McHugh v. Slomka

531 S.W.3d 588
CourtMissouri Court of Appeals
DecidedAugust 8, 2017
DocketED 103543
StatusPublished
Cited by3 cases

This text of 531 S.W.3d 588 (McHugh v. Slomka) 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
McHugh v. Slomka, 531 S.W.3d 588 (Mo. Ct. App. 2017).

Opinion

Lisa P. Page, Judge

Elizabeth Slomka (“Wife”) appeals from the modification court’s judgment modifying a dissolution judgment between her and her former husband, Daniel McHugh (“Husband”). We reverse and remand in part and affirm in part, with instructions.

BACKGROUND

Husband and Wife- were married in Marion County, Indiana in May 1989. During the majority of their marriage Wife was not employed outside the home, and was the primary caregiver of the parties’ three minor children (ages 15, 15, and 13 at the time the1 “Modification Judgment” was entered). For twenty years of their marriage, Husband was employed in various positions by the same large corporation in both Chicago and St. Louis. Eventually, he was promoted to Vice-President of Entertainment Marketing, earning, approximately $250,000 per year as a base salary, plus annual bonuses of between $37,500 and $62,500. In 2009, Husband’s employment was terminated due to an affair with a co-worker (“Paramour”).

In May 2010, Husband filed a Petition for Dissolution of Marriage in the Circuit Court of the City of St. Louis. Pursuant to a settlement agreement, a Dissolution Decree was entered in February 2011, dissolving the parties’ marriage. The Dissolution Decree incorporated a Marital Separation Agreement (“MSA”) and a Parenting Plan (collectively, the “Dissolution Judgment”).

The Dissolution Judgment awarded sole physical custody'of the children to Wife. The parties were awarded joint legal custody, however Wife was granted the authority to make final decisions in the event of a disagreement. Husband was ordered to pay Wife the sum of $1,300 per month in child support for three children.1 Each party was ordered to satisfy their own attorney’s fees.

The specific terms, of the, MSA ordered the 5500 square-foot marital-home be sold. Additionally, the MSA addressed maintenance as follows:

a. Terms of Payment and Duration. It is reasonable for and [Husband] shall pay to [Wife] the sum ■ of $2,000, per month as and for modifiable maintenance...,,
⅜ * ⅝ „ ■
b.’ The parties. understand that they are unable to maintain the standard of living during the marriage because [Husband] is unemployed. The parties understand that this amount is modifiable once [Husband] becomes employed...1.

The parties agreed in the Parenting Plan that Husband would reimburse Wife for: (1) 60% of the children’s unreimbursed medical expenses, (2) 50% of the children’s educational and extraordinary expenses “incurred by agreement in writing by the parties,” and (3) 50% of the private school cost for their youngest daughter, up to $2,000 per year. In regard to extraordi[592]*592nary expenses, the MSA stated that “in the event the parties do not agree on the expense, the parent enrolling the children in the activity shall be responsible for 100% of the expense.”

■ In June 2011, Husband accepted employment with a company in Pittsburgh, earning approximately $185,000 per year. Thereafter, in March 2012, Husband accepted employment with a different company located in California. Accordingly, Husband and Paramour (to whom he is now married) moved to Venice Beach, where Husband’s annual salary is $307,000 per year; Husband also received a $100,000 bonus in 2013. Together, Husband and Paramour enjoy a lucrative household income of approximately $550,000 per year.

Conversely, in August 2011, Wife and the threé children moved to Indianapolis, Indiana to reside with her parents. Wife testified that the impetus for her move and co-habitation with her parents (both of whom are in their mid-seventies) was out of “necessity,” because the marital home was sold and Wife did not have family residing in the St. Louis area. Wife testified that, them residency with her parents was intended to be “temporary.” Wife also testified that she has pursued employment opportunities in Indianapolis; however, Wife has only been able to secure one part-time position for eight months, at $13 per hour. Since the dissolution, Wife has continued in her role as the primary care-givér of the parties’ three children.

In October 2012, Wife filed a motion to modify the Dissolution Judgment, seeking an increase in maintenance and child support, reimbursement of medical, educational, and extraordinary expenses, and attorney’s fees. Husband filed a counter-motion to modify, seeking a reduction in maintenance, as well as, á revision of the joint legal custody provision. .

On June 2, 2015, after a two day trial, the court entered a Modification Judgment, decreasing Husband’s maintenance to $1,000 per month and increasing child support to $3,169 per month for three children. The court denied Wife’s requests for expenses and attorney’s fees, and removed Wife’s authority to make final decisions for the children. •

This appeal follows.

DISCUSSION

Wife submits five points on appeal, contending that the modification court erred in: (I) reducing, rather that increasing, Wife’s maintenance; (II) calculating the proper amount of child support; (III) failing to order Husband to reimburse Wife for the children’s various educational, extracurricular, and medical expenses; (IV) removing the legal custody provision providing Wife the authority to make final decisions; and (V) failing to order Husband to pay Wife’s attorney’s fees incurred during the modification proceedings.

Standard of Review

Our review of the modification judgment is limited to whether it is supported by substantial evidence, is against the weight of the evidence, or erroneously declares or misapplies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Nichols v. Nichols, 14 S.W.3d 630, 634 (Mo. App. E.D. 2000). The evidence, and all reasonable inferences therefrom, is viewed in the light most favorable to the judgment. Id.

Point I—The Parties Agreed to Increase Maintenance

In her first point on appeal, Wife contends the modification court erred in decreasing maintenance because, pursuant to the terms of the MSA, the parties agreed to increase the amount of maintenance awarded to Wife if Husband gained employment that would support their standard of living during the marriage. We agree.

[593]*593A. The Modification Court Erred in Ignoring the MSA

Separation agreement decretal maintenance is “agreed to by the parties and incorporated into the dissolution decree.” Barbeau v. Barbeau, 72 S.W.3d 227, 229 (Mo. App. E.D. 2002); Section 452.325.1.2 When so incorporated, this type of maintenance becomes part of the court’s judgment, and is binding upon and enforceable by the court. Section 452.325.2; Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 391-92 (Mo. banc 2001) (Incorporation allowed so long as the agreement is not unconscionable).

When interpreting a marital separation agreement, the normal rules of contract construction apply. Daily v. Daily, 912 S.W.2d 110, 114 (Mo. App. W.D. 1995).

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Cite This Page — Counsel Stack

Bluebook (online)
531 S.W.3d 588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mchugh-v-slomka-moctapp-2017.