Turner v. Hoover

764 S.W.2d 160, 1989 Mo. App. LEXIS 94
Missouri Court of Appeals·Decided January 26, 1989·No. No. 15556·Published·Cited by 8 cases

Opinion

HOGAN, Judge.

This is an action to modify the provisions of a decree of dissolution. The proceeding was initiated by appellant Elmina A. Turner (hereinafter defendant) who moved modification of the original decree in the following respects: 1) modification so as to permit removal of the parties’ minor child from the jurisdiction; 2) modification to increase the amount of child support paid by the petitioner (hereinafter the plaintiff) from $180 per month to $230 per month, and 3) modification of the original decree so as to define each party’s right to custody of the minor child. The defendant also sought to require the plaintiff to execute an assignment of wages as provided by former § 452.350, RSMo 1986.

The trial court heard evidence and thereafter entered an order which: 1) granted the defendant leave to remove the parties’ minor child from the jurisdiction; 2) granted defendant the principal custody of the [161] parties’ minor child, allowing the plaintiff to have the child in his custody from June 20 to August 20 every year and from noon December 25 to January 1 every year. The cost of transporting the child from the residence of one parent to that of the other was ordered divided between the parties. The plaintiff was given notice that upon application of the defendant or the Missouri Division of Child Support Enforcement, his wages or other income would be subject to withholding without further notice if he became delinquent in his payment of child support. The notice is sufficient to comply with the provisions of § 452.350, RSMo Supp.1987, and effectively disposes of the defendant’s request for an assignment of wages. And, although the action was instituted at least in part because it was necessary for the defendant to move to Indiana, no complaint is made of the order allowing the defendant to remove the child from the jurisdiction.

In this court the defendant contends: 1) that the trial court erred in refusing to increase her allowance for child support, and 2) that the division of custody of the minor child is “clearly not in the best interests of the minor child, and [is against] the weight of the evidence.” In cases involving awards of child support and the custody of minor children, the judgment of the trial court is to be affirmed if it is supported by substantial evidence, is not against the weight of the evidence and no error or misapplication of the law appears. Murphy v. Murphy, 613 S.W.2d 450, 451-52 (Mo.App.1981); Dempsey v. Dempsey, 605 S.W.2d 513, 514 (Mo.App.1980).

Section 452.370.1, RSMo Supp.1987, in effect when this case was tried, provided that the provisions of a decree of dissolution respecting maintenance or support might be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms of the original decree unreasonable. The statute directed the trial court to consider all financial resources of both parties and certain other factors where an allowance for support is concerned. We are aware that a party seeking modification must show a change of circumstances which is substantial and continuing. In re Marriage of Gardner, 683 S.W.2d 811, 312 (Mo.App. 1984). This record does not, however, clearly demonstrate either of the two primary considerations which determine the appropriate amount of child support — the needs of the child and the ability of the father to pay. Fumey v. Steele, 564 S.W.2d 610, 612 (Mo.App.1978); In re Marriage ofPrenavo, 556 S.W.2d 463, 466 (Mo. App.1977).

The parties to this action were divorced July 28, 1982. One child, a female, was born of their marriage on November 29, 1975. The defendant was awarded the “exclusive care, custody, and control of the minor child” subject to a reasonable right of visitation by the plaintiff. Defendant was awarded the sum of $180 per month as child support. Such is, of course, an allowance of about $6 per day for a child 7 years of age. We cannot say the award was wholly unreasonable, but it was not over generous, either. At the hearing on this motion to modify, the defendant’s testimony was very indefinite. The defendant testified that she spent about $25 per month for her daughter’s clothing at the time of the divorce, and now spent $40 per month, approximately, for clothing. Defendant further testified to increased educational expenses in the amount of $51.52 per year, and increased medical expenses, without specifying the particular sort of expense incurred. The defendant’s estimate of the cost of feeding her child was expressed thus:

“Well, the only way I knew to estimate, if you are going to go out to eat, you are going to pay at least $5.00 a meal or more for a reasonable meal and that would be at least $25.00 a week, just for one meal and if you cook at home and you count that and break it down, you know, for three meals, you know, it is of course cheaper to cook at home, but I would say at least $25.00 a week, you know, if you — ”

The defendant also estimated that her daughter’s “recreational” expenses amounted to $40 or $45 per month, “give or take some months.”

[162] Plaintiff’s income, at the time of the dissolution, was about $862 net per month, according to his pay voucher, and at that time he earned about $2,500 per year as a member of the National Guard. Rough calculation indicates that his income was about $12,800 annually at the time of his divorce. Plaintiff’s income tax returns indicate that his income for the calendar year 1986 was $20,000. Plaintiff admitted that he could afford an additional $50 per month in child support. We thus have a record which suggests that an increase in the amount of child support would be appropriate but fails to show, with any reasonable degree of certainty, what the child’s needs are.

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

Turner v. Hoover, 764 S.W.2d 160, 1989 Mo. App. LEXIS 94 (Mo. Ct. App. 1989).

764 S.W.2d 160 (Turner v. Hoover) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Dover v. Dover
930 S.W.2d 491 (Missouri Court of Appeals, 1996)
Morton v. Stockdale
888 S.W.2d 362 (Missouri Court of Appeals, 1994)
Fuchs v. Fuchs
887 S.W.2d 414 (Missouri Court of Appeals, 1994)
Michel v. Michel
834 S.W.2d 773 (Missouri Court of Appeals, 1992)
HARRIS BY HARRIS v. Harris
803 S.W.2d 167 (Missouri Court of Appeals, 1991)
Mendelsohn v. Mendelsohn
787 S.W.2d 321 (Missouri Court of Appeals, 1990)
Russell v. Russell
782 S.W.2d 406 (Missouri Court of Appeals, 1989)
In Re the Marriage of Cornish
780 S.W.2d 62 (Missouri Court of Appeals, 1989)