In the Missouri Court of Appeals Eastern District DIVISION FOUR
GREGORY TILLETT, ) No. ED107965 ) Appellant, ) Appeal from the Circuit Court of ) the St. Louis County vs. ) 2105FC-03561-01 ) MARGARET TILLETT, ) Honorable John R. Essner ) Respondent. ) Filed: August 4, 2020 James M. Dowd, P.J., Gary M. Gaertner, Jr., J., and Robin Ransom, J.
OPINION
Gregory Tillett (“Husband”) appeals the trial court’s judgment entered on Husband’s
motion to modify his on-going maintenance obligation to Margaret Tillett (“Wife”) in which the
court reduced Husband’s monthly obligation from $2,470 per month to $1,500 per month.
Husband sought to eliminate his maintenance obligation entirely based on his argument that the
court should have imputed substantial income to Wife because, according to Husband’s expert
witness, she was still employable after her retirement in 2012. We affirm.
Background
The marriage between the parties was dissolved on November 8, 2005. Pursuant to the
judgment of dissolution, Husband was ordered to pay Wife $2,470 per month in modifiable
maintenance and to maintain at his expense a $200,000 life insurance policy with Wife as the
beneficiary. In June 2017, Husband filed his motion to modify seeking to eliminate, or at least to
reduce, his maintenance obligation and also to eliminate his duty to maintain the life insurance
policy. Husband alleged there had been substantial and continuing changes since the entry of the
dissolution judgment. He argued that his income had decreased and that Wife had not made
reasonable efforts to become self-sufficient since her 2012 retirement. Husband’s motion to
modify was heard on October 16, 2018. The parties filed their proposed findings and
conclusions on November 19, 2018 and the matter was taken under submission.
Before the parties’ divorce, Wife was employed at a doctor’s office as an office manager
and then at a fire department as an administrator. After the divorce, Wife was employed by the
financial services company Edward Jones for 5 years. Wife voluntarily left her employment at
Edward Jones at the end of 2012 in order to have knee replacement surgery. She then decided to
retire due to continuing health challenges and her desire to spend more time with her family.
At trial, Wife testified that since her retirement in 2012, she had not sought employment.
However, Wife presented evidence that she had made efforts to become self-sufficient by
reducing her expenses. Wife also presented evidence regarding her on-going health issues
including her knee replacement surgery, as well as a lengthy history of arthritis-related ailments
which she claims contributed to her decision to not seek further employment.
For his part, Husband relied on the expert witness testimony of Timothy Lalk, a certified
rehabilitation counselor, who opined regarding Wife’s employability and potential earning
capacity. Lalk testified that he found no impediment to Wife’s becoming employed and he
identified numerous positions that would accommodate Wife’s arthritis-related difficulties. Lalk
stated that the annual salary range of these positions was $20,800 to $31,200, with an average of
$23,477.
2 On February 4, 2019, the trial court entered its judgment reducing to $1,500 Husband’s
maintenance obligation because the court found that Wife remained unable to provide for her
reasonable needs from her current income. The court rejected Husband’s claim that income
should be imputed to Wife because she could and should still be working finding that Wife’s
decision to retire was appropriate given her age (65 at the time of trial) and her on-going health
issues. Thus, the court was unpersuaded by Husband’s expert’s testimony concerning Wife’s
continued employability and earning capacity. The court also ordered that Husband shall remain
obligated to maintain a $200,000 life insurance policy with Wife as the beneficiary.
After the trial court denied Husband’s motion for new trial and alternative motion to
amend the judgment, this appeal follows.
Standard of Review
A trial court has broad discretion in an action to terminate or modify spousal
maintenance, and its decision will not be overturned absent an abuse of discretion. Conrad-
Nuestadter v. Nuestadter, 340 S.W.3d 660, 662 (Mo. App. W.D. 2011); see also Murphy v.
Caron, 536 S.W.2d 30, 32 (Mo. banc 1976). Modification of a maintenance award must be
affirmed unless there is no substantial evidence to support it, it is against the weight of the
evidence, or it erroneously declares or applies the law. Nuestadter, 340 S.W.3d at 662; see also
In re Marriage of Lindhorst, 347 S.W.3d 474, 476 (Mo. banc 2011). The evidence, and all
reasonable inferences therefrom, is viewed in the light most favorable to the trial court’s
judgment. Borchardt v. Borchardt, 496 S.W.3d 635, 638 (Mo. App. E.D. 2016) (quoting
Delsing v. Delsing, 409 S.W.3d 574, 577 (Mo. App. E.D. 2013)).
3 Discussion
I. The trial court’s decision to reduce Husband’s maintenance obligation from $2,470
to $1,500 per month was supported by substantial evidence, was in accordance with
Missouri law, and was not an abuse of discretion.
In his sole point on appeal, Husband argues that the trial court abused its discretion and
erroneously applied Missouri law by failing to eliminate entirely his maintenance obligation
because he claims that since Wife could have and should have continued to work after 2012, the
court should have imputed substantial income to her.
Pursuant to § 452.370,1 a trial court may modify maintenance upon a showing of changed
circumstances so substantial and continuing as to make the terms of the original maintenance
order unreasonable. Borchardt, 496 S.W.3d at 640; see also Stine v. Stine, 401 S.W.3d 567, 569
(Mo. App. E.D. 2013). In determining whether a substantial change in circumstances has
occurred, the court shall consider all financial resources of both parties, including the extent to
which a party’s reasonable expenses are, or should be, shared with a spouse or other person with
whom the party cohabits, and the earning capacity of a party who is not employed. Borchardt,
496 S.W.3d at 640. A change in circumstances warranting modification exists where the obligor
spouse is unable to pay maintenance at the assigned rate, or where the recipient of the support
could meet their reasonable needs with a lesser amount of maintenance. Id. at 641 (citing
Rustemeyer v. Rustemeyer, 148 S.W.3d 867, 871 (Mo. App. E.D. 2004)). The party moving for
modification bears the burden of proving, through detailed evidence, that such a substantial and
continuing change has occurred. Sprouse v. Sprouse, 969 S.W. 2d 836, 838 (Mo. App. W.D.
1998).
1 All statutory references are to RSMo 2016 unless otherwise indicated.
4 Generally, a maintenance recipient is under a continuing duty to exert reasonable efforts
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In the Missouri Court of Appeals Eastern District DIVISION FOUR
GREGORY TILLETT, ) No. ED107965 ) Appellant, ) Appeal from the Circuit Court of ) the St. Louis County vs. ) 2105FC-03561-01 ) MARGARET TILLETT, ) Honorable John R. Essner ) Respondent. ) Filed: August 4, 2020 James M. Dowd, P.J., Gary M. Gaertner, Jr., J., and Robin Ransom, J.
OPINION
Gregory Tillett (“Husband”) appeals the trial court’s judgment entered on Husband’s
motion to modify his on-going maintenance obligation to Margaret Tillett (“Wife”) in which the
court reduced Husband’s monthly obligation from $2,470 per month to $1,500 per month.
Husband sought to eliminate his maintenance obligation entirely based on his argument that the
court should have imputed substantial income to Wife because, according to Husband’s expert
witness, she was still employable after her retirement in 2012. We affirm.
Background
The marriage between the parties was dissolved on November 8, 2005. Pursuant to the
judgment of dissolution, Husband was ordered to pay Wife $2,470 per month in modifiable
maintenance and to maintain at his expense a $200,000 life insurance policy with Wife as the
beneficiary. In June 2017, Husband filed his motion to modify seeking to eliminate, or at least to
reduce, his maintenance obligation and also to eliminate his duty to maintain the life insurance
policy. Husband alleged there had been substantial and continuing changes since the entry of the
dissolution judgment. He argued that his income had decreased and that Wife had not made
reasonable efforts to become self-sufficient since her 2012 retirement. Husband’s motion to
modify was heard on October 16, 2018. The parties filed their proposed findings and
conclusions on November 19, 2018 and the matter was taken under submission.
Before the parties’ divorce, Wife was employed at a doctor’s office as an office manager
and then at a fire department as an administrator. After the divorce, Wife was employed by the
financial services company Edward Jones for 5 years. Wife voluntarily left her employment at
Edward Jones at the end of 2012 in order to have knee replacement surgery. She then decided to
retire due to continuing health challenges and her desire to spend more time with her family.
At trial, Wife testified that since her retirement in 2012, she had not sought employment.
However, Wife presented evidence that she had made efforts to become self-sufficient by
reducing her expenses. Wife also presented evidence regarding her on-going health issues
including her knee replacement surgery, as well as a lengthy history of arthritis-related ailments
which she claims contributed to her decision to not seek further employment.
For his part, Husband relied on the expert witness testimony of Timothy Lalk, a certified
rehabilitation counselor, who opined regarding Wife’s employability and potential earning
capacity. Lalk testified that he found no impediment to Wife’s becoming employed and he
identified numerous positions that would accommodate Wife’s arthritis-related difficulties. Lalk
stated that the annual salary range of these positions was $20,800 to $31,200, with an average of
$23,477.
2 On February 4, 2019, the trial court entered its judgment reducing to $1,500 Husband’s
maintenance obligation because the court found that Wife remained unable to provide for her
reasonable needs from her current income. The court rejected Husband’s claim that income
should be imputed to Wife because she could and should still be working finding that Wife’s
decision to retire was appropriate given her age (65 at the time of trial) and her on-going health
issues. Thus, the court was unpersuaded by Husband’s expert’s testimony concerning Wife’s
continued employability and earning capacity. The court also ordered that Husband shall remain
obligated to maintain a $200,000 life insurance policy with Wife as the beneficiary.
After the trial court denied Husband’s motion for new trial and alternative motion to
amend the judgment, this appeal follows.
Standard of Review
A trial court has broad discretion in an action to terminate or modify spousal
maintenance, and its decision will not be overturned absent an abuse of discretion. Conrad-
Nuestadter v. Nuestadter, 340 S.W.3d 660, 662 (Mo. App. W.D. 2011); see also Murphy v.
Caron, 536 S.W.2d 30, 32 (Mo. banc 1976). Modification of a maintenance award must be
affirmed unless there is no substantial evidence to support it, it is against the weight of the
evidence, or it erroneously declares or applies the law. Nuestadter, 340 S.W.3d at 662; see also
In re Marriage of Lindhorst, 347 S.W.3d 474, 476 (Mo. banc 2011). The evidence, and all
reasonable inferences therefrom, is viewed in the light most favorable to the trial court’s
judgment. Borchardt v. Borchardt, 496 S.W.3d 635, 638 (Mo. App. E.D. 2016) (quoting
Delsing v. Delsing, 409 S.W.3d 574, 577 (Mo. App. E.D. 2013)).
3 Discussion
I. The trial court’s decision to reduce Husband’s maintenance obligation from $2,470
to $1,500 per month was supported by substantial evidence, was in accordance with
Missouri law, and was not an abuse of discretion.
In his sole point on appeal, Husband argues that the trial court abused its discretion and
erroneously applied Missouri law by failing to eliminate entirely his maintenance obligation
because he claims that since Wife could have and should have continued to work after 2012, the
court should have imputed substantial income to her.
Pursuant to § 452.370,1 a trial court may modify maintenance upon a showing of changed
circumstances so substantial and continuing as to make the terms of the original maintenance
order unreasonable. Borchardt, 496 S.W.3d at 640; see also Stine v. Stine, 401 S.W.3d 567, 569
(Mo. App. E.D. 2013). In determining whether a substantial change in circumstances has
occurred, the court shall consider all financial resources of both parties, including the extent to
which a party’s reasonable expenses are, or should be, shared with a spouse or other person with
whom the party cohabits, and the earning capacity of a party who is not employed. Borchardt,
496 S.W.3d at 640. A change in circumstances warranting modification exists where the obligor
spouse is unable to pay maintenance at the assigned rate, or where the recipient of the support
could meet their reasonable needs with a lesser amount of maintenance. Id. at 641 (citing
Rustemeyer v. Rustemeyer, 148 S.W.3d 867, 871 (Mo. App. E.D. 2004)). The party moving for
modification bears the burden of proving, through detailed evidence, that such a substantial and
continuing change has occurred. Sprouse v. Sprouse, 969 S.W. 2d 836, 838 (Mo. App. W.D.
1998).
1 All statutory references are to RSMo 2016 unless otherwise indicated.
4 Generally, a maintenance recipient is under a continuing duty to exert reasonable efforts
to attain self-sufficiency, and will not be permitted to benefit from inaction. Markowski v.
Markowski, 736 S.W.2d 463, 466 (Mo. App. W.D. 1987). The failure of a supported spouse to
make a good faith effort to seek employment and achieve financial independence within a
reasonable time may warrant modifying the maintenance award by imputing income to that
spouse. Id. While we recognize this affirmative obligation to seek employment, the duty of a
maintenance recipient is to expend a good faith effort to reduce or eliminate the need for
maintenance, but not necessarily to succeed in doing so. Id.
Additionally, and perhaps most relevant to the matter at hand, while an involuntary
retirement may prove changed circumstances, a voluntary loss of employment alone is not
sufficient to require modification. Sprouse, 969 S.W.2d at 838 (citing Leslie v. Leslie, 827
S.W.2d 180, 183 (Mo. banc 1992)); see also Borchardt, 496 S.W.3d at 641.
We now turn to Husband’s main point of error—that the trial court should have imputed
income to Wife because she voluntarily retired even though she was still employable according
to Husband’s expert witness. We disagree.
As part of its broad discretion regarding maintenance issues, the trial court here had
discretion to determine whether to impute income to Wife and we will not reverse the court’s
determination absent a manifest abuse of that discretion. Stine, 401 S.W.3d at 567. The trial
court’s judgment is presumed valid and the appellant bears the burden of proving that the
judgment is incorrect. Id. at 569.
The record here supports the trial court’s decisions to continue Husband’s maintenance
obligation albeit at a lower amount and to refuse to impute income to Wife. The record shows
that Wife remained employed for at least 5 years after dissolution and that she made a good faith
5 effort to establish self-sufficiency and financial independence by lowering her own personal
expenses. The record also shows that Wife retired at an appropriate age and that she did so for
legitimate reasons. Wife’s extensive medical records, as well as Wife’s own testimony regarding
her ability to work, or lack thereof, and her desire to spend more time with her family support the
finding that Wife voluntarily retired on reasonable grounds.
While we acknowledge the testimony of Husband’s expert witness regarding Wife’s
employability and earning capacity, it was within the trial court’s discretion to disregard that
testimony given the substantial evidence supporting the trial court’s decision including Wife’s
age and her significant medical challenges.
Therefore, we find the evidence in the record is sufficient to demonstrate that Wife made
a good faith effort to seek financial independence post dissolution and that her subsequent
retirement at an appropriate age does not justify imputation of income or the termination of her
maintenance award. Husband has failed to meet his burden to show that a substantial and
continuing change sufficient to warrant termination of maintenance has occurred. The evidence
and legitimate reasons provided by Wife for her voluntary retirement support the trial court’s
determination that modification, not termination, of her maintenance award was proper. Point I
is denied.
Conclusion For the reasons set forth above, we affirm the judgment of the trial court.
James M. Dowd, Presiding Judge
Gary M. Gaertner, Jr., J., and Robin Ransom, J., concur.