Zweifel v. Ahland

718 S.W.2d 660, 1986 Mo. App. LEXIS 5189

• Court: Missouri Court of Appeals
• Decided: October 27, 1986
• Docket: No. 14314
• Status: Published

Opinions

ANNA C. FORDER, Special Judge.

In this action, the trial court ordered appellant, the mother of two teenage boys, to pay $75 per month per child to respondent, their father, for their support. The action was brought by the respondent in the form of a motion to modify subsequent to a decree of dissolution of marriage entered in the same court May 7,1981, and in which decree the following words are found: “There is no child support awarded Respondent.” A separation agreement, found conscionable and made a part of the decree of dissolution, is silent regarding child support.

The children have remained in the custody of respondent, and have had visits with appellant.

The trial court found, on April 10, 1985, with ample supporting evidence, “that certain facts have arisen since entry of this Court’s Decree which has effected substantial and continuing changes in the circumstances of said minor children and their custodian....”

We agree with the trial court.

Appellant argues that there is a two-pronged test that must be met, requiring a change in the circumstances so substantial and continuing as to render the original decree unreasonable. Appellant argues that neither prong alone will justify modification.

It is abundantly clear that the Missouri Court of Appeals has recognized that “... the legislature in enacting § 452.370 intended to require a stricter standard for modification of a decree of dissolution than was formerly required.” Calicott v. Calicott, 677 S.W.2d 953, 955[1] (Mo.App.1984). This was for a good reason. As explained in Eastes v. Eastes, 590 S.W.2d 405, 409 (Mo.App.1979), § 452.370 was enacted to implement a stricter standard for modification, thereby discouraging repeated and insubstantial motions for modification. Furthermore, says Eastes, “As with the custody determination, the proceedings are examined only for abuse of discretion or misapplication of the law.!’

The trial judge had ample opportunity to judge the change of circumstances, the substantial value of those changes, the reasonableness of the original order awarding no child support, and, as always, in an order involving children, the best interests of the children. Williams v. Williams, 510 S.W.2d 452, 455 (Mo.banc 1974).

Appellant relies on Niswonger v. Niswonger, 676 S.W.2d 932, 933 (Mo.App.1984), and Walck v. Walck, 651 S.W.2d 559, 561 (Mo.App.1983), as authority for us to reject the trial court’s order in this case. However, the evidence here shows more than a mere increase in age and inflation as the bases for the child support order. The trial court had before it to consider such expenses for the children as food, clothing, medical and dental care, recreation, laundry and cleaning, barbershops, college expenses for the elder son, family counseling, and an increase in appellant’s income. Consequently, the trial court had ample evidence before it in making the determination, and, accordingly, ordered a very modest child support award. We recognize that “[ajlthough primary responsibility for child support rests with the father, the mother may also be called upon to provide support.” Minton v. Minton, 639 S.W.2d 640, 643 (Mo.App.1982).

The second point on which appellant relies is a jurisdictional issue regarding child support. Appellant indicates this is a unique situation, never having been addressed by a Missouri appellate court. The statute giving the trial court authority to modify child support and maintenance awards is § 452.370, RSMo Cum.Supp.1984. While courts do not make awards of maintenance in a modification proceeding, where maintenance was expressly waived at the time the marriage was dissolved, In re Marriage of Noeltner, 569 S.W.2d 8, 11[6] (Mo.App.1978), a similar argument in regard to child support cannot be made. The basic assumption of child support is that a child always needs the support of his or her parents until such child reaches majority, or until such child is emancipated or the parental rights are terminated. A maintenance award, however, is based on the need of a particular spouse at the time of the dissolution, and after the dissolution. Thus, if a spouse is not dependent at the time of the dissolution of the marriage, there is no legal relationship thereafter to reestablish a responsibility. Cf. Jamison v. Churchill Truck Lines, Inc., 632 S.W.2d 34, 35 (Mo.App.1982). With children, however, the parent-child relationship remains until majority.

“A trial court does not lose its jurisdiction by entry of its original final decree. It retains a limited jurisdiction to modify that decree as subsequent changed conditions may require. And if such modification pertains to the custody or future maintenance of a minor, this limited jurisdiction continues until the majority of such minor.” (Emphasis added.) Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323, 327 (1952).

Hayes goes on to say that jurisdiction to determine matters relating to the support and maintenance of minor children remains in the court where the divorce decree was rendered, and matters concerning custody and future support and maintenance of such minors cannot be determined in an independent action. 252 S.W.2d at 327.

The Supreme Court in Lodahl v. Papenberg, 277 S.W.2d 548, 551 (Mo.1955), further clarifies the distinction between future child support, and collection of support that is past due a child from a parent, but not subject to an order of any court.

“Often courts, in granting a divorce, do not (and sometimes cannot, because of want of jurisdiction) make an order providing for the support of a minor child, and in cases wherein the custody of the child has been awarded to the wife, but no provision was made for the child’s support and the wife supports the child, two remedies are available to the divorced wife. One remedy is a proceeding in the divorce case, by motion or otherwise to obtain an order providing for future support; and the other is by independent common-law action to recover for expenses already incurred.”

Therefore, the language of § 452.370.1, RSMo Cum.Supp.1984, stating that “the provisions of any decree respecting maintenance or support may be modified only as to installments accruing subsequent to the motion for modification” is simply a codification of a well established practice whereby Missouri courts have provided for future alimony or maintenance of a spouse only under the divorce or dissolution statutes, leaving open common law remedies for past amounts expended on children.

If we were to accept appellant’s construction of the statute in question, in every future case where a trial court did not make a specific award of child support the custodial parent could never return to court for a child support award. Even if the custodial parent were jobless and destitute, and the child consequently without food or shelter, and the noncustodial parent had become wealthy, the decree could not be modified. The General Assembly could not have intended such an absurd result, nor can we arrive at such a contorted construction. The trial court had jurisdiction to enter its order.

The order appealed from is affirmed.

PREWITT, C.J., concurs in principal opinion and in Judge CROW’s concurring opinion. HOGAN, P.J., and MAUS, J., and ROBERT L. CAMPBELL, Special Judge, concur.

CROW, J., concurs and files concurring opinion.

NORWIN D. HOUSER, Senior Judge, concurs in result.