Shepard v. Shepard

47 S.W.3d 412, 2001 Mo. App. LEXIS 1103, 2001 WL 687617
CourtMissouri Court of Appeals
DecidedJune 20, 2001
Docket23895
StatusPublished
Cited by18 cases

This text of 47 S.W.3d 412 (Shepard v. Shepard) 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
Shepard v. Shepard, 47 S.W.3d 412, 2001 Mo. App. LEXIS 1103, 2001 WL 687617 (Mo. Ct. App. 2001).

Opinions

BARNEY, Chief Judge.

Cynthia R. Shepard (“Wife”) appeals from a Judgment Entry of Dissolution of Marriage (“judgment”) which dissolved her marriage with Johnny Shepard (“Husband”), positing trial court error in failing to include the cost of private schooling in determining the amount of child support Husband was to contribute, and trial court error in unjustly dividing the marital property in favor of Husband. We affirm.

Husband and Wife married on July 28, 1984. One child was born of the marriage, Madeline Nichole Shepard (“Maddy”), born September 26, 1988. When Maddy started school, Husband and Wife enrolled her in a private school, the Thomas Jefferson Independent Day School, (“private school”), with tuition costs in excess of $6,000.00 per year at the time of the dissolution of marriage proceeding in March of 2000.

In 1993, Husband and Wife opened Oak Tree Fabric, a fabric and upholstery store, (“the fabric store”) in Joplin, Missouri. Shortly thereafter, Wife began working for her parents at a furniture store they owned in Springfield, while Husband assumed duties as the primary operator of the parties’ fabric store. In 1998, Wife’s parents opened up a business called The Market Place Interiors across the street from the fabric store, and Wife became the manager of this business. In 1999, business at the parties’ fabric store declined [415]*41520-25% and Husband testified that he attributed this decline to the loss of a major account as well as competition from the store opened by Wife’s parents.

As more fully discussed below, in dividing the property, the trial court awarded Wife the marital home, much of the household goods and furniture, her IRA account, a portion of a stock market account, and other miscellaneous items. Husband was awarded the fabric store, his IRA account, other miscellaneous items, and the remaining portion of the stock market account.

This Court’s review of the trial court’s judgment is governed by Rule 84.13(d), and will be affirmed unless it .is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously applies the law.1 In re Marriage of Thompson, 24 S.W.3d 751, 753-54 (Mo.App.2000); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In reviewing the appeal of a court-tried dissolution action, this Court views the evidence in a light most favorable to the judgment. In re Marriage of Pahlow, 39 S.W.3d 87, 90 (Mo.App.2001). The challenging party bears the burden of demonstrating error by the trial court. Id.; Taylor v. Taylor, 12 S.W.3d 340, 344 (Mo.App.2000).

In her first point, Wife maintains that the trial court erred in the amount of child support it ordered Husband to pay because it failed to include the cost of private schooling for Maddy.

At trial, Wife testified that Maddy had always attended a private school since the commencement of her education and that Wife wished Maddy to continue her attendance at the private school because, “[h]er friends are there. She’s been there for seven years. She’s a smart child. She’s excelling. She’s doing very well. And that’s the environment that she most feels comfortable with. That’s like home to her.” She furthered testified that the separation and divorce had been traumatic for Maddy, that changing schools would also be a traumatic experience, and that she would do whatever she could to keep Maddy in the private school. However, in responding to questions from Husband’s attorney, Wife acknowledged that there was nothing “wrong” with public schools. Husband testified that he did not wish to pay for the private school Maddy attended; that he and Wife had discussed taking Maddy out of the private school in 1998; and that during their discussion Wife did not have a problem with that course of action. He further testified that he did not feel it was in Maddy’s best interest to continue at private school because “she needs to have more rounded education as far [sic] interacting with different people, and this public school system is fine.”

In its final judgment, the trial court made a specific reference to the private schooling of Maddy, noting that she “does not have any special educational needs that cannot be met in a public school.” Consequently, the Court did not increase the basic amount of child support for private school expenses. The trial court has discretion whether to include a portion of private school tuition in child support paid by a noncustodial parent. Drury v. Racer, 17 S.W.3d 608, 610 (Mo. App.2000). Deference is given to the trial court’s judgment and we will reverse only if the evidence is palpably insufficient to support it. Id.; Douglas-Hill v. Hill, 1 S.W.3d 613, 620 (Mo.App.1999). The fact that a parent does not want to pay for private school is not, by itself, enough to deny child support for educational expenses, however, it is a relevant factor. Drury, 17 S.W.3d at 610. “The test for [416]*416determining when a court should order private schooling over the wishes of one parent is when such schooling will meet the particular educational needs of the child.” Id.

In support of her argument, Wife cites to In re Marriage of Manning, 871 S.W.2d 108, (Mo.App.1994), noting that this Court considered a case similar to the instant case and reversed the decision of the trial court for failing to include private schooling in its child support order. In that case, this Court held that dissolution of a marriage is difficult on a child and keeping children in a private school can be essential to the welfare of the child. Id. at 111. However, the cost of education is a proper factor to consider, and “including costs for private education is conditional upon such education being within the financial means of the person or persons providing support.” Id.; see Markowski v. Markowski, 793 S.W.2d 908, 910 (Mo. App.1990). In Manning, the tuition for private schooling was $2100.00 per year, while the income for the noncustodial parent preceding the divorce action ranged from $4,300.00 to $5,500.00 per month. Manning, 871 S.W.2d at 110-11. These numbers are distinguishable from the present case as tuition for Maddy’s private school was in excess of $6,000.00 per year, while the trial court determined that Husband’s gross income was $2,684.00 per month. The trial court made mention of this disparity at the conclusion of trial, noting on the record, “that it’s a true sacrifice for the parties to have been sending the child to Thomas Jefferson in the past. And if the child continues to go to Thomas Jefferson, it’s going to be an extraordinary expense for a couple with this standard of living.”

As for the educational needs of the child, as previously recited, Husband testified that he felt it was in Maddy’s best interest to attend a public school in order to obtain a more “rounded education” and interact with other people.

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

Related

Melissa M. Carter v. Drew B. Carter
Missouri Court of Appeals, 2025
Bethany D. Harris v. Douglas L. Harris
Missouri Court of Appeals, 2022
Seggelke v. Seggelke
319 S.W.3d 461 (Missouri Court of Appeals, 2010)
Skaggs v. Skaggs
301 S.W.3d 72 (Missouri Court of Appeals, 2009)
In Re Marriage of Wood
262 S.W.3d 267 (Missouri Court of Appeals, 2008)
Dunnagan v. Dunnagan
239 S.W.3d 181 (Missouri Court of Appeals, 2007)
Scruggs v. Scruggs
161 S.W.3d 383 (Missouri Court of Appeals, 2005)
Sullivan v. Sullivan
159 S.W.3d 529 (Missouri Court of Appeals, 2005)
Elrod v. Elrod
144 S.W.3d 373 (Missouri Court of Appeals, 2004)
Jarvis v. Jarvis
131 S.W.3d 894 (Missouri Court of Appeals, 2004)
Clance v. Clance
127 S.W.3d 716 (Missouri Court of Appeals, 2004)
Kolar v. Kolar
114 S.W.3d 440 (Missouri Court of Appeals, 2003)
Bohon v. Bohon
102 S.W.3d 107 (Missouri Court of Appeals, 2003)
Ballard v. Ballard
77 S.W.3d 112 (Missouri Court of Appeals, 2002)
Marriage of Kirkwood v. Kirkwood
77 S.W.3d 675 (Missouri Court of Appeals, 2002)
Cohen v. Cohen
73 S.W.3d 39 (Missouri Court of Appeals, 2002)
Shepard v. Shepard
47 S.W.3d 412 (Missouri Court of Appeals, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
47 S.W.3d 412, 2001 Mo. App. LEXIS 1103, 2001 WL 687617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shepard-v-shepard-moctapp-2001.