McCann v. McCann

448 S.W.2d 323, 1969 Mo. App. LEXIS 510
CourtMissouri Court of Appeals
DecidedDecember 1, 1969
Docket25228
StatusPublished
Cited by11 cases

This text of 448 S.W.2d 323 (McCann v. McCann) 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
McCann v. McCann, 448 S.W.2d 323, 1969 Mo. App. LEXIS 510 (Mo. Ct. App. 1969).

Opinion

SHANGLER, Judge.

The parties, plaintiff Alyce A. McCann and defendant Charles H. McCann, were married on October 16, 1965. Two children were born to them, Stephanie Ann, who was two and one-half years of age at the time of the divorce, and Charles Logan, then one and one-half years of age. Plaintiff was granted a divorce on her petition and was granted the permanent custody of the children, as well. She had waived any claim to alimony. Defendant was allowed the right of reasonable visitation and ordered to pay the sum of $35 per week per child for their support. The single question presented for our review is whether such an allowance, under the circumstances of the evidence, was so excessive as to amount to a manifest abuse by the trial court of its discretion.

Although a contest of the issues was framed by the pleadings, the proceedings, including the trial, were largely consensual. Plaintiff and defendant, only, testified. Defendant was called to the stand at the court’s instance. Except for defendant’s alleged marital misconduct which, in any event, was not a live issue, the parties’ testimony was reciprocally supporting.

The undisputed evidence thus developed established that defendant’s total net monthly earnings were approximately $550. Of this amount, $510 was derived from his employment in the Headstart Program of the Economic Opportunity Corporation. The additional $40 monthly was earned by rolling newspapers during the weekends. The sum of defendant’s monthly expenses was $378.50 and included $112.50 for rent, utilities $60, food $70, car expense $45, insurance $10, clothing $15, entertainment $10 and $56 for miscellaneous items.

Plaintiff was unemployed. After the divorce, she intended to continue to baby-sit for compensation as she had done during the marriage, but we are not informed of her monetary expectations for doing so. She indicated, as well, that with little effort she could resume her pre-marital employment with Household Finance Corporation. (We observe, parenthetically, that although the ages of the parties are not disclosed, we assume they are young adults. Neither are we informed as to the educational achievements or vocational talents of either of them.) She gave no evidence as to specific items of expense relating to the care and maintenance of the two children. Notwithstanding, she deemed $20 per week per child a reasonable and adequate sum for the support of the two children and requested the court to approve an allowance in that amount, as contemplated in their Separation Agreement. Among its other terms, the Separation Agreement provided for the transfer by defendant to plaintiff of specified United States Savings Bonds, $900 in value. Presumably, defendant retained a number of bonds of equivalent value. The parties also agreed to distribute personal household items and the de *325 fendant promised to reimburse plaintiff $200 for “expense involved after separation”. Although not appearing among the terms of the written Separation Agreement, defendant additionally agreed “to be responsible for” the cost of medical and hospital care for the children. Plaintiff appeared to harbor no doubt of her ability to properly care for the children on such a fiscal grounding.

Defendant, as we have stated, was called upon to give his testimony at the instance of the court. From him it was adduced that he had some familiarity with the cost of providing for the needs of children as his work related to that subject. He testified that the cost of food for the two children would be $20 per week ($1040 per year), clothing at $100 per year, medical expenses at $250 per year, keeping of the home at $60 per month ($720 per year) and entertainment at $10 per month ($120 per year), for a total annual expense of $2230, or an equivalent weekly expense of approximately $21.50 per child. The court, nevertheless, expressed its discomfiture at the prospect of defendant retaining $378.50 from his monthly earnings for his personal expenses, while being asked to allow only $40 per week for the support of both children. Thereupon, the court granted plaintiff a decree of divorce, granted to her custody of the two minor children, Stephanie and Charles, allowed defendant the right of reasonable visitation and awarded plaintiff the sum of $35 per week per child for their support. Appellant contends that the trial court abused its discretion in having entered the support allowance of $35 per week per child because that amount was based neither on the father’s ability to pay, nor on the children’s actual needs. Appellant also contends that in arriving at the amount given in judgment for support, the court improperly considered the possibility that the plaintiff might seek and receive government aid for the support of the children.

The amount to be awarded as child support is a matter resting in the sound discretion of the trial court. That award will not be disturbed except for a manifest abuse by the court of its discretion. The only question before us is whether or not that discretion has been abused. That is the extent of our review of such matters. Royster v. Royster, Mo.App., 420 S.W.2d 1, 4; Bettinger v. Bettinger, Mo.App., 355 S.W.2d 354, 359. Neither can the proper amount to be awarded be determined by an invariable rule. Judicial precedents help to provide guidance, but each case must rest on its own facts and circumstances. 1 A.L.R.3d 382, 392-393; Wade v. Wade, Mo.App., 429 S.W.2d 317, 319. The primary duty of the father to support his minor children and to provide for their reasonable needs is derived from the common law, is based upon statute and is an expression of sound public policy. Lodahl v. Papenberg, Mo.Sup., 277 S.W.2d 548, 551, and In re Scarritt, 76 Mo. 565, 584. The two correlative considerations which, generally, govern the amount to be given in support of minor children are the ability of the father to pay and the needs of the children. Montgomery v. Montgomery, Mo.App., 257 S.W.2d 189, 197; Gianfor-maggio v. Gianformaggio, Mo.App., 341 S.W.2d 293, 297. When assessing these considerations, the courts have generally devoted substantial attention to the issue of the necessary living expenses of those involved.

In the case before us, the reasonable needs of the children, as well as their cost, were sufficiently well defined to sustain a valid judgment for support. It is clear, however, that no such judgment could have been based on the testimony of Mrs. McCann alone, as she gave no evidence as to items of need or their cost. Nelson v. Nelson, Mo.App., 357 S.W.2d 223; McCullough v. McCullough, Mo.App., 402 S.W.2d 623, 628. Mr. McCann supplied that lack and, we assume, it was at least for that purpose that the court called upon *326 him to give testimony. Whereas Mrs. McCann had concluded, without attention to specific items, that the sum of $20 per week per child would be adequate for their needs, Mr.

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Bluebook (online)
448 S.W.2d 323, 1969 Mo. App. LEXIS 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccann-v-mccann-moctapp-1969.