Mozingo v. Mozingo

822 S.W.2d 483, 1991 Mo. App. LEXIS 1807, 1991 WL 257353
CourtMissouri Court of Appeals
DecidedDecember 10, 1991
DocketNos. WD 43822, WD 43872
StatusPublished
Cited by1 cases

This text of 822 S.W.2d 483 (Mozingo v. Mozingo) 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
Mozingo v. Mozingo, 822 S.W.2d 483, 1991 Mo. App. LEXIS 1807, 1991 WL 257353 (Mo. Ct. App. 1991).

Opinion

ULRICH, Judge.

Robert E. Mozingo (husband) appeals the trial court’s award of attorney fees to his former wife, Luveada Alice Mozingo (wife), in the amount of $8,816.00. Husband contends that granting attorney fees to wife is error because the trial court did not consider all necessary factors, including the financial resources of the parties, which would have precluded the attorney fees award. Wife cross appeals the trial court’s termination of maintenance, which was awarded to her in the original divorce decree. Wife argues that termination of maintenance is error because the trial court did not have jurisdiction over her. She claims that she was not properly served with process and that a substantial and continuing change in circumstances was not proven by substantial evidence. The trial court’s judgment is affirmed in part, reversed in part, and remanded with directions.

Mrs. Mozingo filed her petition for dissolution in July 1986. The dissolution judgment was entered in January 1987, and held “that Petitioner’s [wife’s] present physical condition prevents her from seeking or holding gainful employment, and therefore a maintenance order as set forth herein is necessary and appropriate.” Accordingly, the judgment required the husband to pay $600.00 per month as maintenance and $2,500 for the wife’s attorney fees. The judgment also ordered the sale of the marital home and division of the net proceeds.

Following the entry of the January 1987 divorce decree, husband was cited several times for contempt for his failure to comply with the decree’s provisions. On two occasions, husband was jailed for contempt. On November 7,1988, the trial judge determined that husband was in default to wife in the sum of $15,426.73. The trial judge ordered husband to pay the sum to wife. The court additionally ordered husband to pay wife $8,816.00 for attorney fees and $45.00 in costs to wife. The November 7 judgment of contempt was stayed to allow husband additional time to obtain a real estate loan to satisfy the judgment against him; however, husband failed to appear at the second hearing on December 21, 1988. Subsequently, husband was jailed again for civil contempt. In order to purge himself of contempt, husband deeded to wife the marital home in lieu of paying the money judgment against him. On appeal, 779 S.W.2d 284, the November 7 order for attorney fees was reversed and remanded to the trial court due to the absence of evidence of husband’s financial circumstances.

On February 19, 1988, husband filed a motion to terminate his maintenance obligations. The trial court sustained husband’s motion, finding that wife had recovered from her physical impairment that was the basis for the order of maintenance in the court’s January 1987 dissolution judgment. After reviewing husband’s financial condition, the trial court again ordered husband to pay $8,851 for wife’s attorney fees and expenses for services rendered in defending previous appeals, enforcement of maintenance, and work related to contempt hearings.

I. HUSBAND’S APPEAL

Husband appeals the trial court’s order requiring him to pay wife’s attorney fees. Section 452.355.1, RSMo Supp.1990, prescribes:

The court from time to time after considering all relevant factors including the [485]*485financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under sections 452.300 to 452.415 and for attorney’s fees, including sums for legal services rendered and costs incurred pri- or to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.

Husband argues that the trial court abused its discretion in awarding attorney fees because some of the fees are for attorney services rendered in appealing the issue of attorney fees and the sale of the marital home, matters not related to the dissolution proceedings and beyond the scope of § 452.355.1. Additionally, husband claims that the trial court erred in awarding any attorney fees because the court did not give due consideration, as required by § 452.355.1, to the financial resources of the parties as well as wife’s conduct. Husband directs this court to the following facts as support for his appeal: wife recently purchased a new car, she claims three relatives as dependents for income tax purposes, she has been able to pay substantial attorney fees, and wife’s financial condition has improved while the husband’s financial condition has become worse.

“The award of attorney’s fees is within the sound discretion of the trial court and will not be overturned absent a manifest abuse of discretion.” May v. May, 801 S.W.2d 728, 734 (Mo.App.1990). The trial court is an expert as to the necessity, reasonableness, and value of attorney fees. Id. “The trial court’s ruling concerning attorney’s fees is presumptively correct.” Brandt v. Brandt, 794 S.W.2d 672, 674 (Mo.App.1990).

The record reveals that wife’s attorney fees relate to services performed in defending appeals, enforcing court orders, and other matters related to the dissolution proceedings. Section 452.355 specifically “allows an award of attorney fees for maintaining or defending relevant actions.” Flach v. Flach, 645 S.W.2d 718, 721 (Mo.App.1982). Additionally, wife’s attorney fees were $21,916.50. The trial judge awarded $8,816 plus expenses. Accordingly, this court can logically assume that any amount sought by wife which may not have been within the scope of § 452.355 was not awarded and is included in the unawarded portion of the fees. Id. at 722. Therefore, the attorney fees award is for services prescribed by § 452.355.

As to the amount of attorney fees awarded, the trial court did not abuse its discretion by awarding $8,816 plus expenses as attorney fees. “ ‘One factor to consider in awarding attorney fees to a party is the extent to which the other party’s conduct required the expense of attorney’s fees.’ ” Podrecca v. Podrecca, 794 S.W.2d 329, 332 (Mo.App.1990) (quoting T.B.G. v. C.A.G., 772 S.W.2d 653, 655 (Mo. banc 1989)). Evidence was presented regarding the time and work which the wife’s attorney performed. The award is reasonable considering the record on appeal, which reflects an extensive number of court hearings, motions, contempt charges, writ applications, and other proceedings. Mitchell v. Mitchell, 711 S.W.2d 572, 576 (Mo.App.1986). Furthermore, contrary to husband’s assertions, the court’s examination of the record does not show misconduct on the part of wife with respect to the sale of the marital home or the filing of documents.

The trial court did not abuse its discretion in requiring the husband to pay the attorney fees. The husband earned $31,-586 in 1988 and the record is void of any evidence that his income has decreased since then. The wife’s 1988 and 1989 income tax returns report incomes of $19,528 and $11,420, respectively.

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Bluebook (online)
822 S.W.2d 483, 1991 Mo. App. LEXIS 1807, 1991 WL 257353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mozingo-v-mozingo-moctapp-1991.