         In the Missouri Court of Appeals
                 Eastern District
                                           DIVISION III

THEODORE M. BARDEN,                              )             No. ED101443
                                                 )
       Respondent,                               )             Appeal from the Circuit Court
                                                 )             of St. Louis County
vs.                                              )
                                                 )             Honorable Thomas J. Frawley
JILL L. BARDEN,                                  )
                                                 )
       Appellant.                                )             FILED: March 10, 2015
                                               Introduction

       Appellant Jill Barden (“Wife”) appeals from the judgment of the trial court modifying the

dissolution decree dissolving her marriage to Respondent Theodore Barden (“Husband”). Wife

presents three points on appeal. First, Wife asserts that the trial court erred in terminating

Husband’s maintenance obligation solely due to Wife’s post-dissolution conduct because a

party’s post-dissolution conduct is not a relevant factor under Section 452.370. Second, Wife

contends that the trial court erred in terminating Husband’s obligation to contribute toward the

oldest child’s college expenses because Husband offered to contribute and has the financial

ability to do so. Finally, Wife avers that the trial court erred in concluding that certain fees

received by Husband were not commissions and, therefore, Wife was not entitled a percentage of

the fees pursuant to the dissolution decree.
        Because the trial court misapplied the law when it terminated Husband’s maintenance

obligation and eliminated Husband’s obligation to contribute toward his oldest child’s college

expenses, we reverse those portions of the trial court’s judgment and remand those issues to the

trial court for reconsideration in accordance with this opinion. The remainder of the trial court’s

judgment is affirmed.

                                  Factual and Procedural Background

        Husband and Wife were married on August 6, 1994. The parties have three children:

Emma, Sophie, and Stella. On February 19, 2010, Husband filed a petition to dissolve his

marriage to Wife. The parties settled the dissolution matter and on November 29, 2011, the trial

court entered its judgment and decree of dissolution (“the dissolution decree”). Husband and

Wife were awarded joint legal and physical custody of the three children, with Wife designated

as the residential parent for educational and mailing purposes.1 Husband was ordered to pay

Wife $1,383.00 per month in child support and to maintain a health benefit plan for the children.

The dissolution decree also ordered Husband to pay 60% of the cost for each child to attend

college, not to exceed the costs at the University of Missouri-Columbia. The dissolution decree

further ordered Husband to pay Wife $1,875 per month for her maintenance and support, plus

35% of any gross commissions and/or bonuses he received.

        On January 17, 2012, Husband filed a motion for family access alleging that Wife was

interfering with the exercise of his physical custody rights under the dissolution decree.

Husband claimed that he had not seen or spoken to Emma, the parties’ oldest daughter, in several

months, and that Wife was not actively encouraging Emma to follow the physical custody



1
 Husband was awarded physical custody in odd-numbered weeks from 5:00 p.m. Monday until 8:00 a.m. Tuesday
and from 5:00 p.m. Thursday until 8:00 a.m. Monday, and in even-numbered weeks from 5:00 p.m. Thursday until
8:00 a.m. Friday.

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schedule set forth in the dissolution decree.2 The trial court granted Husband’s motion in part,

modifying the physical custody schedule with respect to Emma. Under the amended schedule,

Emma was only required to meet Husband for lunch every other Saturday from 12:00 p.m. to

2:00 p.m.

         On August 7, 2012, Husband filed a second motion for family access again alleging that

Wife was interfering with the exercise of his physical custody rights under the dissolution

decree. The second motion concerned Sophie and Stella and their failure to follow the court-

ordered custody schedule. The trial court granted Husband’s motion in part, awarding him

additional custody time during Sophie and Stella’s spring break and abating Husband’s child

support obligation until Sophie and Stella resumed visitation with Husband.3

         On February 28, 2013, Husband filed a motion to modify the dissolution decree,

requesting, inter alia, a decrease in his child support obligation and termination of his

maintenance obligation. In support of his motion, Husband alleged that his income had

significantly decreased since the dissolution decree was entered. Wife responded with a counter-

motion to modify, for sums due and owing, for interest, and for attorneys’ fees. In the sole count

relevant to this appeal, Wife requested $3,203.55 in unpaid maintenance owed from

commissions and/or bonuses paid to Husband by Acrux Star Quality Staffing (“Acrux”).

         The trial court took evidence on the parties’ motions on November 6, 2013. Husband

testified that at the time of the dissolution decree he was employed by Alcon as a sales manager

and was earning approximately $200,000 per year, including commissions and bonuses.4 On



2
  An evidentiary hearing was held on Husband’s motion, but the transcript of the hearing is not in the record before
us. Nevertheless, we can ascertain from the trial court’s judgment that Husband’s relationship with Emma is
strained, and Emma herself chose not spend time with Husband.
3
  The trial court reinstated Husband’s child support obligation on January 1, 2013.
4
  Husband had gross wages of $263,947.13 in 2011 and $182,477.01 in 2012. His base salary at Alcon was
$130,000 per year, and any additional income represented commissions and bonuses.

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July 11, 2012, Husband was terminated from Alcon. Husband testified that for the next several

months he was self-employed as a recruiter for Acrux where he found job placements for

candidates. Husband stated that he successfully placed two candidates, earning a fee of $2,750

for the first placement, and $3,000 for the second placement. Husband did not find a full-time

job until February 2013, when he was hired by Surgical Direct, Inc. Husband’s annual salary at

Surgical Direct, Inc. is $50,000.

       Husband also presented the testimony of Dr. Phillip Lorenz (“Dr. Lorenz”), a vocational

evaluator who assessed Wife’s employability and income potential. Dr. Lorenz testified that

Wife works part-time as a merchandiser for Franklin Retails Solutions and as a playground

monitor at St. Clement School. From these two jobs Wife earns approximately $1000 per month.

Dr. Lorenz concluded that although Wife is not interested in seeking full-time employment, Wife

is employable on a full-time basis for the following jobs: customer service representative,

merchandiser, retail sales associate, and teacher assistant. Dr. Lorenz opined that Wife could

earn between $19,957 and $32,361 per year working full time in one of those positions.

       The trial court also heard testimony from Wife and the parties’ three daughters. Wife

testified about her income and expenses, as well as her daughters’ relationships with Husband.

The three daughters also testified about their relationships with Husband, as well as their past

failures to follow the court-ordered custody schedule. Each daughter indicated that she did not

want increased custody time with Father.

       On January 9, 2014, the trial court entered its judgment modifying the dissolution decree.

The trial court terminated Husband’s maintenance obligation to Wife, lowered Husband’s child

support obligation, modified the custody schedule, and terminated Husband’s obligation to

contribute toward Emma’s college expenses. The trial court also ruled that the income Husband



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received from Acrux was not commission and therefore Wife was not entitled to a percentage of

the income. Wife now appeals.

                                          Points on Appeal

       Wife presents three points on appeal. First, Wife asserts that the trial court erred in

terminating Husband’s maintenance obligation based solely on Wife’s post-dissolution conduct

because a party’s post-dissolution conduct is not a relevant factor for the trial court to consider

under Section 452.370. Second, Wife avers that the trial court erred in terminating Husband’s

obligation to contribute toward Emma’s college expenses because Husband offered to contribute

and has the financial ability to do so. Finally, Wife contends that the trial court erred in

concluding that the fees Husband received from Acrux were not commissions and therefore Wife

was not entitled to a percentage of that income pursuant to the dissolution decree.

                                        Standard of Review

       Our review of a trial court’s ruling modifying a dissolution judgment is governed by

Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Sprouse v. Sprouse, 969 S.W.2d 836,

837 (Mo. App. W.D. 1998). We will affirm the trial court’s judgment unless it is not supported

by substantial evidence, it is against the weight of the evidence, or it erroneously declares or

applies the law. Id. at 837-38.

                                                 Discussion

I.     The trial court misapplied the law when it terminated Husband’s obligation to pay
       Wife maintenance.

       Wife’s first point on appeal challenges the trial court’s judgment terminating Husband’s

maintenance obligation to Wife and focuses on the trial court’s reasoning in rendering its

judgment. Wife contends that the trial court based its decision solely on Wife’s post-dissolution

conduct of alienating the children from Husband and disparaging Husband. Wife maintains that

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a party’s post-dissolution conduct is not a factor the trial court may consider in modifying a

maintenance award under Section 452.370 and, therefore, the trial court misapplied the law in

terminating Husband’s maintenance obligation. We agree.

       Section 452.370 governs modification of maintenance. Pursuant to Section 452.370, “the

provisions of any judgment respecting maintenance or support may be modified only upon a

showing of changed circumstances so substantial and continuing as to make the terms

unreasonable.” Section 452.370.1. A change in circumstances rises to the requisite statutory

level when it renders the obligor spouse unable to pay maintenance at the assigned rate or when

the recipient of the support could meet his or her reasonable needs with a lesser amount of

maintenance. Rustemeyer v. Rustemeyer, 148 S.W.3d 867, 870 (Mo. App. E.D. 2004). The

statutory standard for modification is designed to be strict so as to discourage frequent and

insubstantial motions for modification. Laffey v. Laffey, 72 S.W.3d 143, 147 (Mo. App. W.D.

2002). Therefore, a change in circumstances sufficient to support modification must be proven

by detailed evidence by the party seeking the modification. Id. Additionally, the change in

circumstances must be unknown and unforeseeable at the time of the entry of the judgment that

the spouse seeks to modify. Rustemeyer, 148 S.W.3d at 871.

       Our review of the record reveals that the trial court ignored the strict statutory standard

set forth in Section 452.370 when considering Husband’s motion for modification or reduction of

maintenance. Rather than assessing Husband’s ability to pay maintenance at the assigned rate or

Wife’s ability to meet her reasonable needs with a lesser amount of maintenance, the trial court

fixated on Wife’s conduct toward Husband since the dissolution. The trial court’s order and

judgment specifically states:

       (ee) The conduct of Wife since dissolution of the marriage is a relevant factor in a
       proceeding to modify the maintenance awarded to Wife under the judgment of

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       dissolution of marriage, like the conduct of the parties during the marriage is a
       relevant factor in a proceeding for dissolution of marriage, in determining the
       amount of maintenance to be paid to Wife by Husband.

       (ff) The conduct of Wife since dissolution of the marriage in alienating Husband
       from the minor children and in disparaging Husband[] is conduct that renders the
       amount payable by Husband to Wife under the judgment of dissolution of
       marriage for her maintenance and support unreasonable and warrants
       termination of Husband’s obligation to pay any amounts to Wife for her
       maintenance and support.

(emphasis added). While this Court does not in any way condone negative or harmful post-

dissolution conduct by a prior spouse, we find no basis in the law to modify or terminate a

maintenance award due to the recipient spouse’s post-dissolution conduct. Notably, neither the

trial court nor Respondent cites any Missouri judicial authority to support this part of the trial

court’s judgment. While it is true that a trial court may consider a spouse’s misconduct during

the marriage when making an initial award of maintenance, the relevant question in that

determination is how the spousal misconduct affected the marital relationship. To that end,

Missouri courts have consistently held that “[m]arital misconduct is a factor only when the

offending spouse’s misconduct placed extra burdens on the other spouse.” Balven v. Balven,

734 S.W.2d 909, 913 (Mo. App. E.D. 1987); see also Divine v. Divine, 752 S.W.2d 76, 78-79

(Mo. App. S.D. 1988) (trial court committed no error in failing to consider marital misconduct in

property division where infidelity occurred after both parties had filed for dissolution and thus

misconduct had no influence on the breakdown of the marital relationship). We do not extend

the application of this rule to a motion for modification because the marital relationship no

longer exists. Accordingly, we hold that the trial court misapplied the law when terminating

Husband’s maintenance obligation due to Wife’s post-dissolution conduct.

       We note that the record before us contains evidence that Husband’s income has

substantially decreased since the original decree. Husband’s decrease in income constitutes a

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substantial and continuing change in circumstances potentially warranting a modification of

Husband’s maintenance obligation. Consideration of that factor is reserved to the trial court and

is not properly within the scope of this appeal given the limited basis offered by the trial court for

its judgment. Because the trial court is in the best position to determine the appropriate amount

of maintenance, if any, to be awarded to Wife, we reverse the trial court’s judgment terminating

Husband’s maintenance obligation and remand for reconsideration of Husband’s motion to

modify maintenance pursuant to the strict statutory standard set forth in Section 452.370.

II.    The trial court erred when it terminated Husband’s obligation to contribute toward
       college expenses.

       Wife next argues that the trial court erroneously based its decision to terminate

Husband’s obligation to contribute toward Emma’s college expenses on its findings that Emma

and Husband do not have a close relationship and that Emma did not tell Husband where she

wishes to attend college. As with her first point on appeal, Wife argues that the trial court’s basis

for terminating Husband’s obligation to financially contribute toward Emma’s college expenses

is not supported by Missouri law. We agree.

       Section 452.370, discussed above, also applies to modification of child support

judgments. Under Section 452.370, the party seeking modification must show changed

circumstances so substantial and continuing as to make the terms of the original judgment

unreasonable. Massey v. Todd, 962 S.W.2d 949, 950 (Mo. App. S.D. 1998). First and

foremost, the primary concern of the court is the welfare of the child, not the welfare of the

husband or wife. Brown v. Brown, 19 S.W.3d 717, 724 (Mo. App. W.D. 2000). “The party

seeking modification has a heavy burden of proving he is unable to support his children in the

manner contemplated at the time the separation agreement was incorporated into the dissolution

decree.” Id.

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       It is well established in Missouri that a parent is not automatically liable for the cost of a

child’s post-secondary education. Forde v. Forde, 190 S.W.3d 521, 528 (Mo. App. E.D. 2006).

Five factors are considered when determining what, if any, college education expenses to include

in a child support award: (1) the financial ability of the non-custodial parent; (2) the ability and

capacity of the child for college work; (3) the nearness of the child to the age of majority; (4)

whether the child is self-supporting; and (5) the non-custodial parent's willingness to provide for

such education, as shown by some agreement or other indication on his or her part. Id.

       The record is clear that the trial court did not consider these five factors as mandated by

Missouri case law when entering its judgment. Instead, the trial court terminated Husband’s

obligation to contribute towards Emma’s college education because of the poor relationship that

existed between Husband and Emma, and Emma’s unwillingness to work to repair that

relationship. In explaining its decision to Emma at trial, the trial court admonished:

       You do whatever you want. You want to make an adult decision, there will be an
       adult consequence. I'm not going to put up with it. You don't want to obey court
       orders. You want to go and act a fool when you're going with your father; sit there
       and say it's been 20 minutes and then leave and not say anything. That's about
       acting like a four-year-old. Maybe I should treat you like a four-year-old instead
       of an adult. But no, I'll treat you like an adult. You made an adult decision, there's
       an adult consequence. You figure out how to pay for college on your own, with
       your mother, whoever else; you figure it out. If you can't find any money, that's
       on you. Good luck.

Contrary to the trial court’s reasoning, the nature of the relationship between the noncustodial

parent and the child is not a factor in determining the appropriate amount of support. Gerlach v.

Adair, 211 S.W.3d 663, 669 (Mo. App. W.D. 2007). “[A] poor relationship does not eliminate

the parent’s duty to support her child, nor should a child be penalized for the existence of such

poor relationship.” Id. Likewise, a custodial parent cannot be held responsible for his or her




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child’s own decision to avoid the noncustodial parent, and thus should not be penalized with a

decrease in child support. Id.

         While the trial court may have deemed it appropriate to rebuke a child it believed to be

errant and disrespectful to her parent, the trial court simply lacks the authority to so act under

Missouri law, and misapplied the law when it terminated Husband’s obligation to assist in

paying Emma’s college expenses. We reverse the trial court’s judgment with respect to

Husband’s obligation to pay for Emma’s college costs and remand for reconsideration of this

issue consistent with the standard set forth in Forde.5

III.     The trial court did not err in failing to classify Husband’s income from Acrux as
         commission.

         In her final point on appeal, Wife contends that the trial court erred in concluding that the

fees Husband received from Acrux were not commissions. Wife avers that while consulting with

Acrux, Husband placed two employees with Crown Packaging Corporation. Acrux was paid

$6,750 and $7,500, respectively, for each placement, and out of those fees Husband was given

$2,750 and $3000. At trial, Husband twice referred to these payments as a percentage of the

total fees received by Acrux. Wife argues that because the income Husband received from

Acrux was a percentage of the total paid to Acrux from Crown Packaging Corporation, the trial

court should have classified the income as commission and therefore awarded Wife 35% of those

fees pursuant to the dissolution decree. We are not persuaded.

         We find no error of law in the trial court’s ruling. At the time the dissolution decree was

entered, Husband was employed as a sales manager and regularly earned commissions which


5
 We further note that although the trial court is in the best position to determine the appropriate amount of college
education expenses to include in a child support award, a judgment completely terminating Father’s obligation
would seem to be against the weight of the evidence. At trial, Husband proposed to amend the judgment to require
Husband and Wife each pay 50% of the cost, indicating both his ability and willingness to assist in providing for
Emma’s college education, factors the trial court must consider under Forde.

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