In re the Marriage of Hughes

773 S.W.2d 897, 1989 Mo. App. LEXIS 1006, 1989 WL 73382
CourtMissouri Court of Appeals
DecidedJuly 7, 1989
DocketNo. 15878-2
StatusPublished
Cited by7 cases

This text of 773 S.W.2d 897 (In re the Marriage of Hughes) 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
In re the Marriage of Hughes, 773 S.W.2d 897, 1989 Mo. App. LEXIS 1006, 1989 WL 73382 (Mo. Ct. App. 1989).

Opinion

MAUS, Judge.

Ex-husband Terry Hughes (hereinafter “father”) filed a motion to modify certain provisions for child support in a previously modified dissolution decree. He also filed a motion asking the trial court to hold ex-wife Linda Hughes (hereinafter “mother”) in contempt. The motions were consolidated for hearing. The father appeals from the denial of both motions.

This case had its genesis in a dissolution decree entered on September 8,1981. That decree placed four children in the custody of their mother, subject to reasonable visitation of the father. The children and their birthdays were:

Kelly J. Hughes -December 8, 1963

Casey Michael Hughes -September 27, 1965

Becki Maureen Hughes -April 28, 1968

Devin Christopher Hughes -November 8, 1971

The decree provided the father should pay the mother $150 “per month per child until such time as each child becomes 18 years of age or completes High School, whichever shall occur the later.” Devin died April 10, 1988.

On February 1, 1985, upon the mother’s motion the circuit court modified the provisions for child support. The modified decree provided the father should pay $225 per month for Devin and Becki “until such time as the child becomes 18 years of age or completes high school, whichever shall occur the later.” It also provided he should pay $300 per month for Casey “until the child reaches the age of 21 years, if he is attending a fully accredited, publicly supported college or university as a full-time student, unless he marries or otherwise becomes emancipated.” Kelly had married and was emancipated. Upon the mother’s appeal this court reached the following determination. “This court finds that the trial court’s order should be reversed and the decree modified to require respondent to support all three children until they reach age 21 or are emancipated.” In re Marriage of Hughes, 734 S.W.2d 280, 282 (Mo.App.1987). On September 4, 1987, in response to the mandate of this court, the circuit court entered an “Amended Order Modifying Decree of Dissolution as to Child Support.”

On February 6, 1988, the father filed a motion to further modify the provisions for child support. His prayer was “that the Court enter an order holding that Casey Michael Hughes be considered emancipated as of July, 1985; and that Becki Maureen Hughes be considered emancipated as of February 22, 1986....” The date is not clear from the record, but apparently on April 4, 1988, the father filed a motion to hold the mother in contempt because she “engaged in a vicious campaign of alienation in an attempt to desstroy [sicj the respondent’s relationship with his children.” He prayed that she be punished and for his cost% including attorney fees. As stated, the trial court denied both motions. The father states three points on appeal.

It is unduly repetitious to restate some of the limitations upon appellate review. But it is necessary as the disposition of this appeal is controlled by the following precepts.

“[T]he trial judge resolves conflicts in the evidence and determines the credibility of the witnesses and may accept their testimony entirely or in part.”

Clark County Sales Co., Inc. v. Hester, 732 S.W.2d 569, 571 (Mo.App.1987).

“A trial court, functioning as a fact-finder, can draw all reasonable inferences from the evidence presented to it and can base its ultimate findings upon such reasonable inferences.”

School Dist. of Springfield R-12, etc. v. Transamerica Ins. Co., 633 S.W.2d 238, 249 (Mo.App.1982).

“The judgment of the trial court should be affirmed ‘unless there is no substantial evidence to support it or it is against the weight of the evidence or it erroneously declares or applies the law.’ ”

Trenton Trust Co. v. Western Surety Co., 599 S.W.2d 481, 483 (Mo. banc 1980).

The father’s first point is that the circuit court erred in not finding Becki to be eman[899]*899cipated. To support this point he defines emancipation by implication as follows. “Implied emancipation exists without any express agreement, where the parent through either acts or conduct, impliedly consents that his or her child may leave home and shift for himself or herself.”

He cites as controlling the following bits of evidence. Becki first moved from her mother’s home February 22,1986. In June 1986, Becki had obtained employment, was not living with her parents, and had moved in and was living with her friend. Becki cohabited with a boyfriend. He also argues “[t]he circuit court failed to uphold the terms of the settlement agreement entered into by the parties. The property settlement agreement incorporated into the decree of dissolution, dated September 8, 1981, provided that the ‘duty of the husband to pay [child] support to wife shall terminated [sic] upon any child not residing with her for a period of 30 days....’”

The father’s argument does not take cognizance of a full definition of emancipation by implication.

“Our courts have declared that emancipation is the ‘ “freeing of a child for all the period of its minority from the care, custody, control, and service of its parents; the relinquishment of parental control, conferring on the child the right to its own earnings and terminating the parent’s legal obligation to support it.” 67 C.J.S. Parent and Child § 86, page 811.’ In re Marriage of Heddy, 535 S.W.2d 276, 279 (Mo.App.1976).” (Emphasis added.)

Black v. Cole, 626 S.W.2d 397, 398 (Mo.App.1981).

Applicable corollary rules are the following. Employment and retention of earnings do not per se establish emancipation. Royall v. Legislation & Policy Division, 610 S.W.2d 377, 379 (Mo.App.1980); Brundige v. Marcum, 694 S.W.2d 891, 896 (Mo.App.1985); Biermann v. Biermann, 584 S.W.2d 106, 108 (Mo.App.1979). Nor does the purchase of an automobile. Barks v. Barks, 686 S.W.2d 50 (Mo.App.1985). Nor does a period of living apart from the custodial parent. Brundige v. Marcum, supra, at 896. Any agreement of the parents limiting the duty of the father to support his children was not binding on the court. In re Marriage of Hughes, supra. The burden of proving emancipation is on the party asserting it. Bopp v. Bopp, 671 S.W.2d 348, 351 (Mo.App.1984).

The basis for the circuit court’s determination is established by evidence the father does not acknowledge in his argument.

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773 S.W.2d 897, 1989 Mo. App. LEXIS 1006, 1989 WL 73382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-hughes-moctapp-1989.