Husband’s 1997 W-2 form in finding that Husband earned a gross monthly income of $5,958. Wife contends that Husband’s monthly income was $7,167 in 1997. The trial court found, and Husband agreed, that Husband’s monthly expenses were $2,579. Husband had to sell two rental properties awarded to him by the decree, at a loss of $12,000 and $43,000, respectively.

The trial court entered its judgment on February 19, 1999. The trial court denied Husband’s motion to terminate the maintenance because it found that Wife still required maintenance because her monthly expenses exceeded her monthly income. Regarding child support, the trial court rejected both Husband’s and Wife’s calculations and completed its own Form 14 1 listing a new presumed child support amount of $1067. Since this amount did not differ from the original decree’s amount of $1187 by more than 20%, the court found there to be no substantial and continuing change in circumstances that would make the decree regarding child support unreasonable.

*882 Both parties filed motions to amend the judgment, which the trial court denied. Husband timely filed his appeal, and Wife timely filed her cross-appeal.

In his first point, Husband claims the trial court erred in failing to terminate Wife’s maintenance because Husband proved a substantial and continuing change in circumstances warranting termination. Husband submits a three-part argument in support of this point. Husband argues that the evidence showed that Wife’s only effort to find employment was discussions with two employers and one employment application three months pri- or to trial, Wife’s gross monthly income had increased by $4,000 while Husband’s gross monthly income had only increased by $558, and the trial court’s finding as to Wife’s reasonable expenses included unnecessary and inflated expenses as well as expenses that had been addressed in other provisions of the court’s order.

The Court of Appeals reviews an order modifying a divorce decree to determine whether the order is supported by substantial evidence, whether it is against the weight of the evidence, or whether it erroneously declares or applies the law. Welker v. Welker, 902 S.W.2d 865, 867 (Mo.App. E.D.1995). An award of maintenance will not be disturbed on appeal absent an abuse of discretion. Rios v. Rios, 935 S.W.2d 49, 52 (Mo.App. E.D.1996).

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Bluebook (online)
28 S.W.3d 877, 2000 Mo. App. LEXIS 1449, 2000 WL 1459625, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bauer-v-bauer-moctapp-2000.