 

In the Missotlri Conrt of Appeals

Eastemt District

DIVISION THREE
FREDERICK M. BORCHARDT, No. ED103035

Respondent, Appeal from the Circuit Court of

)
)
)
) the City of St. Louis, Missouri
vs. ) 22983-00058~05
LlNDA S. BORCHARDT, g Hoiiorable Thontas J. Frawley
Appellant. § Filed: May 24, 2016
OPINION
Linda S. Borcliardt ("Wife") appeals the trial court’s judgment modifying the
amount of maintenance she receives from her ex-liusbalid Frederick M. Borcliardt
("Husbaiid"). For the reasons that follow, we affirm.
Facts and Procedural History
Husband and Wife were married in 1973, separated in 1997, and divorced in
1999. During the niarriage, Htlsband worked as a certified public accountant (CPA) for
the accounting firm KPMG. While Wife did not work outside the home during the
iiiarriage, she obtained a master’s degree in pastoral studies in 1996 and at the time of the
dissolution was completing an internship to become certified as a chaplain The parties’
three children from the lnarriage were adults at the time of the divorce.

Pursuant to the judgment of dissolution, Husband was ordered to pay Wife $3,500

per month in maintenance and to maintain a $100,000 life insurance policy on himself

with Wife designated as the beneficiary as long as Husband’s maintenance obligation
remained in place. The inarital residence was awarded to Wife and Husband was ordered
to make the inortgage payments so long as both parties were alive, Wife remained
unmarried, Wife continued occupying the property as her principal residence, and Wife
did not sell the liorne. Each spouse was awarded fifty percent of the portion of
Httsbaiid’s KPMG Peat Marwick Retirenient Allowance Plan (RAP) that was deemed to
be inarital property.

Husband remarried in 1999 and has four children with his current spouse. Wife
has remained ttnmarried and continues to live in the marital home. In l999, Wife started
working as a pastoral minister and has been employed at Saint Anselm church for almost
eleven years. Wife currently has gross wages of over $3,700 per month from her job at
Saint Ariselm.

ln 2001, KPMG announced that the RAP would be distributed to its partners,
including Husband. Husband received approximately 75% of the value of his RAP
account in a lump sum. The remaining 25% was to be paid to Husband as an annuity for
his lifetime upon termination of his service at KPMG.

In 2005, Wife filed a motion to modify requesting an increase in maintenance
Husband opposed the motion and filed a motion to reduce the maintenance award. in
2006, the court modified the judgment of dissolution In relevant pait, the amount of
inailttenairce Husband was required to pay Wife was reduced from $3,500 to $1,800 per

month. The parties agreed not to appeal the 2006 modification judgment

We disagree with Wife’s argument that the trial court misapplied the law by
including the $922 monthly payment Wife receives, which derives from Husband’s
annuity, because doing so required her to consume her retirement assets to meet her
reasonable needs. Wliile it is true that a spouse is not required to consume his or her
apportioned share of niaritai property in order to be entitled to retain an award of
inaiiiteiiance, Le.s'lz'e, 827 S.W.?.d at 183, Wife has failed to show that she is required to
consume her rnarital property to meet her “reasonable" needs and has not met her burden
of showing that the trial court’s judgment is incorrect. Furthermore, it was within the
trial court’s discretion to impute the $922 payment as part of Wife’s income, especially
considering that this income was readily available and was being paid to Wife on a
inonthly basis. H:'Il, 53 S.W.?>d at 115-17. Points II, III, and IV are denied.

V. The trial court did not abuse its discretion in failing to a\vard Wife

attorney’s fees.

ln point V, Wife contends that the trial court abused its discretion in failing to
award her some or all of her attorney’s fees because Husband caused Wife to incur fees
for an improper discovery expedition and in having their marital hoine’s mortgage
refinanced Further, Wife contends that she should have been awarded fees because
Husband has a greater ability to pay and without an award she will have to use her
retirement assets to pay those fees.

Parties to domestic relations cases generally are responsible for paying their own
attorney’s fees. Goins v. Goin.r, 406 S.W.$d 836, 891 (Mo.banc 2013). Section
452.355.1, llowever, authorizes the circuit court to award attorney’s fees after considering

the financial resources of both parties, the merits of the case, and the actions of the parties

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during the proceedings. The fact that one party’s income exceeds the other’s income
does not compel an award of attorney’s fees. Adarns v, Ada))rs, 5l S.W.3d 541, 549
(Mo.App.W.D. 2001). The trial court has broad discretion in awarding attorney’s fees
and its ruling is presumptively correct. l’d.

An appellate court will reverse a trial court’s award of attorney’s fees pursuant to
section 452.355.1 only if the trial court abuses its discretion. Aubuciron v. Hale, 453
S.W.3d 318, 325 (Mo.App.E.D. 2014). To demonstrate an abuse of discretion, the
complaining party must prove that the award is clearly against the logic of the
circumstances and so arbitrary and unreasonable as to shock one’s sense of justice. Id.

Here, the trial court found that each party had sufficient funds to pay their own
attorney’s fees and ordered each party to pay their own fees. Based on our standard of
review, after our review of the record, we cannot find that the trial court abused its
discretion in ordering each party to pay their own fees. Wliile Husband may have more
funds than Wife, the trial court found Wife had sufficient funds of her own to pay her
attorney’s fees and Wife has failed to overcome the presumption that the trial court’s
decision is correct. Point V is denied.

VI. Husband’s motion for attorney’s fees on appeal is denied.

Firially, Hnsband filed a motion for attorney’s fees on appeal pursuant to section
452.355. Wliile we generally have authority to enter an award of attorney’s fees on
appeal, Goins, 406 S.W.3d at 890 n,i, the circuit court has exclusive jurisdiction to
consider and award attorney’s fees pursuant to section 452.355, id. at 889-90. Thus, we
deny Husband’s motion for lack of jurisdiction. To any extent Husbaiid’s request is

beyond section 452.355, we deny that request as well.

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C0ncl11si0n

For the reasons stated above, the tria collrt’s jud ment ' aff]rmed.

 

Robert M. Clayton, III P.J. and
Lawrence E. Mooney, J., concur.

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in September 2010, Husband turned sixty years old and retired from KPMG
pursuant to the KPMG partnership agreement mandatory retirement provision. Since his
retirement, Husband has not maintained his CPA license.

In 2011, Wife again moved to modify the judgment As a result, the court ordered
Husband to pay Wife $922 per month as her inarital portion of the 25% remaining
balance front his RAP account which Husband elected to take as an annuity upon his
retirement

In April 2012, Husband filed the motion to modify at issue on this appeal.
Husband requested that the court terminate his obligation to pay Wife $1,800 per month
in lnainteiiaiice and the requirement that he maintain a $100,000 life insurance policy
with Wife as the designated beneficiary.

The matter was heard in November 2()14. At the time of the liearing, I~Iusband
and Wife were both sixty-four years old. In April 2015, the court issued its judgment.
The court found a substantial and continuing change in circumstances since the
modification of the judgment of dissolution of iiiarriage and granted Hnsband’s motion to
inoclify, terminating Husband’s $I,SOO per month rnaintenairce obligation and the
requirement to carry the $100,000 life insurance policy. This appeal follows.

Standard of Review

fn a court-tried case, we affirm the judgment of the trial court unless it is not
supported by substantial evidence, is against the weight of the evidence, or it erroneously
declares or applies the law. Mzuy)hy v. Carron, 536 S.W.Zd 30, 32 (Mo.banc 1976). The
evidence, and all reasonabie inferences therefrom, is viewed in the light most favorable to

the judgment Delsing v. Delsz'ng, 409 S.W.3d 574, 577 (Mo.App.E.D. 2013).

Discussion

I. Wifc failed to preserve her allegation of error relating to the trial

court’s purported failure to make certain findings of fact.

In point I, Wife contends that the trial court erred by failing to make specific
findings of fact regarding Htlsbaiid’s right and obligation to retire and the amounts of
Wife’s reasonable expenses because Husband had requested that those findings be made.
Because Wife failed to preserve this allegation of error by raising it in a motion to amend
the judgment, point l is denied.

Tlie Missouri Constitution provides that the Missouri Suprenie Court may
establish rules relating to the practice, procedure, and pleading for ali courts and
administrative tribunals, which shall have the force and effect of law. MO. CONST. art.
V., § 5; see also § 477.010.1 Missouri Supreme Court Rules are to be given the same
effect as statutes so long as they are not in conflict. Gil!ispie v. Rice, 224 S.W.3d 608,
612 (Mo.App.W.D. 2006).

Cotuts interpret Supreme Court Rules by applying principles similar to those used
for state statutes State ex. rel. Vee-Jay Com‘)'actir)g Co. v. Neill, 89 S.W.3d 470, 471-72
(Mo.banc 2002). The Court’s intent is determined by considering the plain and ordinary

meaning of the words in the Rule. Id. at 472.

1 All references to statutes are to RSl\/Io 2000 unless otherwise indicated

Rule 73.()12 provides that if a party requests, the court shall file a brief opinion
containing findings on the controverted material fact issues in the case as specified by the
party requesting the findings. Rule 78.07(€) requires that in order to preserve allegations
of error relating to the form or language of the judgment for appellate review, including
the failure to make statutorily required findings, a party must raise the allegations in a
motion to amend the judgrnent. 'i`he purpose of Rule 78.07(c) is to ensure that
complaints about the form and language of judgments are brought to the attention of the
trial court where they can be easily corrected, alleviating needless appeals, reversals, and
lieariltgs. Ruth ex rel. Axe v. Rulvl, 401 S.W.Bd 553, 557 (Mo.App.W.D. 2013).

Here, Wife did not file a motion to amend the judgment She contends, lrowever,
that she did not have to file a motion to amend because her allegations of error do not
relate to statutorily required findings, but rather relate to findings requested by a party.
We disagree with Wife’s assertion that she was not required to file a motion to amend in
order to preserve her allegations of error with respect to the alleged failure of the court to
make certain findings of fact.

First, Rule 78.07(c)’s preservation of error dictates are not limited to statutorily
required findings alone. Rule 78.07(0) requires a motion to amend thejudgnient in all
cases for allegations of error relating to the "form or the language of the judgrnent." 'i`he
failure to make findings pursuant to Rule 73.01 relates to the "forrn or language of the
judgment."

Furtliermore, the failure of the trial court to issue properly requested findings

requires reversal only when the trial court’s failure to issue the requested findings

2 All references to rules are to the Missouri Suprenre Court Rules 2015 unless otherwise
indicated.

materially interferes with appellate review. Colzen v. Cohen, 178 S.W.3d 656, 662
(Mo.App.W.D. 2005). 'l`o the extent that the trial court failed to issue any requested
factual fmdings, it has not rnaterially interfered with our review because the record is
sufficient to support the judgment Id. Point l is denied.

II. Tl1e trial court did not erroneously apply the law in modifying Wife’s
maintenance a\vard, its judgment is not against the weight of the
evidence, and the judgment is supported by substantial evidence.

in points Il, III, and IV, Wife contends that the trial court erred by modifying the
rnaintenance award without proof of a substantial change in circumstances or any change
rendering the previously existing maintenance order unreasonable Wife uses these two
allegations of error to argue in each respective point that the trial court’s judgment
erroneously applied the law, is against the weight of the evidence, and that the judgment
is not supported by substantial evidence. Ftlrtlier, in point H, Wife contends that the trial
court erroneously applied the law by including in Wife’s income her $922 per month
payment from Husband’s RAP annuity. For ease of analysis, we address these points
together.

Maintenance is founded on the need for reasonable support by one spouse front
the other after the disruption of the inarriage, and a maintenance award may extend only
so long as the need exists. Cates v. Cates, 819 S.W.Zd 731, 734»35 (Mo.banc 1991).
Thus, maintenance is issued only for support until the dependent spouse achieves a
reasonable level of self~sufficiellcy. Id. at 735. Maintenance should not be awarded for
the purposes of building an estate or the accumulation of capital Hill v. Hill, 53 S.W.3d

ll4, 116 (Mo.baric 2001).

A court may grant a 1naintenance order only if it finds that the spouse seeking
irrailitelialice: l) lacks sufficient property, including marital property apportioned to him
or her, to provide for his or her reasonable needs; and 2) is unable to support him- or
herself through appropriate employment. § 452.335.1. The maintenance order shall be in
such amounts and for such periods of time as the court deems just, after considering all
relevant factors including: 1) the financial resources of the parties, including Inarital
property apportioned to him or her, and his or her ability to meet his or needs
independently; 2) the time necessary to acquire sufficient education or training to enabie
the party seeking maintenance to find appropriate employment; 3) the comparative
earning capacity of each spouse; 4) the standard of living established during the marriage;
5) the obligations and assets, including the inarital property apportioned to him or her and
the separate property of each party; 6) the duration of the marriage; 7) the age, and the
physical and emotional condition of the spouse seeking inaintenance; 8) the ability of the
spouse from whom inaintenance is sought to meet his or her needs while meeting
inainteiiance; 9) the conduct of the parties during the marriage; and 10) any other relevant
factors § 452.335.2.

Pursuant to section 452.370.1, the trial court may modify maintenance upon a
showing of changed circumstances so substantial and continuing as to make the terms of
the maintenance order unreasonable in determining whether a substantial change in
circumstances has occurred, the court shall consider ali financial resources of both
parties, including the extent to which a party’s reasonable expenses are shared, or should
be, with a spouse or other person with whom the party cohabits, and the earning capacity

of a party who is not employed Id_ While the burden to show changed circumstances is

on the party seeking rnoditication, we presume that the trial court’s judgment is valid and
the appellant has the burden of proving that the judgment is incorrect P:`e)'ce v. Pier'ce,
215 S.W.Sd 263, 265 (Mo.App.S.D. 2007).

A change in circumstances warranting modification of maintenance exists where
the obligor spouse is unable to pay maintenance at the assigned rate, or the recipient of
the support could meet her reasonable needs with a lesser amount of maintenance
Rusrezne_ve)' v. Rzistenzeyer, 148 S.W.?>d 867, 871 (Mo.App.E.D. 2004). A change in the
income of either party is a relevant factor for the court to consider. ld. As a general
principle, income that is not readily available is not counted for maintenance purposes,
but income that is readily available is. Hil!, 53 S.W.Sd at 115-16.

A voluntary loss of employment is not a substantial and continuing change of
circumstance to allow modification Les'lr'e v. Leslie, 827 S.W.Zd 180, 183 (Mo.banc
1992). An involuntary retirement inay, liowever, prove changed circumstances. Pierce,
215 S.W.$d at 265; Karz v. Kalz, 759 S.W.Zd 857, 858 (Mo.App.E.D. 1988) (finding ex~
ltusband’s reduction in income from retirement a sufficient change of circumstances to
reduce inaiiitenance but not terminate it completely).

The trial court may impute inconie to a party but imputing income depends on the
facts and is determined on a case-by-case basis. Hr'l!, 53 S.W.3d at 117. When
calculating maintenance, the trial court must consider the income front retirement
accounts apportioned as marital property. Id. at 116. The trial court determines the
amount of income, if any, imputed from these accounts based on the facts and
circumstances of each case, including the cost to convert the account into cash, the age of

the parties, their intent as to investment/consumptionfretirernent, the relative division of

marital property and debts, and any equitable adjustment for reasonably certain taxes and
penalties. Id. This is but an application of the concept that the trial courts have broad
discretion in determining the amount of inaintenance and appellate courts do not
iiiterfei'e, absent an abuse of disci'etion. Icz'.

A spouse supported by maintenance has a duty to become self-supporting
Rustenieyer, 148 S.W.Bd at 871. The failure of the supported spouse to achieve financial
independence within a reasonable time after dissolution may form the basis for
modification of a inaintenance award. Icz'. Tlie trial court must consider a spouse’s
obligation to contribute to his or her own support, absent circumstances preventing such
contribution. Sfi'zie v. Sri)ie, 401 S.W.Bd 567, 572 (Mo.App.E.D. 2013).

Hei'e, Wife concedes that Hubsaiid’s retirement may be considered a change in
circumstances in some cases, but contends that it should not be considered one in this
case because Husband failed to meet his burden of proving that there was a substantial
change in circumstances and that the changes rendered the existing judgment no longei'

reasonable. We disagree

Husband’s retirement from KPMG was not voluntai'y. Husband testified and the
record supports that Husband’s retirement was inandatory and that he had to retire
pursuant to his partnership agreement. As a result of Husband’s retii'ement, his income
decreased significantly While Husband was only sixty years old at the time of his
retirement, he chose not to pursue any other employment because he beiieved he had
enough assets to allow him to do so. Thus, he did not renew his CPA license and would
have to complete continuing education to get it back. These were sufficient reasons for

the trial court to find substantial and continuing changed cii'cumstances, and the trial

court did not erroneously apply the law in making that finding Furtlier, this finding is
not against the weight of the evidence and is supported by substantial evidence.

As to the second prong of Wife’s argument, we find that the trial court did not
erroneously apply the law in finding the terms of the previously existing maintenance
order tinreasonable and its judgment is supported by substantial evidence and is not
against the weight of the evidence. Wife failed to meet her burden of showing that the
trial court’s judgment is incorrect, and there is ample evidence in the record to support
the trial court’s judgment, including, but not limited to, the fact that Wife’s income has
continued to increase through not only her einployinent but also as a result of her
ownership of other assets. lndeed, Wife receives over $30,000 per year in income from
an annuity which she identified as separate, not marital, propeity, has increased income
from Husband’s retirement, and has access to Social Security benefits should she choose
to draw them.

Moreover, the record supports the conclusion that Wife can meet her "reasonable"
iieeds with a lesser amount of maintenance from Husband. In 1999, at the time of
dissolution, Wife claimed that she had $365 per month of "other living expenses," which
included food, clothing, and recreation. She now claims that expense is nearly $4,000 per
nionth. The trial court could have found that this increase in "other living expenses" was
unreasonable and that Wife could meet her reasonable needs with a lesser amount of
inaintenaiice. On the entirety of this record and given the trial court’s broad discretion in
determining rnaintenance, Wife has failed to prove an abuse of discretion by the trial

court in modifying her maintenance award.

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