Bold v. Bold, 77995

• Decision Date: 19 December 1995
• Docket Number: No. 77995,77995
• Citation: 912 S.W.2d 477
• Parties: Ellyn C. BOLD, Appellant-Respondent, v. Lawrence R. BOLD, Respondent-Appellant.
• Court: Missouri Supreme Court

Page 477

912 S.W.2d 477

Ellyn C. BOLD, Appellant-Respondent, v. Lawrence R. BOLD, Respondent-Appellant.

No. 77995.

Supreme Court of Missouri En Banc.

Dec. 19, 1995.

Rehearing Denied Jan. 23, 1996.

Lynn E. Fox, Allen S. Russell, Kansas City, for appellant-respondent.

Michael J. Albano, John W. Dennis, Jr., Independence, for respondent-appellant.

COVINGTON, Judge.

Ellyn Bold and Lawrence Bold both appeal various portions of a dissolution decree. The court of appeals affirmed in part and reversed in part. This Court granted transfer to consider only Mr. Bold's exception regarding medical expenses for the couple's child. Affirmed in part; reversed and remanded in part.

This factually complex dissolution is before this Court after extensive hearings, motions and rulings below. On January 26, 1989, Ms. Bold filed for dissolution. The trial judge referred the case to a special master who held sixteen days of hearings over the course of six months, the last of which was held on June 7, 1990. On July 3, 1991, the master adopted Ms. Bold's proposed report, along with her findings of fact and conclusions of law, as his own report and recommendation. Upon Mr. Bold's objection, the trial court issued its first decree in the matter, sustaining the objections in part. Ms. Bold's motion to amend, and a subsequent evidentiary hearing, delayed the trial court's final decree until November 23, 1993.

The final dissolution decree awarded to the parties joint custody of the couple's only child, Merritt. The court ordered that the child reside with Ms. Bold and that Mr. Bold pay $1,400 per month in child support. It further required that Mr. Bold pay Merritt's medical expenses. Additionally, Mr. Bold was required to pay Ms. Bold $3,000 in rehabilitative maintenance for a minimum of six months and until Mr. Bold's house was sold. The extensive decree designated the property at issue as marital or non-marital then allocated to the parties their respective interests. The decree also provided for the payment of various marital debts.

Among his assertions on appeal, Mr. Bold contends that the trial court erred in the manner in which it ordered him to pay not only Merritt's health insurance, but, also, all non-covered medical expenses. The trial court's medical expense provision reads as follows:

Respondent shall maintain health, hospitalization and major medical insurance for [Merritt Bold] until the emancipation of the child or until further order of the Court. Respondent shall be responsible for and pay any and all applicable insurance premiums, together with the applicable deductible or co-payment. Respondent shall also pay 100% percent of the cost of any non-covered or excluded treatments, procedures or conditions.

Mr. Bold contends the requirement that he pay one hundred percent of the cost of any "non-covered or excluded treatments, procedures or conditions" is too vague to be enforceable and unreasonably excessive in light of his financial condition.

In Lay v. Lay, 912 S.W.2d 466 (Mo. banc 1995) and Krane v. Krane, 912 S.W.2d 473 (Mo. banc 1995), this Court considered similar language in court decrees that required that an obligor be responsible for certain medical expenses for the minor children. Unlike Lay and Krane, however, the language at issue in this case does not emanate originally from an agreement entered into by the parties and later incorporated into a trial court's order. The medical expense provisions quoted above are included in an amended decree of dissolution entered by the trial court, dated November 26, 1993. For this reason the present case is entirely distinguishable from Lay and Krane.

This Court is generally bound by the statutory pronouncements of the General Assembly regarding dissolution law. Cates v. Cates, 819 S.W.2d 731, 734 (Mo. banc 1991). Medical expense provisions are governed by section 454.603, RSMo 1994, which states in pertinent part:

2. With or without the agreement of the parents, the court or the division may require that a child be covered under a health benefit plan. Such a requirement shall be imposed whenever a health benefit plan is available at reasonable cost through a parent's employer or union. If such a plan is not available at reasonable cost through an employer or union, the court or the division, in determining whether to require a parent to provide such coverage shall consider:

(1) The best interests of the child;

(2) The child's present and anticipated needs for medical care;

(3) The financial ability of the parents to afford the cost of a health benefit plan; and

(4) The extent to which the cost of the health benefit plan is subsidized or reduced by participation on a group basis or otherwise.

....

5. The court shall require the obligor to be liable for all or a portion of the medical or dental expenses of the minor child that are not covered by the required health benefit plan coverage if:

(1) The court finds that the health benefit plan coverage required to be obtained by the obligor or available to the obligee does not pay all the reasonable and necessary medical or dental expenses of the minor child;

(2) The court finds that the obligor has the financial resources to contribute to the payment of these medical or dental expenses; and

(3) The court finds the obligee has substantially complied with the terms of the health benefit coverage.

At issue is the validity of the trial court's order requiring that Mr. Bold be financially responsible for one hundred percent of all "treatments, procedures or conditions" not covered by or excluded from his insurance policy. Specifically, Mr. Bold disputes the trial court's ruling as it applies to treatment for Merritt for a pre-existing condition that was excluded from coverage under Mr. Bold's current medical insurance policy.

Prior to making any award to Mr. Bold for non-covered medical expenses, the trial court was required to take into account the requirements of section 454.603.5. This Court cannot ascertain from the record whether the trial court followed the requirements contained in section 454.603.5. The cause, therefore, is remanded for clarification on this issue.

As stated above, both appeals contain numerous other issues. Being in agreement with the court of appeals' disposition of the remaining issues, this Court sets forth verbatim and adopts the relevant portions of the unpublished opinion of the court of appeals authored by the Honorable Don W. Kennedy:

HOMEOWNER'S INSURANCE PROCEEDS

The parties in November of 1991 received $27,170.26 from insurance for a burglary loss. Wife received this check. She testified she had used the proceeds to replace assets that had been stolen, and had used the balance on living expenses, all before November 10, 1993 (date of last evidentiary hearing before the trial court).

The trial court decree awarded wife half the insurance proceeds ($13,585.13) as marital property, and made no award of the balance.

Husband complains in his appeal that his half of the insurance proceeds ($13,585.13) was erroneously omitted from the decree, and should have been awarded to him. There was no error in this omission.

The court apparently believed that none of the insurance proceeds were left, and the court did not consider wife's use of the proceeds to have been improvident, so as to justify charging wife with this $13,585.13, under the rule of Sinclair v. Sinclair, 837 S.W.2d 355 (Mo.App.1992).

Wife does not seek affirmative relief against the inclusion of $13,027 in her award of marital property, but only resists husband's complaint of the omission of $13,027 from his marital property award.

OMISSION OF CREDIT CARD AWARD

Husband complains that the court did not award him $6,044.79 which the wife had charged to husband's credit card accounts. These were charges incurred by wife during the pendency of these proceedings, and during a time husband, so husband says, was paying wife temporary support.

Wife testified, on the other hand, that the charges were incurred during a time when she was receiving no maintenance or child support. The trial court could believe this testimony. The decree recited that the charges were incurred from January 1 and June 30, 1989, and recited, furthermore, that these charges had been taken into account in allocating marital property and debts.

The trial court was not in error in failing to award husband reimbursement of credit card charges in the sum of $6,044.79.

BLOUSTEIN CONTRACT RECEIVABLE

The court awarded to husband, as marital property, a contract receivable at a value of $65,840. Husband says this should not be included in marital property, since it had been paid off before the time of the November 26, 1993, decree, and was no longer in existence.

The contract was an installment contract, originally $100,000, bearing no interest. At the time of the commissioner's July 3, 1991 order, its balance was $91,840. Husband's December 31, 1991, and his February 11, 1992, statements show the value of the contract as $65,840, the amount at which the trial court valued the contract in the judgment. By October 22, 1993, husband lists the balance on the Bloustein contract as zero. On September 2, 1993, the initial judgment in the case lists the contract at $65,840, and the final judgment gives the Bloustein contract that value.

We note that the contract was wholly paid during the pendency of these proceedings. If husband had put the proceeds into marital property, he would have a good argument that the designation of the paid-off contract as marital property would have been duplicative. However, husband made no attempt to show that its proceeds went into other marital property, and we cannot assume that it did go into marital property. It could as well have swelled his non-marital estate.

We find no error in listing the Bloustein contract receivable as marital property, even though it had been paid and was no longer in existence. S.L.J....