Main v. Main

685 S.W.3d 620

Kristen L. MAIN, Respondent,

v.Donet C. MAIN, Appellant.andEthan Main, Intervenor.

No. ED 111716

Missouri Court of Appeals, Eastern Distinct, DIVISION ONE.

Filed: February 27, 2024

Appeal from the Circuit Court of St. Louie County, Honorable Margaret T. Donnelly, Judge

FOR APPELLANT: Allison S. Lee, Timothy C. Sansone, Sandberg Phoenix & Von Gontard, PC, 120 South Central, Suite 1600, Clayton, Missouri 63105, Samuel N. Sherman, Sandberg Phoenix & Von Gontard, PC, 4600 Madison Avenue, Suite 1000, Kansas City, Missouri 64112.

FOR RESPONDENT: Susan M. Hais, Michelle L. Hughes, Cordell Law, LLP, 600 Kellwood Parkway, Suite 310, Town and Country, Missouri 63017, Dylan R. Briggs, 3050 West Clay Street, Suite 101, St. Charles, Missouri 63301.

Philip M. Hess, Judge

Introduction

Donet C. Main ("Husband") appeals the circuit court’s judgment overruling his motion to terminate his maintenance obligation to Kristen L. Main ("Wife") based on Wife’s relationship with D.S. ("Partner"), which Husband argues is a substitute for marriage. Husband raises three points on appeal. In Point I, Husband argues the circuit court erroneously applied the law in overruling his motion to terminate maintenance by improperly focusing on whether Partner financially supported Wife rather than the permanence of their relationship. In Point II, Husband argues the circuit court abused its discretion in overruling his motion to compel discovery of bank records held by a Colorado limited liability company ("Colorado LLC") Wife owns with Partner because the records were relevant to Husband’s motion to terminate maintenance to the extent the circuit court properly focused on Partner’s financial support of Wife. In Point III, Husband argues the circuit court abused its discretion in ordering him to pay a portion of Wife’s attorney’s fees because his motion to terminate maintenance asserted valid arguments and was brought in good faith.

This Court holds the circuit court did not erroneously apply the law in overruling Husband’s motion to terminate his non-modifiable maintenance obligation to Wife. Point I is denied. Because the circuit court did not abuse its discretion in overruling Husband’s discovery request and Husband suffered no prejudice, Point II is denied. Finally, the circuit court did not abuse its discretion in ordering Husband to pay a portion of Wife’s attorney’s fees after considering all relevant factore. Point III is denied. The circuit court’s judgment is affirmed.

Factual and Procedural History

Husband and Wife were married in May 1998, and separated in December 2011. In February 2015, the circuit court entered its dissolution decree, which incorporated the parties’ separation and property settlement agreement ("separation agreement"). The dissolution decree ordered Husband to pay nonmodifiable maintenance to Wife as set forth in the separation agreement. The separation agreement provided Husband shall pay "contractual, non-modifiable maintenance" to Wife over the course of eight years with the amount gradually decreasing until Husband’s maintenance obligation terminated in February 2023. The separation agreement further stated the dissolution decree "shall not be subject to modification by any court, however, the parties may at any time modify the terms of the [separation] [a]greement by mutual agreement in writing." The parties never agreed in writing to modify Husband’s nonmodifiable maintenance obligation. Neither the dissolution decree nor separation agreement specified any condition, other than satisfaction of the maintenance schedule, terminating Husband’s maintenance obligation.

Shortly after the parties’ dissolution was final, Wife moved into Partner’s home, to which Partner holds the title and mortgage in his name alone. Wife’s youngest son also lives at this residence, as has Wife’s older children and Partner’s daughter at various times. Partner lived in Georgia from 2016 through 2019, and currently lives in Texas three months of the year for work. Wife and Partner have tattoos referencing their relationship. Partner bought Wife a cocktail ring, but the parties are not engaged nor did they obtain a marriage license. Wife and Partner vacation together with their children. Partner held himself out as the stepfather to Wife’s son on one occasion.

Wife makes regular monthly payments to Partner for her share of household expenses, including for the joint credit card Wife and Partner hold. Wife reimburses Partner when he purchases items on her behalf or for her children. Wife pays for her family’s portion of vacation expenses. When Wife was unemployed, she repaid Partner for the months she was unable to pay her share of monthly expenses. Wife and Partner jointly own the Colorado LLC which holds the mortgage to two condominiums. Wife and Partner jointly hold and have access to the Colorado LLC’s bank account. Wife and Partner share and pay expenses and deposit funds into this bank account.

In July 2020, Husband moved to terminate his maintenance obligation, arguing Wife’s relationship with Partner was of such a permanent nature it became a substitute for marriage under this Court’s holding in Herzog v. Herzog, 761 S.W.2d 267 (Mo. App. E.D. 1988). Husband claimed his maintenance payments were supporting Wife’s new family, including Partner, and argued equitable principles warranted a finding maintenance should be terminated effective the date of the filing. Wife moved to dismiss Husband’s motion, arguing neither the dissolution decree nor the separation agreement specified any condition, besides satisfaction of the maintenance payment schedule, terminating Husband’s nonmodifiable maintenance obligation. Wife requested attorney’s fees and costs. Husband also sought discovery of the Colorado LLC’s bank records, to which Wife objected. The circuit court initially sustained Wife’s objection finding the request was overbroad, but advised Husband the ruling could be revisited if he received additional documentation regarding whether Wife and Partner shared bank accounts.

After deposing Wife, Husband moved to compel discovery of the Colorado LLC’s bank records from August 2016 going forward. Husband argued Wife admitted she and Partner co-owned the Colorado LLC, held a joint bank account for the Colorado LLC’s benefit, and shared expenses and deposits. Husband stated "[t]he existence of a bank account, shared expenses, and shared property" was "an essential component" of his motion to terminate maintenance to bolster his claim Wife and Partner’s relationship was a substitute for marriage. Partner filed a limited entry of appearance to oppose discovery of these bank records. Partner argued the bank records were irrelevant because they were property of a third-party business, the records were outside of Wife’s possession, custody, and control, the request was overly broad, and if produced, the bank records would reveal sensitive financial documents of nonparties without a protective order. The circuit court overruled Husband’s motion to compel discovery without comment.

The circuit court held a hearing on Husband’s motion to terminate maintenance in April 2022, at which Wife and Husband testified. Wife testified about the nature of her relationship with Partner, their operation of the Colorado LLC, and her current employment. Wife testified she would have to move out of their shared residence if Partner did not want her to stay because he owned the home. Husband conceded nothing in the separation agreement stated he could request an increase or decrease in the amount or duration of maintenance. Husband agreed the separation agreement did not contain a cohabitation clause. When asked if Husband had any documentation reflecting Wife and Partner had a marriage license, Husband testified, "[N]o fornai written documentation. Only what people have told me." Husband stated it was his "personal belief that they are married, or at least hold themselves out to be manned." Husband was questioned about his misconduct during the marriage. The circuit court admonished Wife’s counsel because it believed this line of questioning was a "waste of time" and it "certainly won’t be awarding fees for these minutes that we’re wasting."

The circuit court issued detailed findings of fact and conclusion of law. The circuit court found the dissolution decree and separation agreement clearly stated Husband’s maintenance obligation was nonmodifiable, but were silent about whether maintenance would continue past remarriage or death. Because the maintenance was nonmodifiable, the circuit court determined it could not consider modification based on a change in circumstances' The circuit court found credible evidence Wife and Partner were in a committed relationship. Yet, the credible evidence also showed neither Partner nor Wife provide financial support for each, Wife contributed equally to the household and other expenses, and Wife repaid Partner for monthly household expenses when she was unemployed. The circuit court further found Wife did not have "the same security she would in a marriage" because she lives with Partner "subject to his willingness to have her there." The circuit court found "it was clear [Wife] and [Partner] care for each other and are sharing expenses … [but] this is not a relationship of such a nature that it is a substitute for marriage" and overruled Husband’s motion to terminate his maintenance obligation. The circuit court ordered Husband to pay a portion of Wife’s attorney’s fees after considering the relevant statutory factors.

Husband moved for a new trial, to reopen the evidence, or to vacate, correct, amend, modify or set aside the judgment. Husband argued, among other things, the circuit court erred in failing to order his maintenance obligation be terminated as of the date Wife’s relationship with Partner began because he presented more than fifty pieces of evidence demonstrating their relationship was a substitute for...