Abbott v. Perez

• Decision Date: 03 August 2004
• Docket Number: No. ED 83306.,ED 83306.
• Citation: 140 S.W.3d 283
• Parties: Robert ABBOTT, Appellant, v. Teresa PEREZ, Respondent.
• Court: Missouri Court of Appeals

140 S.W.3d 283

Robert ABBOTT, Appellant, v.Teresa PEREZ, Respondent.

No. ED 83306.

Missouri Court of Appeals, Eastern District, Division Four.

August 3, 2004.

Appeal from the Circuit Court, City of St. Louis, David L. Dowd, J Richard J. Eisen, Clayton, MO, for appellant.

Charles P. Todt, Clayton, MO, Daniel R. Schramm, Chesterfield, MO, for respondent.

Nels C. Moss, Jr., Clayton, for Guardian Ad Litem.

PATRICIA L. COHEN, Judge.

Introduction

Dr. Robert Abbott("Husband") appeals the decision of the Circuit Court of the City of St. Louis dissolving his marriage to Dr. Teresa Perez("Wife"), dividing the parties' marital debts, entering custody and child support orders and ordering Husband to pay a portion of Wife's attorneys' fees.

In his appeal, Husband argues that the trial court: (1) improperly conditioned temporary custody of Child on the occurrence of a future event, rendering the judgment indefinite and unenforceable; (2) erroneously granted Wife primary physical and sole legal custody of Child; (3) erroneously awarded retroactive support to Wife and imputed an income of $200,000 per year to Husband; (4) failed to grant Husband the maximum custody allowance in light of the number of days Child is in Husband's custody; (5) erroneously ordered Husband to share in the cost of a private education for Child; (6) erroneously allocated 50% of the marital debts to Husband and 50% of the marital debts to Wife despite the fact that Wife voluntarily stopped working after the parties' separation; and (7) erroneously ordered Husband to pay $16,000 of Wife's attorneys' fees.We affirm all aspects of the trial court's judgment with the exception of the trial court's calculation of retroactive support.On that point alone, we reverse and remand for further proceedings consistent with this opinion.

Statement of the Facts and Proceedings Below

Viewed in the light most favorable to the trial court's decision, the evidence adduced at a four-day hearing established the following: Husband and Wife married on June 6, 1997 in Chicago, Illinois.At the time of their marriage, Husband was engaged in plastic surgery research and Wife was in dental school.In the summer of 1998, Husband and Wife moved to Tampa, Florida so that Husband could begin the plastic surgery residency program at the University of South Florida.

Husband and Wife lived in Florida for three years.Evidence indicates that Husband and Wife had a tumultuous relationship while in Florida.At one point, Wife left Florida and returned to her parents' home near Chicago.During this time, Wife practiced dentistry in Illinois and Husband remained in Florida.Wife testified that Husband persuaded her to return to Florida with a promise that they could start a family.When Wife returned to Florida, she became pregnant.Wife, who is of Bolivian descent, testified that, while she was pregnant, Husband referred to her in an ethnically derogatory fashion, commented on the baby's ethnic heritage and stated that the baby "better not be dark."Husband even suggested that they call the baby "taco" or "burrito."On August 31, 2000, Wife gave birth to Nathaniel Abbott("Child").¹

As a plastic surgery resident, Husband worked approximately 80 hours per week.As a result, Wife alleged that during the first year of Child's life, Wife cared for Child without any assistance from Husband.Husband and Wife also had physical confrontations while in Florida.Husband kicked a hole in a door, grabbed Wife, held her down by the arms and became violently angry.During this time, Husband also verbally abused Wife, repeatedly using extreme profanity and ethnic slurs related to her Bolivian heritage.At trial, Husband admitted to some of the verbal abuse.

Husband and Wife moved to St. Louis, Missouri in June of 2001 when the plastic surgery program at the University of South Florida closed.While in St. Louis, Husband worked as a plastic surgery resident at Washington University and Wife worked as a dentist.With both Husband and Wife working, the parties enrolled Child in daycare.Husband's work schedule in St. Louis was less demanding that his schedule in Florida.As a result, Husband began to help with some of the child-rearing responsibilities.However, Wife continued to be Child's primary caretaker.In fact, despite working full-time, Wife took Child to daycare in the mornings and picked him up after work, prepared dinner, fed and changed Child and took off work when Child was ill or had doctor's appointments.Husband admitted that Wife woke Child in the morning, fed Child and picked up Child from daycare most of the time.Husband also acknowledged that he never stayed home from work when Child was ill.

Husband and Wife's relationship grew progressively more violent while in St. Louis.Husband threw Wife against a closet, punched Wife in the chest with a closed fist and shoved Wife while she was holding Child.Husband testified that Wife was the aggressor in several of the physical confrontations that took place in St. Louis.Wife also admitted that she yelled, screamed, hit and scratched Husband.Wife further admitted slapping Husband on several occasions although she contends the slaps were in response to Husband's derogatory name-calling and foul language.

On February 14, 2002, Wife removed Child from daycare in St. Louis and took him to her parents' home in Burr Ridge, Illinois.Wife admitted that, prior to leaving, she disabled the telephone at the St. Louis apartment to prevent Husband's parents from contacting Husband.²Wife further admitted to calling Husband from Illinois and leaving messages threatening not to return with Child and further threatening to take money from a joint money market account.

In her testimony, Wife attempted to justify her actions on and around February 14, 2002 by explaining that she was extremely ill with high fevers, severe headaches, dizziness and exhaustion.Wife explained that, at that time, Child was also extremely ill.Wife stated that she called Husband, and complained about how sick she and Child were and forewarned Husband that she and Child were going to Chicago whether he liked it or not.Wife and her father returned to St. Louis approximately nine or ten days later.However, Wife did not bring Child with her because both she and Child were still ill.Both Wife and her father testified that Husband became violent toward both of them when they returned to the apartment in St. Louis.Husband and Wife separated in February of 2002.

Husband filed a Petition for Dissolution of Marriage on July 1, 2002.In his Petition, Husband sought sole legal and physical care, custody and control of Child, subject to Wife's reasonable rights to visitation and temporary custody.Husband also sought child support, both generally and pendente lite, retroactive to July 1, 2002.Husband further requested a set-off of his non-marital property and an equitable division of the couple's marital property and debts.Wife filed a Cross-Petition for Dissolution of Marriage that same day.In her Cross-Petition, Wife sought sole legal and physical care, custody and control of Child, subject to Husband's reasonable rights to visitation and temporary custody, as well as authorization to relocate Child from St. Louis to Burr Ridge, Illinois.Wife also sought child support, both generally and pendente lite, retroactive to July 1, 2002.Wife further requested the court to set apart her separate property, an equitable division of the couple's marital property and debts, attorneys' fees and costs.

On July 1, 2002, the parties also filed a Consent Judgment and Order Pendente Lite agreeing, inter alia, that during the pendency of the proceeding: (1) Husband and Wife shall have joint legal and joint physical custody of Child; (2) neither party will remove Child from Missouri for more than ninety days without court authorization (3) Husband shall pay Wife $400.00 per month for support of Child; (4) Husband shall maintain insurance on Child through his employment; (5) neither party will transfer, encumber, conceal or dispose of property except in the ordinary course of business; and (6) Husband shall notify Wife of his call schedule at least two weeks in advance of his being on call.

The court heard the case on the merits from March 4, 2003 through March 7, 2003.At the time of trial, Husband was working as a plastic surgery resident at Washington University earning a gross monthly income of $3,692.Husband's residency was scheduled to terminate on June 30, 2003.At the time of trial, Husband did not have any job offers.Husband testified that, although he was looking for jobs in places other than Missouri, he would like to stay in St. Louis at the end of his residency because both he and Child had fostered friendships and relationships in St. Louis.Husband explained that a suitable job for him upon completion of his residency would pay $175,000 each year.A vocational rehabilitation counselor testified at trial that a plastic surgeon working in Chicago would earn a median base salary of $222,868.

At trial, Wife explained that she last worked as a full-time dentist on June 28, 2002 when her contract at Premier Dental in St. Louis expired.Wife's 2001 federal income tax return showed gross receipts for Wife's yearly income of $88,570.Wife also suggested that her contract with Premier Dental was not renewed because of the number of days she missed due to Child's illnesses, her own illness and appointments with her attorney.Wife admitted, however, that she had previously told her employer that she did not plan to return because she hoped to move to Chicago.The vocational rehabilitation counselor testified that Wife was employable as a dentist in St. Louis at a salary of approximately $100,000.

Both Husband and Wife offered expert testimony regarding their respective proposed custody arrangements.Husband's expert, Dr. David Clark, classified himself as a...