Busken v. Busken

878 S.W.2d 78, 1994 Mo. App. LEXIS 946, 1994 WL 256751
CourtMissouri Court of Appeals
DecidedJune 14, 1994
DocketNo. 64689
StatusPublished
Cited by3 cases

This text of 878 S.W.2d 78 (Busken v. Busken) 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
Busken v. Busken, 878 S.W.2d 78, 1994 Mo. App. LEXIS 946, 1994 WL 256751 (Mo. Ct. App. 1994).

Opinion

CRIST, Judge.

Mother appeals from the denial of her motion to modify child support and child custody. We affirm.

On June 19, 1979, the marriage of Mother and Father ended in dissolution. The decree of dissolution granted custody of the minor child (Child) born of the marriage to Mother. It further granted reasonable visitation to Father and ordered him to pay $45 per week in child support.

In 1986, the dissolution decree was modified. The modification provided Mother and Father would share legal and physical custody of Child. Mother was given physical custody of Child during the school year, while Father was given physical custody of Child during his summer vacation from school. In addition, the modification ordered Father to pay child support to Mother of $400 per month for the nine months she had custody of Child.

On January 8, 1992, Mother filed a motion to modify the dissolution decree alleging substantial and continuing changes in circumstances requiring a modification of child support; specifically, the application of the child support guidelines and Rule 88.01 to the financial circumstances of the parties would result in a change in child support from the existing amount of $400 by 20% or more and the cost of Child’s private school tuition had increased substantially.

In response, Father contended Mother had intentionally lessened her income and should have income imputed to her. Father also filed a counter motion to modify requesting the court allow him to take a deduction for Child on his income tax.

On June 28,1993, the trial court conducted a hearing on the motions to modify. The evidence presented at trial revealed the following: Mother is currently remarried and lives in Florissant. At the time of the modification in 1986, she was single. Mother’s statement of income and expenses indicates she makes $234 semi-monthly for nine months of the year as a part-time school bus driver for the Hazelwood School District. In 1991, she earned $4,499.46; and in 1990, she earned $5,308.12. Mother made about $12,-000 per year at the time of the dissolution when she worked full-time. However, she testified she is currently unable to work full-time because she had two surgeries on her bladder. Mother’s present husband is a farmer. Evidence of the income of Mother’s present husband was admitted at the hearing but has not been provided to this court. Mother did testify, however, she believed their adjusted gross income was $38,000.

Father testified he has remarried and has another child with his second wife. He was remarried to his current wife at the time of the 1986 modification. He and his family live in Florissant. Father works as a butcher for Schnuek’s Markets. Father further agreed his monthly salary is $2,710.93. His combined income with his second wife is about $70,000 per year.

The center of controversy was Child’s attendance at private school. Child attends DeSmet High School, a private Catholic school, where he is a Sophomore and on the honor roll. Mother testified she had discussed with Father about Child attending a private school and he had no objection. However, she admitted he never agreed to pay any of the costs associated with Child attending. The tuition, books, and transportation costs of Child attending DeSmet are about $4,700. Father testified Mother did not consult him about Child attending De-Smet, and he only learned of his attendance after the fact. He stated he believed Child could do well in any school district and wanted Child to attend Hazelwood School District.

Mother presented a Form No. 14 showing the presumed child support amount to be $405 per month. This figure was apparently based on her estimate that Father makes $2,710.93 per month, while she has no income.

Mother also made an oral motion at trial to modify the temporary custody arrangement of Child during the summer from 90 days to 30 days. She testified Child, who at the time of trial was 15 years old, wanted to remain [80]*80with her for the summer and work on her husband’s farm. In response, Father stated he wanted to continue custody of Child for the summer months, even though Child has complained to him about it. However, Father believes Child wants this because Mother is not as strict as he is. Child is not prevented from seeing his friends or having them over. Also, Child is allowed to go over to Mother’s farm to work during the day, because Father and his second wife both work.

Following the hearing, the trial court summarily denied both motions to modify. Neither party requested findings of fact and the trial court made none. Mother appeals.

In Point I, Mother contends the trial court misapplied the law in failing to consider the cost of Child’s private school education as a proper factor in increasing child support because Rule 88.01 gives the court discretion to include tuition. Mother contends the court specifically stated it could not consider requiring Father to pay the tuition because he did not consent to it.

We agree with Mother’s contention that the cost of private school education is a proper factor for the trial court to consider in assessing the amount of child support. See, § 452.340.1(4), RSMo Supp.1993 (relevant factor to consider in assessing child support includes educational needs of child); Rule 88.01 (relevant factor in determining child support includes education); Mistier v. Mistier, 816 S.W.2d 241, 255[14] (Mo.App.1991) (education expenses are an appropriate factor for court to consider in awarding child support); Markowski v. Markowski, 793 S.W.2d 908, 909—10[2] (Mo.App.1990) (cost of private school education is a proper factor in awarding child support); Stitt v. Stitt, 617 S.W.2d 645, 647[3] (Mo.App.1981) (“provision for private school may be a valid item of support”).

However, Mother is referring to comments made by the judge in response to queries about whether Father was consulted about Child attending DeSmet. The court stated: “The Court—The Court is really not going to consider whether or not he was consulted about it. If he didn’t agree to pay, then that would be the crucial issue for the Court on this.” These are not statements indicating the court failed to consider the amount of tuition, but merely an indication of what factors the court would consider in exercising its discretion. Whether this is a proper factor or not, we need not decide.

The decision of whether to increase the presumed child support to require Father to pay Child’s educational expenses is within the discretion of the trial court. See, Markowski, 793 S.W.2d at 910[3]; Stitt, 617 S.W.2d at 647[2]. We must defer to that discretion unless the evidence is palpably insufficient to support it. In re Marriage of D.M.S., 648 S.W.2d 609, 612[1] (Mo.App.1983). We find no insufficiency here.

Mother bears the burden of showing the tuition costs represent a substantial and continuing change in circumstances warranting an increase in child support. § 452.370.2, RSMo Supp.1993; Stitt, 617 S.W.2d at 646. Mother failed in her burden. At the time of the 1986 modification, Child attended another private school, Sacred Heart.

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Bluebook (online)
878 S.W.2d 78, 1994 Mo. App. LEXIS 946, 1994 WL 256751, Counsel Stack Legal Research, https://law.counselstack.com/opinion/busken-v-busken-moctapp-1994.