Henry v. Henry

886 S.W.2d 172, 1994 Mo. App. LEXIS 1655, 1994 WL 583931
CourtMissouri Court of Appeals
DecidedOctober 25, 1994
DocketNo. 64751
StatusPublished
Cited by3 cases

This text of 886 S.W.2d 172 (Henry v. Henry) 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
Henry v. Henry, 886 S.W.2d 172, 1994 Mo. App. LEXIS 1655, 1994 WL 583931 (Mo. Ct. App. 1994).

Opinion

CRAHAN, Judge.

Mother appeals the trial court’s rulings on two issues in her otherwise successful motion to modify a decree of dissolution. Specifically, Mother complains of: (1) the trial court’s failure to declare that the obligation to pay child support for their daughter would continue beyond age 21 due to her physical and mental incapacity to support herself; and (2) the trial court’s failure to order Father to pay one-half of their now emancipated son’s post-secondary educational expenses incurred prior to his emancipation. Father moves to dismiss Mother’s appeal as untimely. We hold that the appeal was timely filed and affirm the judgment of the trial court.

The marriage of the parties was dissolved on August 2, 1979. There were three children bom of the marriage, a son born November 12, 1971, a daughter born May 24, 1974, and another son born August 19, 1976. Initially, Mother was awarded custody of the three children and $40.00 per week per child in child support. Subsequent modification orders eventually increased child support to $68.00 per week per child.

[173]*173The eldest son graduated from high school on May 30, 1991. He enrolled at Vatterott Vocational College in July of that year. He quit for a year due to sickness and resumed classes in April 1993. Shortly thereafter he dropped out with no intent to return.

The parties’ daughter suffers from triple mosaics, a chromosome disorder. At the time of the hearing on Mother’s motion to modify, she was 19 years old and living with Mother and attending a special school program called Transitional. In this program she attends two hours of classes a day and then helps in an office for the remainder of the day. Throughout her life she has attended schools through the special school district. At the time of the hearing, daughter had one more year to complete the program.

In October, 1991, Mother filed a motion to modify, alleging a substantial and continuing change in circumstances. In her motion Mother requested an increase in child support, payment of one-half of all educational expenses for the minor children, attorney fees, and child support for daughter for as long as her disability continues. Father filed a motion to dismiss claiming no change in circumstances justifying modification of the dissolution decree. The motions were heard on June 8, 1993. The court heard testimony from both parties and the eldest son and admitted extensive exhibits.

The court issued its findings and judgment on July 2, 1993. The court overruled Father’s motion to dismiss, finding sufficient change in circumstances to justify an increase in child support. The court found that the eldest son became emancipated on or about April 15, 1993, the date he quit attending Vatterott Vocational College. The court ordered Father to pay an increased amount of $760.00 per month for the support of the two remaining unemancipated children. Father was also ordered to pay $1,800.00 in retroactive support, less $469.00 Father had previously paid for the eldest son’s support after his emancipation, and to pay one-half of the cost each year for the remaining children to attend a post-secondary school. Mother was awarded attorney fees and costs totaling $646.00. The court denied as premature Mother’s request to extend Father’s support obligation for daughter for so long as her disability continues.

On July 15, 1993, Father timely filed a motion for new trial requesting the court to grant a new trial, reopen the judgment, take additional testimony, amend its findings, and direct the entry of a new judgment. On August 2, 1993, the court granted this motion and allowed additional evidence to be submit ted. On August 16, 1993, the court issued an amended judgment and order, specifying payment of $380.00 per month for daughter and $380.00 per month for the younger son instead of the previous monthly lump sum for both children. The amended judgment and order also recalculated the amount of money paid by Father to Mother after the eldest son’s emancipation, increasing the credit amount to $952.00 and leaving a balance of $848.00 in retroactive child support. Further, the amended judgment and order clarified payments to be made for daughter and younger son’s post-secondary education, adding provisions specifying each party’s obligations.

On September 24, 1993, Mother filed this appeal, asserting two points of error. Before reaching these issues, however, we must first address Father’s contention that we lack jurisdiction because Mother’s appeal is untimely.

Father argues we should dismiss this appeal for lack of jurisdiction because Mother filed her notice of appeal more than ten days after the court filed its amended judgment. Rule 81.04 requires that a notice of appeal be filed no later than ten days after the judgment or order appealed from becomes final. Father maintains that because Mother filed her notice of appeal on September 24, 1993, some 39 days after the amended judgment, this court is without jurisdiction. We disagree.

Rule 78.01 provides:

On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact or make new findings, and direct the entry of a new judgment, (emphasis added).

[174]*174As a new judgment, the trial court retains control over it for thirty days, during which time, after giving notice to the parties and for good cause, the trial court may “vacate, reopen, correct, amend, or modify its judgment.” Rule 75.01.

Father argues that the judgment became final when it was amended in August 1993. If that were the case, neither party would be able to challenge by motion the findings or conclusions of the second judgment. Nor would the court on its own motion have an opportunity to correct any errors. See Rule 75.01. Such a result would be contrary to the purpose of the thirty day continuing jurisdiction of the trial court under Rule 75.01 in that the parties and the appellate court would have to spend valuable time and resources on appeals brought to rectify simple errors which the trial court could more easily correct in the first instance. Schreier v. Schreier, 625 S.W.2d 644, 648 (Mo.App.1981).

Accordingly, we find the opening of the original judgment and the admission of additional evidence resulted in the issuance of a new judgment. The new judgment is comprised of the judgment entered on July 2, 1993 and the amendments thereto made under the August 16, 1993 judgment. This new judgment was not final for purposes of appeal until September 16, 1993. Rule 81.05. Mother’s appeal, filed September 24, 1993, was therefore timely. Rule 81.04.

In her first point, Mother claims the trial court erred in “failing to extend the obligation of [Father] to provide for support of [daughter] beyond the age of 18 pursuant to section 452.340.4 RSMo.1....” Actually, the trial court did provide for support of daughter beyond the age of 18. The trial court specifically ordered Father to pay child support of $380.00 per month for daughter, who was 19 years old at the time of the hearing, and to provide one-half of her post-secondary educational expenses.

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Bluebook (online)
886 S.W.2d 172, 1994 Mo. App. LEXIS 1655, 1994 WL 583931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-v-henry-moctapp-1994.