Pecher v. Pecher

398 S.W.3d 580, 2013 WL 1800239, 2013 Mo. App. LEXIS 525
CourtMissouri Court of Appeals
DecidedApril 30, 2013
DocketNo. WD 75030
StatusPublished
Cited by7 cases

This text of 398 S.W.3d 580 (Pecher v. Pecher) 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
Pecher v. Pecher, 398 S.W.3d 580, 2013 WL 1800239, 2013 Mo. App. LEXIS 525 (Mo. Ct. App. 2013).

Opinion

GARY D. WITT, Judge.

Edward George Pecher III (“Father”) appeals a judgment of dissolution entered by the Circuit Court of Callaway County in which it dissolved the marriage, established custody and parenting time, awarded child support to Leanne Marie Pecher (“Mother”) and divided the marital assets. Father contends that the court’s judgment was erroneous and asserts four points on appeal. In his first point, Father alleges that the court erred “by not making a just and equitable distribution of property” in that it was not supported by substantial evidence because the court accepted Mother’s valuation of the home and not the appraiser’s estimation, causing an inequitable distribution. In his second point, Father assigns error to the court in awarding attorney’s fees to Mother because the award was not based on substantial evidence. In his third point, Father contends that the court erred in awarding child support for the nineteen-year-old child [583]*583born of the marriage because that child failed to meet the statutory requirement of being enrolled in college by October 1 following high school graduation in order to qualify for child support. In his fourth point, Father asserts the court erred in calculating the amount of child support owed for the two minor children because the court’s Form 14 calculation did not contain an overnight visitation credit for Father, nor did it accurately reflect Mother’s monthly income. For reasons more fully explained below, we affirm in part and reverse in part and amend the judgment pursuant to Rule 84.14.1

Factual Background2

Mother and Father were married in 1992 and two children were born of the marriage, Luke Edward (“Son”) age nineteen and Kaylee Lynn (“Daughter”) age sixteen. On December 17, 2010, Mother filed for divorce, seeking child support and sole legal and physical custody of the two minor children. On February 10, 2011, Father answered and counter-claimed for dissolution. After the parties separated, the two children remained with Mother in the marital home.

On October 5, 2011, the case was tried to the court.

Mother testified that the marriage was irretrievably broken due to Father’s daily drinking to the point of intoxication. She also testified that Father was not home very much, often worked out of town, spent almost no time with Daughter, and generally did not contribute to the care of the family other than by providing a paycheck. She further testified that Father had exhibited domestic violence towards her and Son, which led to her obtaining an order of protection. Mother requested Father to pay a portion of her attorney’s fees.

With regard to the marital home, Father obtained an appraisal indicating a value of $127,000. Mother testified that the appraisal obtained by Father was too high considering all of the major repairs that the home needed, including a new waste removal system, foundation repair, mold removal, interior drywall repair in ceilings from water damage, and a new HVAC system, among other things. Mother’s opinion was that the home was valued at $80,000 due to all of the repairs that would need to be made in order to make it marketable.

Mother testified that Father did not pay any child support during the separation yet cashed in several small life insurance policies and kept the cash. Mother did agree that Father had given her approximately $8,000 and told her to pay his truck payment and his credit card payments for him. During the separation, Father was incarcerated for four months in the Department of Corrections for a felony DWI conviction and underwent alcohol treatment while in custody. Mother testified that the money he gave her was spent on his bills, the balance for Daughter’s private high school tuition and was used to reinstate the homeowner’s insurance that had previously lapsed. Mother paid the health insurance premiums for the family through her employer.

Mother did not seek maintenance but did seek child support from Father for their children. Son joined the National Guard after high school and was planning [584]*584to enroll in college once he completed his advanced military training in October. His intention was to begin school in the spring semester at one of two universities, depending on which one would accept his National Guard credit hours. Son began his training in the summer after high school graduation so that he could begin college one semester late and receive tuition assistance.

Father testified that the alcohol treatment was beneficial to him and that he wanted joint custody of the children. He argued that many of the problems with the house had existed for several years and some were there when they purchased the house. He thought the children would want to have overnight visits with him, though admitted that Daughter had not once spent the night at his home throughout the preceding year following the separation. Father testified that he gave Mother several payments of varying amounts after the separation and that she obtained and spent their joint tax refund.

On December 16, 2011, the court entered its judgment. The court set forth the statutory analysis of the factors regarding the best interests of the children. § 452.375.3 The court noted that Father’s “alcohol abuse has led to the dissolution of the marriage and the need to consider the mental and physical health of the parents and children.” “[Mother] testified of threats [Father] made and of violating an order of protection.” Thereafter the court ordered that Mother shall have sole legal and physical custody of the minor children. The court also adopted Mother’s proposed parenting plan and ordered that it be followed. The plan allowed for one overnight visit with the children for Father every other weekend. The court also ordered that Father not consume alcohol in the presence of the children, or twelve hours before or after visitation.

The court valued the marital home at $80,000 and awarded it to Mother. It then divided the marital property and ordered that Mother pay Father $40,000 as an equalization payment to balance the equitable distribution.

With regard to child support, the court rejected the Form 14s submitted by the parties and prepared its own. Pursuant thereto, the court awarded Mother $759 per month for the two children and found the current support would be $547 if support were ordered for one child. It also calculated retroactive child support for the time period of January 1, 2011 to the date of Judgment and ordered that Father pay Mother $8,349.00. Attorney fees were awarded to Mother, in the amount of $7,133.35. Each parent was ordered to pay fifty percent of Daughter’s high school tuition and fees.

Father timely appeals.

Standard of Review

“We will affirm the judgment of the trial court unless it is not supported by substantial evidence, it is against the weight of the evidence, or it misstates or misapplies the law.” Murray v. Murray, 318 S.W.3d 149, 152 (Mo.App. W.D.2010). “We will not reverse the trial court’s judgment on the basis that it is against the weight of the evidence unless we have a firm basis for concluding that the judgment is wrong or that it is against the logic of the circumstances.” In re Steggall, 296 S.W.3d 25, 27 (Mo.App. W.D.2009).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Dana L. Girgis v. Mark S. Girgis
Missouri Court of Appeals, 2023
Wolfgang Shields v. Mildred Epanty (Previously Shields)
503 S.W.3d 227 (Missouri Court of Appeals, 2016)
Angela M. Nelson v. Daniel Nelson
497 S.W.3d 892 (Missouri Court of Appeals, 2016)
Lisa M. Rallo v. Pete S. Rallo
477 S.W.3d 29 (Missouri Court of Appeals, 2015)
Jamy L. Jessen v. Aaron J. Jessen
450 S.W.3d 425 (Missouri Court of Appeals, 2014)
Elnicki v. Carraci
445 S.W.3d 59 (Missouri Court of Appeals, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
398 S.W.3d 580, 2013 WL 1800239, 2013 Mo. App. LEXIS 525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pecher-v-pecher-moctapp-2013.