Ansevics v. Cashaw, WD

• Decision Date: 16 August 1994
• Docket Number: No. WD,WD
• Citation: 881 S.W.2d 247
• Parties: Nancy L. ANSEVICS, Appellant, v. Roger L. CASHAW, Respondent. 48573.
• Court: Missouri Court of Appeals

Page 247

881 S.W.2d 247

Nancy L. ANSEVICS, Appellant, v. Roger L. CASHAW, Respondent.

No. WD 48573.

Missouri Court of Appeals Western District.

Aug. 16, 1994.

Theodore M. Kranitz, St. Joseph, for appellant,

Michael P. Harris, St. Joseph, for respondent.

Before HANNA, P.J., and BRECKENRIDGE and ELLIS, JJ.

BRECKENRIDGE, Judge.

Nancy Ansevics appeals from an order modifying a decree of dissolution with respect to child support and visitation rights. The judgment is affirmed in part, reversed in part, and remanded.

Nancy Ansevics and Roger Cashaw were married on December 10, 1982 and separated on June 30, 1988. During the marriage, the parties adopted Michael Aaron Ansevics-Cashaw (Aaron), who was born on October 26, 1983. Mr. Cashaw is black and Christian. Dr. Ansevics is white and Jewish. Aaron is bi-racial and the parties agreed to raise him in the Jewish faith. Dr. Ansevics filed her petition for dissolution on March 20, 1989. On July 18, 1989, the trial court entered its decree dissolving the marriage. Dr. Ansevics was awarded custody of Aaron and Mr. Cashaw was allowed supervised visitation. Mr. Cashaw was ordered to pay child support in the amount of $154.00 per month.

On June 21, 1993, Mr. Cashaw filed a motion to modify the decree of dissolution seeking unsupervised visitation with Aaron. He also requested attorney fees. Dr. Ansevics filed an answer and countermotion seeking an increase in child support. In October 1993, the trial court entered a modification order increasing the amount of child support to $275.00 per month and granting unsupervised visitation privileges to Mr. Cashaw. The court ordered Dr. Ansevics to pay Mr. Cashaw's attorney fees in the sum of $2,000.00. The court also ordered Mr. Cashaw and Aaron to participate in counseling with Teresa Humphreys, a licensed psychologist.

Dr. Ansevics raises four points on appeal. In her first point, she contends that she was denied equal protection of the law and the judgment was against the weight of the evidence because the trial court's decree failed to provide for the observance of Jewish holidays and holy days in the visitation schedule. Dr. Ansevics claims the trial court should have entered a decree that provided a balanced accommodation of the religious practices, obligations and observances of both parties.

Our standard of review in these cases is well-established. The trial court's decree will not be set aside unless there is no substantial evidence to support it, it is against the weight of the evidence or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "Appellate courts should exercise the power to set aside a decree or judgment on the ground it is 'against the weight of the evidence' with caution and with a firm belief that the decree or judgment is wrong." Id. The evidence is viewed in a light most favorable to the prevailing party and contradictory evidence is disregarded. Rothfuss v. Whalen, 812 S.W.2d 232, 238 (Mo.App.1991).

Dr. Ansevics fails to raise a proper equal protection claim. Like the appellant in Tyler v. Mitchell, 853 S.W.2d 338, 341 (Mo.App.1993), Dr. Ansevics is claiming that she was denied a benefit granted to others. As stated in Tyler:

The equal protection clause guarantees that similar individuals will be dealt with in a similar manner by the government. It does not reject the government's ability to classify persons or "draw lines" in the creation and application of laws, but it does guarantee that those classifications will not be based upon impermissible criteria or arbitrarily used to burden a group of individuals.

....

It should be noted that the equal protection guarantee has nothing to do with the determination of whether a specific individual is properly placed within a classification. Equal protection tests whether the classification is properly drawn. It is the guarantee of procedural due process that determines what process is necessary to find that an individual falls within or outside a specific classification. Equal protection deals with legislative line drawing and procedural due process with the adjudication of individual claims.

Id. (quoting J. Nowak, R. Rotunda, and J. Young, Handbook on Constitutional Law, 519 (1978)). Dr. Ansevics' complaint that the modification order does not provide a balanced accommodation of the religions of both parties is not an equal protection issue.

Dr. Ansevics also asserts in her point relied on that the order of visitation is against the weight of the evidence. The record from the hearing on the motion to modify includes Mr. Cashaw's acknowledgement that he consented to Aaron being raised in the Jewish faith. Dr. Ansevics testified that she and Aaron observe the Jewish holidays of Rosh Hashanah, Yom Kippur, Hanukkah, Pesach (Passover) and Purim. She further testified that she did not consider Christian holidays to be meaningful. Mr. Cashaw indicated little knowledge of Jewish holidays, but testified that he was willing to accommodate Aaron being raised in the Jewish faith. Mr. Cashaw requested that he have visitation with Aaron on Christmas and other holidays in alternating years. The trial court's order awarded Mr. Cashaw visitation on Christmas, Christmas Eve and Easter in alternating years, but made no provision for Jewish holidays.

On this record, the order of visitation's failure to provide for Jewish holidays, while dividing the Christian holidays among the parties, is against the weight of the evidence and requires reversal. Since this case is being reversed and remanded on other grounds, the trial court is directed on remand to issue an order of visitation addressing both Jewish and Christian holidays. The weight of the evidence requires an order which permits Dr. Ansevics to have Aaron in her custody on Jewish holidays and awards Mr. Cashaw visitation on Christian holidays every year, not just alternating years. On remand, the trial court may also consider and resolve conflicts arising when Jewish and Christian holidays are celebrated on the same day.

Although this court reverses the trial court's schedule of visitation on religious holidays, the court affirms all other provisions of the trial court's order of visitation. Contrary to Dr. Ansevics' arguments on appeal, there is no plain error in the trial court's order allowing Mr. Cashaw to have visitation at times which conflict with Aaron's religious training. Dr. Ansevics testified that raising Aaron in the Jewish faith required him to attend temple on Tuesday, Thursday and Sunday, every week for the next six years. Considering that Mr. Cashaw lives in Kansas City and Dr. Ansevics now lives in Jefferson City, a request that Mr. Cashaw not be allowed visitation which would conflict with Aaron's religious training would virtually deny Mr. Cashaw meaningful weekend visitation.

Mr. Cashaw testified that he would be fully accommodating with regard to Aaron's upbringing in the Jewish faith. He also testified that he was willing to work with Dr. Ansevics to make the necessary arrangements so as not to interfere with Aaron's religious training. On this record, there is sufficient evidence to support the trial court's ruling that weekend visitation between Mr. Cashaw and Aaron is in Aaron's best interests, despite the fact that such visitation conflicts with Aaron's religious training.

For her second point, Dr. Ansevics contends the trial court erred in ordering her to pay Mr. Cashaw's attorney fees. Dr. Ansevics argues that § 452.400, RSMo Cum.Supp.1993, ¹ rather than § 452.355, governs the award of attorney fees. Dr. Ansevics asserts that under § 452.400.4 an unreasonable denial or interference with visitation is required to support an attorney fee award. She also claims the trial court erred in basing its award of attorney fees upon a finding that Dr. Ansevics' denial of Mr. Cashaw's motion to modify was unreasonable and unfounded.

Trial courts have broad discretion in awarding attorney fees. Mabon v. Mabon, 833 S.W.2d 488, 489 (Mo.App.1992). An award of attorney fees will not be overturned on appeal absent a clear abuse of discretion. Meservey v. Meservey, 841 S.W.2d 240, 248 (Mo.App.1992). The challenging party must show that the trial court's award was "clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock one's sense of justice." Id.

Contrary to Dr. Ansevics' argument, § 452.355 governs the award of attorney fees in this case, as § 452.355 is the general authority for awards of attorney fees in domestic relations cases. Section 452.400.4 is not applicable because it pertains to proceedings to enforce visitation rights. Pursuant to § 452.355.1, the court may consider all relevant factors, including the financial resources of both parties, when determining whether to grant a request for attorney fees. "One spouse's greater ability to pay is sufficient to support an award of attorney's fees to the other spouse." Meservey, 841 S.W.2d at 248. Another relevant factor when awarding attorney fees is the extent that the opposing party's conduct required the expense of attorney fees. T.B.G. v. C.A.G., 772 S.W.2d 653, 655 (Mo. banc 1989). When considering the opposing party's conduct, "[t]he trial court is in a better position not only to judge the credibility of the witnesses but also the sincerity in their positions, which might not be completely revealed by the record." Id.

In this case, the trial court made the following ruling with regard to attorney fees:

After considering all relevant factors, including the financial resources of the parties and the petitioner's unreasonable and unfounded position in denying respondent's Motion to Modify Visitation, the respondent is granted judgment against the petitioner in the amount of $2,000.00 as and for respondent's attorney's fees.

The record shows that at the time of the hearing, Dr. Ansevics was a licensed psychologist as well as the president and...