Taormina v. Taormina
Appeal from the Circuit Court of Jackson County to the Missouri Court of Appeals – Western District
WD 84334
Opinion Filed December 21, 2021
Outcome: Affirmed in Part & Remanded in Part
Taormina (hereinafter “Wife”) and M. Taormina (hereinafter “Husband”) married in 1981 and 1989 adopted a child (hereinafter “Daughter”). The parties divorced in 2006. Pursuant to the divorce judgment Husband was to pay Wife spousal support in the amount of $2,560.00 per month starting in April of 2006.
Husband paid maintenance until November 2019. In February 2020, Wife filed a motion seeking to hold Husband in contempt for failing to pay the ordered maintenance. In April 2020, Husband filed a motion seeking an order terminating or, in the alternative, modifying the award of maintenance, alleging that Wife was in a relationship that was a substitute for marriage and that there had been substantial and continuing changes in Wife’s circumstances. Wife was not personally served with this motion, but a response was filed by counsel on her behalf on April 24, 2020.
At trial evidence was presented that Wife had started a romantic relationship with S. Burton in the Summer of 2006. Wife and Burton began living together and, in 2009, Wife moved with Burton to Las Vegas. Wife purchased a lot in a suburb of Las Vegas for $282,000. Nearly five years later, Wife and Burton built a home on the land. Wife estimated that she and Burton each contributed $500,000 to the home.
Additionally, Wife and Burton traveled extensively, including flying in Burton’s private plane. Burton gave Wife gifts, such as all-inclusive Superbowl tickets. Burton was present at many of Wife’s family events, including graduations, engagements parties, and weddings. Wife and Burton lived together, spent time with each other’s families, and admitted that they were intimate. Wife worked for Burton’s company, received a monthly salary from Burton’s company and was also given benefits such as a cell phone, car and health insurance company.
Furthermore, when Daughter married Burton listed himself as the “Husband” of Wife and the Father of Daughter. Burton shared a Father-Daughter dance with daughter, helped purchase a $5,000.00 bottle of wine and a $10,000.00 wedding dress for Daughter and paid for hotel rooms for guests for the wedding.
The trial court granted Husband’s motion to terminate maintenance retroactive to October 31, 2019, finding that “there have been changed circumstances so substantial and continuing as to make the terms of [the previous order] unreasonable.” Among the numerous findings the trial court made, it noted that [Wife’s] “relationship with Mr. Burton has long ago achieved a status of a permanent relationship. [Wife] and Mr. Burton are and have been for some time holding themselves out as man and wife in all significant respects.”
Wife filed a three-point appeal alleging the following: (1) Wife claims that the trial court misapplied the law in terminating maintenance retroactive to October 2019, arguing that section 452.370.6, RSMo, allows for modification of a maintenance award only as to maintenance that accrues subsequent to the date of personal service of the motion to modify; (2) Wife asserts that the trial court erred in denying her motion for contempt, arguing that Husband voluntarily ceased paying maintenance prior to filing his motion to terminate or modify maintenance and (3) Wife alleges that the trial court erred in terminating maintenance, arguing that Husband failed to show a substantial change of circumstances.
Point 1: Since Wife did not actually remarry, therefore, sections 452.370.3 and 452.075, RSMo, do not apply, and Husband’s maintenance obligation did not terminate by operation of either of those provisions. As a result, the Appellate Court held that “. . . we must remand this case to the trial court for entry of a date on or after April 24, 2020, that maintenance terminated.” Remanded for further findings consistent with this ruling.
Point 2: In this particular instance, Husband admitted that he voluntarily stopped making payments to Wife because of her “remarriage.” [Refer to point 1]. Here, the trial court purported to terminate Husband’s maintenance obligation retroactive to a time when, as found, it was legally unable to do so. Therefore, because Husband does owe some amount of maintenance that he admitted to willfully failing to pay, we must remand to allow the trial court to consider whether Husband’s failure to pay maintenance under the original divorce decree was “‘an act of contumacy’” that constitutes civil contempt. Remanded.
Point 3: The Appellate Court we find Wife’s cohabitation with Burton and their sharing of expenses to be a sufficient change in circumstances to render the original maintenance award unreasonable. Denied.
