B------ v. B------

• Citation: 673 S.W.2d 819
• Decision Date: 29 June 1984
• Docket Number: No. 46225,46225
• Parties: B______, et al., Plaintiff-Respondent, v. B______, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 819

673 S.W.2d 819

B______, et al., Plaintiff-Respondent, v. B______, Defendant-Appellant.

No. 46225.

Missouri Court of Appeals,

Eastern District,

Division One.

June 29, 1984.

Gary J. Morris, Clayton, for defendant-appellant.

Edward L. Joyce, St. Louis, for plaintiff-respondent.

KELLY, Presiding Judge.

Frederick E.B. brings this appeal from a judgment of the Circuit Court of St. Louis County, Missouri, declaring him to be the father of Nicole B., a minor, one of the plaintiffs in the case; awarding custody of said minor child to Carol B., a plaintiff in the case; requiring that he pay $60.00 per week as child support, $1,895.00 for medical expenses incidental to the birth of said minor child; $975.00 as attorney fees in connection with the trial proceedings and costs of $525.00 to Carol B. For reasons set out hereinafter we affirm in part and reverse in part.

The respondents filed their petition in the Circuit Court of St. Louis County on October 6, 1981, wherein they sought a declaration of parentage, custody of the minor child in Carol, reimbursement of medical expenses incurred by Carol incidental to the birth of the child, and child support. On the same day the petition was filed Carol B. was appointed next friend for her daughter, Nicole. Appellant wrote a letter to the trial court dated October 15, 1981, and filed with the court on October 19, 1981, in which he stated, "My plea to the above petition is not guilty." Seven paragraphs of this letter contained statements which constitute a denial that he parented the child, advised the court that he had insufficient funds to retain counsel to represent him in the proceeding, and requested that the trial court advise him as to what action he might take to defend himself inasmuch as he had no way to finance the action through a lawyer.

No lawyer entered an appearance on behalf of appellant; however he answered two sets of interrogatories and complied with a court order to submit to serological testing by the American Red Cross.

The cause came on for trial on June 3, 1982, and appellant appeared pro se. According to the evidence appellant and Carol B. were married for a brief time between August 5, 1978, and July 5, 1979, when the marriage was dissolved. Nevertheless between December of 1979 until July of 1980 she lived with appellant in his home at 4456 Chippewa in the City of St. Louis. During January thru April they had intercourse. In May of 1980, Carol learned she was pregnant and Nicole was born on December 26, 1980. During the months she lived with appellant she did not go out with other men nor associate with any other man. An expert from the American Red Cross testified that from the blood tests made on blood taken from appellant and the respondents, appellant could not be excluded as the father of Nicole. The child, Nicole, has a red birthmark on her neck at the hairline. Appellant has such a mark at the same place on his neck. Several others in appellant's family have the same type of birthmark. Appellant's son by a prior marriage also has the same birthmark.

Appellant admitted that he had intercourse with Carol a few times between January and April of 1980 and that he helped Carol with a "lot of money" beyond that required in their agreement in connection with the dissolution of their marriage; that he gave her checks to pay her doctor bills during the course of her pregnancy with Nicole, and that he gave her $500.00 cash a few days before she entered the hospital so she could be admitted because she had no insurance. He was with Carol in the delivery room when Nicole was born, but he claims he was there because Carol wanted him there so it would "look better for the family."

Appellant presents eight Points which he contends entitles him to a reversal of the trial court's judgment. His first Point is that the trial court lacked subject- matter jurisdiction to determine the issues of paternity and child support. There is no merit in this contention.

In this proceeding the mother sought individually and as next friend of the minor child to obtain a declaration of paternity against the alleged father, reimbursement for necessary medical expenses incident to the birth of the child, and support money for the child in a proceeding under the Declaratory Judgment Act, Ch. 527. K.D.R. v. D.E.S., 637 S.W.2d 691, 694 (Mo. banc 1982). Accordingly, the procedures of the Declaratory Judgment Act are to be followed.

Assuming, although not deciding, that the provision of the Uniform Child Custody Jurisdiction Act, §§ 452.440, 452.550 RSMo 1978 ¹ applies, jurisdiction under the Act is governed by § 452.450. The court which is competent to decide child custody matters has jurisdiction to make a child custody determination if the state is the home state of the child at the time of the commencement of the proceeding, it is in the best interest of the child that a court of this state assume jurisdiction because the child and his parents have a significant connection with the state, or the child is physically present in the state and it appears that no other state would have jurisdiction under the prerequisites substantially in accordance with subdivision (1), (2) or (3) of § 452.450.

Respondents, in their verified petition, alleged that they resided at "5612 Wild Brook, St. Louis, Missouri 63129" from the date of the birth of the child, December 26, 1980, to the "present." The petition was filed on October 6, 1981. Appellant failed to deny these allegations in respondent's petition and they are therefore taken as admitted. Rule 55.09. The record before us is devoid of any evidence that either parent or the child had any contact or relationship with any state other than Missouri, nor has appellant made any contention that there was.

Under these circumstances we rule this Point against appellant.

Appellant's second and third Points attack the sufficiency of the evidence to support the judgment of the trial court that he is the father of the child.

In a paternity action, involving a child born out of wedlock, a prosecutrix must establish paternity by a preponderance of the evidence, unaided by the presumption of legitimacy afforded by marriage. Stegemann v. Fauk, 571 S.W.2d 697, 701 (Mo.App.1978). In this court tried case our standard of review is set out in Rule 73.01(c)(1) and Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We must sustain the decree or judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is against the weight of the evidence with caution and with a firm belief that the decree or judgment is wrong.

We conclude that there was substantial evidence to support the trial court's finding that appellant is the parent of the minor child.

Appellant's Points IV, V, VI and VII are directed against the award to respondents of $60.00 per week child support, $1,895.09 expenses incidental to the birth of the child, $975.00 attorney fees, $450.00 for the serological test conducted by the American Red Cross, and $75.00 fee for the expert witness who testified concerning her interpretation of the blood tests.

Appellant's claim of error as to the child support award is that there was no substantial evidence of his financial resources and needs, and, even if there was some evidence to support the award, an amount of $60.00 per week is excessive because there is no substantial evidence to show (1) his financial condition and needs, (2) the expenses necessary to rear the child, and (3) the financial condition of the plaintiff.

In Missouri the statutory provision relative to the rights and obligations of parents to support their children entitles a child born out of wedlock a right to support equal to that of a child born in wedlock. R------ v. R------, 431 S.W.2d 152, 154 (Mo.1968). The factors a trial court should consider in making a determination of child support are enumerated in § 452.340. ²

The record on appeal reveals that respondent Carol submitted a signed and notarized monthly expense statement attached to her petition, and according to this document her monthly expenses were $647.35 and those of the child, $410.00. At trial she testified she earned $400.00 a month, and requested that she be awarded $300.00 per month as "partial support" for the child.

However, the evidence of the financial condition of appellant was not substantial. He testified that he owned a restaurant and lounge in the City of St. Louis, and that he was a manufacturer's agent for two companies which manufactured body and shop equipment, but that one of these was "going under." His taxable income for 1981 was "right at $17,000.00." In his "Answer" he stated that he has six children of a prior marriage and that he has been paying child support to his first wife for eleven years, but he did not specify the monetary amount involved in these support payments.

A father has the primary responsibility for support of his child and, where he is the non-custodial parent, one of the factors to be considered in allocating child support is the financial resources and needs of said non-custodial parent. § 452.340(6). In determining the proper amount of child support, courts traditionally have considered the entire circumstances of the father and not just his income. Fugate v. Fugate, 510 S.W.2d 705, 706 (Mo.App.1974). The court should consider the present income of the father as well as his assets and liabilities and any other factors relevant to his ability to provide support. McNultey v. Heitman, 600 S.W.2d 168, 174 (Mo.App.1980).

The transcript of the evidence in this case consists of twenty-six pages. During plaintiffs' case, one and one-half pages are devoted to establishing the needs of the child to support...