Nelson v. Nelson

25 S.W.3d 511, 2000 Mo. App. LEXIS 352, 2000 WL 271731
CourtMissouri Court of Appeals
DecidedMarch 14, 2000
DocketWD 57071
StatusPublished
Cited by86 cases

This text of 25 S.W.3d 511 (Nelson v. Nelson) 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
Nelson v. Nelson, 25 S.W.3d 511, 2000 Mo. App. LEXIS 352, 2000 WL 271731 (Mo. Ct. App. 2000).

Opinion

EDWIN H. SMITH, Presiding Judge.

Michael A. Nelson appeals the judgment of the Jackson County Circuit Court dissolving his marriage to the respondent, Cassandra L. Nelson, with respect to its division of the parties’ marital property and award of child support.

The appellant raises four points on appeal. In both Points I and II, he claims that the trial court erred in not awarding the parties an equal share of the marital property. Specifically, in Point I, he claims that the evidence was insufficient to support an unequal division of marital property, and in Point II, he claims that such an award, based on his marital misconduct, was punitive in nature, in violation of § 452.330, 1 and was contrary to the requirements of Missouri Constitution Article 22(a) and in conflict with his rights guaranteed to him by the First, Fifth, Ninth and Fourteenth Amendments to the United States Constitution. In Point III, the appellant claims that the trial court erred in awarding child support for one child of $456 per month as being the presumed correct child support amount (PCCSA) because, in calculating this amount pursuant to Civil Procedure Form No. 14, as required, it included $551 in “additional child rearing costs,” which amount was not supported by the evidence. In Point IV, he claims that the trial court erred in awarding the respondent retroactive child support for two children in the PCCSA of $574 per month because, as claimed in Point III, this amount was not supported by the evidence.

We affirm in part and reverse and remand in part.

Facts

The parties were married on April 12, 1974. There were two children born of the parties’ marriage, Michael A. Nelson II, born February 11, 1979, and Michaela A. Nelson, born August 31,1987.

On February 17, 1994, the parties separated, and the respondent filed her petition for dissolution of marriage on January 21, 1997, alleging that the marriage was irretrievably broken. In her petition, the respondent requested the court to, inter alia, dissolve the marriage; award her custody of the two children, child support and maintenance; and divide the property. On April 22, 1997, the appellant filed his answer and cross-petition for dissolution, requesting the court to, inter alia, dissolve the marriage, grant him joint custody of the children, and divide the property. The respondent filed her answer to the appellant’s cross-petition on May 9,1997.

The trial court heard the case on May 13, 1998, and issued its judgment on December 4, 1998, inter alia, dissolving the marriage; awarding joint legal and physical custody of the minor children to the parties; awarding child support to the respondent of $574 per month for the two children, including retroactive support of $7,980; ordering both parties to maintain health, dental and vision insurance for the children; awarding maintenance; and dividing the property. The court also ordered the appellant to pay “education expenses” for secondary school, including payments for “musical training and les *516 sons, school programs and sports activities,” and for college expenses.

On December 30, 1998, the appellant filed his “Motion for New Trial or, Alternatively, to Amend Judgment,” in which he alleged that the child support award was in error in that, inter alia, Michael, who had recently celebrated his nineteenth birthday and was not a full-time student at an institution of higher learning, was now emancipated. He also alleged that the court’s unequal division of marital property was in error because it was not supported by the evidence.

On March 4, 1999, a hearing was held on the appellant’s motion for new trial or to amend judgment. The trial court denied the appellant’s motion for new trial, but sustained his motion to amend with respect to the alleged emancipation of Michael and its effect on its prospective award of child support. The provisions of the amended judgment were in most respects identical to those in the initial judgment, except with respect to the custody and child support provisions concerning Michael, who the court found was emancipated as of October 23,1998. As such, the child support award of $574 per month for two children was ordered amended to $456 per month for Michaela, starting December 1,1998. Retroactive child support was found owing to the respondent in the amount of $12,510 for February 1, 1997, through November 30, 1998, which was reduced to $4,197 after credits for past payments in the amount of $4,813 and setting off the amount ordered paid to the appellant to equalize the court’s property division. Unlike the initial judgment, the amended judgment had no separate provision for payment of “education expenses” for the children by the appellant.

This appeal follows.

I.

In Point I, the appellant claims that the trial court erred in not awarding the parties an equal share of the marital property. Specifically, he claims that the evidence was insufficient to support an award of 70 percent of the marital property to the respondent, contending that there is a presumption favoring an equal division, which was not rebutted. We disagree.

Our review of provisions in a divorce decree as to the division of marital property is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Medlock v. Medlock, 990 S.W.2d 186, 189 (Mo.App. 1999). We will affirm the decision of the trial court, unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Crews v. Crews, 949 S.W.2d 659, 663 (Mo.App.1997) (citing Allen v. Allen, 927 S.W.2d 881, 885 (Mo.App.1996)). “The burden of demonstrating error is on the party challenging the divorce decree.” Id.

An appellate court will only interfere with a trial court’s division of property if the division “is so ‘heavily and unduly weighted in favor of one party as to amount to an abuse of discretion.’ ” Gendron v. Gendron, 996 S.W.2d 668, 670 (Mo. App.1999) (quoting Crews, 949 S.W.2d at 663); Medlock, 990 S.W.2d at 189. “Judicial discretion is abused when a trial court’s ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Medlock, 990 S.W.2d at 189. If reasonable persons can differ about the propriety of the trial court’s action, it cannot be said that the trial court abused its discretion. Id.

Section 452.330, 2 which governs the division of property in a dissolution *517 proceeding, mandates a two-step process to be followed by the trial court: (1) the court must first set aside to each spouse his or her non-marital property; and (2) then divide the marital property. Eck v. Eck,

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Bluebook (online)
25 S.W.3d 511, 2000 Mo. App. LEXIS 352, 2000 WL 271731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-nelson-moctapp-2000.