Leahy v. Leahy

• Decision Date: 29 June 1993
• Docket Number: No. 75074,75074
• Citation: 858 S.W.2d 221
• Parties: Juliana Harris LEAHY (Clapp), Respondent, v. Joseph Michael LEAHY, Appellant.
• Court: Missouri Supreme Court

Page 221

858 S.W.2d 221

Juliana Harris LEAHY (Clapp), Respondent, v. Joseph Michael LEAHY, Appellant.

No. 75074.

Supreme Court of Missouri,

En Banc.

June 29, 1993.

As Modified on Denial of Rehearing Aug. 17, 1993.

James P. Moroney, Kansas City, for appellant.

Gail Berkowitz, Kansas City, for respondent.

THOMAS, Judge.

This is an action to modify child support. On February 23, 1976, the Circuit Court of Jackson County entered an order dissolving the marriage of Joseph Leahy and Juliana Clapp. Juliana Clapp was given custody of the couple's minor child, Anna Harris Leahy, who was born on February 28, 1973. Joseph Leahy was ordered to pay child support of $165.00 per month. This child support order was modified in 1989 to $500.00 per month. On December 27, 1991, another motion to modify child support was filed in Jackson County. This 1991 motion to modify child support gives rise to the issues presented in this case.

After the dissolution, both Mr. Leahy and Ms. Clapp remarried. Ms. Clapp currently resides in Connecticut. Mr. Leahy resides in Missouri. Mr. Leahy has five additional children from his second marriage.

This 1991 motion to increase child support was based on an increase in the costs of Anna's living expenses and Joseph Leahy's increased income and ability to pay. Anna's increased expenses were due in part to her enrollment at Boston University in the fall of 1992. The costs of attending Boston University for 1992, including tuition and room and board, is $23,522 or $1,960 per month. Anna also indicated an additional expense of $300.00 per month for books, clothing, recreation, and other personal expenses.

The motion to increase child support was set for hearing on April 29, 1992. Prior to this date, Ms. Clapp had served a discovery request on Mr. Leahy on January 11, 1992. When there was no response to this request, a second request was made on March 17, 1992. Mr. Leahy still had not responded to any of the discovery requests as of April 29, 1992. Therefore, during the off-the-record hearing on April 29 and 30, 1992, the court heard arguments by both parties. According to Ms. Clapp's brief, the trial court directed Ms. Clapp's attorney during this hearing to draft a proposed order based on the discussion at the hearing and submit the proposed order to Mr. Leahy's attorney for his approval. Mr. Leahy's attorney refused to sign this order. The proposed order was then submitted to the court. The court signed this order on May 27, 1992. This order encouraged Ms. Clapp to help facilitate contact between Anna and her father, required Mr. Leahy to respond to discovery requests, and required payment to Ms. Clapp's attorney of "attorney's fees in the sum of $1,500.00 as and for a portion of Petitioner's fees incurred in an attempt to ascertain records pursuant to interrogatories and requests for documents."

During the hearing in April, Mr. Leahy advised the court of his poor relationship with his daughter. Because the issues of visitation and custody were not before the court and Mr. Leahy did not choose to put these issues before the court, the trial judge agreed to meet informally with Mr. Leahy concerning the problems he was having with his daughter. It is not clear whether the trial judge or Mr. Leahy's attorney requested this meeting. Mr. Leahy met with the trial judge in chambers on May 22, 1992, concerning these visitation problems. There is no record of the meeting. Neither of the parties' attorneys were present for the meeting.

After the hearing in April, Mr. Leahy still failed to respond to Ms. Clapp's discovery requests. On May 27, 1992, the trial judge signed the order, discussed above, requiring Mr. Leahy to respond to all discovery requests and to pay attorney's fees of $1,500.00 for the portion of fees Ms. Clapp's attorney had incurred in enforcing the discovery requests.

On Friday, June 5, and Monday, June 8, 1992, the motion to modify child support was heard. The following evidence was presented concerning the financial circumstances of the parties. Anna's mother, Juliana Clapp, works as a librarian at Guilford Free Library in Guilford, Connecticut. She works thirty hours per week and earns a little over $10.00 per hour. Her gross monthly income is $1,371.50. Anna's father, Joseph Leahy, is the president and sole shareholder of Jovial, Inc. The business of Jovial, Inc., is doing voice overs for advertisements and narrations. Joseph Leahy's voice is the primary asset of the corporation. The trial court found that the Jovial, Inc., tax return for 1989 reflected gross sales of $302,450 and compensation to Joseph Leahy in the amount of $193,993. The 1990 income tax return for Jovial, Inc., reflected gross sales of $378,679 and compensation to Joseph Leahy in the amount of $248,000. Joseph Leahy's personal income tax returns reflected wages, salaries, and tips as follows: 1988, $129,893; 1989, $208,134; and 1990, $248,941; a 1991 tax return had not yet been filed at the time of the trial. The bank records for Jovial, Inc., from January 1, 1992, to April 30, 1992, reflected gross deposits of $157,080.85.

The trial court found that Anna's expenses were reasonable. The trial court further held:

That there has been a change of circumstances so substantial and continuing as to make the Court's prior orders as to child support unreasonable, in that:

a. Respondent has enjoyed a substantial increase in income;

b. That the minor child shall be attending college beginning August, 1992;

c. That the attending college expenses were unknown at the time of the prior order; and

d. That the Form 14 reflects a greater than twenty percent (20%) increase in the child support owing from Respondent to Petitioner.

The trial court held that, based on the income of the parties, Form 14, which gives the guidelines for the amount of child support based on the parties' incomes, reflected $1,000 per month for child support. The trial judge further held that, based on the comments to Form 14, college expenses are not taken into consideration within the chart and that the evidence presented supported Anna's educational needs to be $1,259 per month. The judge then determined that, based on Joseph Leahy's income, he was responsible for 92% ($2,080.00 per month) of Anna's support and that Juliana Clapp is responsible for 8% of Anna's support. Joseph Leahy was also ordered to pay $5,721.50 of the $7,221.50 of Juliana's attorneys fees because the court determined that this type of proceeding generally costs a party $1,500.00 and because of Mr. Leahy's actions Ms. Clapp actually incurred $7,221.50 to bring this action.

This Court has exclusive appellate jurisdiction over this matter because Mr. Leahy asserts that section 452.370 is unconstitutional. We affirm the decision of the trial court.

Mr. Leahy's Ex Parte Conference with the Trial Judge

During hearings on April 29 and 30, 1992, Mr. Leahy attempted to assert various objections and complaints based upon the poor relationship that exists between him and his daughter Anna. The trial judge attempted several times to explain that these matters were not relevant in this lawsuit because visitation was not an issue; the judge even invited Mr. Leahy to amend his petition to make this an issue, but Mr. Leahy did not do so. In an effort to mitigate this problem, it was suggested that Mr. Leahy would meet with the trial judge in chambers and discuss the unsatisfactory relationship that exists between himself and his daughter and possible solutions. It is not clear whether the trial judge or Mr. Leahy's attorney suggested the meeting, but it is clear that Mr. Leahy, Mr. Leahy's attorney, Ms. Berkowitz (who is Ms. Clapp's attorney), and Ms. Clapp (who was directly advised by her attorney that this meeting was to occur) all knew about the proposed meeting and the subject of the discussions (which did not relate to the issues before the court). It is also clear that no one objected or raised any question about the proposed meeting with the judge. Moreover, Mr. Leahy, who is now asserting this as a basis of reversal on appeal, participated in the in-chambers conference and made no objection either at the time or at the trial two weeks later.

Mr. Leahy asserts that the in camera, off-the-record meeting between himself and the trial judge on May 22, 1992, violated Supreme Court Rule 2, the Code of Judicial Conduct. Specifically, Mr. Leahy asserts that the trial judge violated Canon 3 A(4) and 3 C(1)(a) of Rule 2. Canon 3 A(4) provides in pertinent part:

A judge should accord to every person who is legally interested in a proceeding and the person's lawyer full right to be heard according to law and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding....

Canon 3 C(1) provides:

A judge should recuse in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where the judge:

(a) has a personal bias or prejudice concerning the proceeding; ....

We find no merit in Mr. Leahy's contention. We do not believe that this sort of conference, which most nearly resembles a settlement conference with the judge conferring first with one party and then the other, violates either of the foregoing rules, and, in any event, it would be for Ms. Clapp not Mr. Leahy, an active party to the conference, to object. We do not recommend this procedure; it would certainly be preferable to have this type of meeting on the record with all of the attorneys present. However, while we can understand that this might be objectionable to a party or an attorney who was not present, we are hard pressed to understand how it could prejudice Mr. Leahy. We reject this claim as a basis for Mr. Leahy's motion for a new trial.

Increased Child Support

Mr. Leahy contends that the trial court's order of child support modification must be set aside for the following...