Marriage of Weiss v. Weiss

954 S.W.2d 456, 1997 Mo. App. LEXIS 1479, 1997 WL 469581
CourtMissouri Court of Appeals
DecidedAugust 19, 1997
Docket70560
StatusPublished
Cited by12 cases

This text of 954 S.W.2d 456 (Marriage of Weiss v. Weiss) 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
Marriage of Weiss v. Weiss, 954 S.W.2d 456, 1997 Mo. App. LEXIS 1479, 1997 WL 469581 (Mo. Ct. App. 1997).

Opinion

CRAHAN, Chief Judge.

Husband appeals the judgment and decree of dissolution of the parties’ marriage. On appeal, Husband challenges the award of primary custody of the parties’ children to Wife, various aspects of the child support award, one condition placed on a property equalization payment from Wife to Husband, the award of maintenance and the requirement that he pay a portion of Wife’s attorney’s fees. We reverse the judgment insofar as it requires Husband to name his children as beneficiaries of his life insurance policies. We remand for reconsideration the provision of the judgment requiring Husband to pay one-half of the children’s medical expenses. We further direct the trial court on remand to divide the two bank accounts apparently omitted from the decree. In all other respects, the judgment is affirmed.

*458 Husband and Wife were married on April 16, 1976. Two children were born during the marriage, Marissa, born September 12, 1978, and Harold, born May 22,1982.

Throughout the marriage, Husband was employed more or less steadily by Chrysler. In 1992, after a temporary layoff, Husband moved to Indiana to return to work for Chrysler. While working in Indiana, Husband returned home every weekend. On May 3,1993, Wife filed a Petition for Dissolution of Marriage in the Circuit Court of St. Francois County. On September 13, 1993, the trial court entered a PDL order ordering Husband to continue to pay all the household expenses, including mortgage, utilities, groceries, and marital debts as well as $40.00/ week while he was away. The court also appointed a guardian ad litem (“GAL”) to represent the best interests of the children.

On April 5, 1994, Chrysler transferred Husband back to Missouri. On April 28, 1994, Wife filed a motion and affidavit for temporary injunction and restraining order against Husband, which was granted. On May 6, 1994, the court entered a permanent order removing Husband from the marital home.

The case was tried on January 5, 1995, and due to scheduling difficulties, was concluded on May 22, 1995. The parties and both children testified. Wife also introduced the deposition testimony of her psychologist, who opined that she was suited to be the primary custodian of the children. Wife’s mother and sister also testified in her behalf.

In its judgment and decree of dissolution, the trial court awarded primary custody of the children to Wife and ordered Husband to make child support payments calculated pursuant to Rule 88.01 and Form 14. Husband was also ordered to pay one-half of the children’s medical expenses not covered by insurance and to name them as his beneficiaries on his life insurance policies. Wife was awarded maintenance of $300.00 per month and Husband was ordered to pay a portion of Wife’s attorney’s fees. The marital home was awarded to Wife. To offset the value of the marital home, Wife was ordered to make a property equalization payment to Husband to be paid 60 days after entry of the decree or, in the event of an appeal by Husband, 60 days after the appeal becomes final.

Our standard of review in this case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The judgment of the trial court will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Id.

In his first point, Husband claims the trial court erred in delaying Wife’s property equalization payment until 60 days after the appeal becomes final. Husband claims that this improperly deprives him of interest during the pendency of the appeal. We disagree. By law, interest accrues at the statutory rate from the date of the judgment. Section 408.040 RSMo 1994; 1 Reimers v. Frank B. Connet Lumber Co., 273 S.W.2d 348, 349 (Mo.1954). We find nothing in the decree which purports to relieve Wife of her obligation to pay interest on the property equalization payment from the date the judgment was entered. Point denied.

Husband next contends the trial court erred in ordering him to pay one-half of the children’s medical expenses not covered by insurance without a finding that the child support amount calculated pursuant to the guidelines embodied in Rule 88.01 and Form 14 was “unjust or inappropriate.” We agree. There is a rebuttable presumption that child support calculated in accordance with the guidelines set forth in Rule 88.01(e) and Form 14 is the correct amount. Section 452.340.8. To rebut that presumption and depart from the guidelines, the trial court must make a written finding or a specific finding on the record that, after considering all relevant factors including those set forth in section 452.340.1, application of the guidelines would be “unjust or inappropriate” in the particular case. Id. A provision calling for the payment of uninsured medical expenses constitutes the payment of child support. Adelman v. Adelman, 878 S.W.2d 871, 873 (Mo.App.1994). In this case, Husband *459 was ordered to make monthly child support payments calculated pursuant to Form 14. The additional requirement that Husband pay one-half of the children’s uninsured medical expenses therefore increased Husband’s child support obligation above the amount presumed to be correct. To effectuate such an order, the trial court was required to make a written finding or a finding on the record that the presumed child support amount is unjust or inappropriate. Id. As in Adelman, we remand this provision of the judgment for reconsideration. On remand, the trial court shall consider all relevant factors including those set forth in section 452.340.1 and either make an express finding that application of the guidelines would be “unjust or inappropriate” or delete the provision requiring Husband to pay one-half of the children’s uninsured medical expenses.

In his third point, Husband claims the trial court erred in ordering him to name his children as beneficiaries of his life insurance policies. We agree. However reasonable it may be to expect a parent to provide for the support of his children in the event of his untimely demise, it is well established that a requirement to name children as beneficiaries of life insurance is not authorized under our dissolution act. Niederkorn v. Niederkorn, 616 S.W.2d 529, 538-39 (Mo.App.1981); Steffens v. Steffens, 773 S.W.2d 875, 877 (Mo. App.1989). Accordingly, we reverse that provision of the judgment and direct that it be deleted on remand.

In his fourth point, Husband challenges the trial court’s failure to create two trust accounts for the children and order Wife to deposit $1,000.00 into each account. Prior to separation, Husband and Wife maintained a joint bank account. In addition, Wife maintained a joint account with each of the two children which contained approximately $1,000.00 each.

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Bluebook (online)
954 S.W.2d 456, 1997 Mo. App. LEXIS 1479, 1997 WL 469581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-weiss-v-weiss-moctapp-1997.