Boyer v. Boyer, s. KCD
| Decision Date | 12 June 1978 |
| Docket Number | Nos. KCD,s. KCD |
| Citation | 567 S.W.2d 749 |
| Parties | Karl M. BOYER, Appellant, v. Sherry I. BOYER, Respondent. 29325, KCD 29524. |
| Court | Missouri Court of Appeals |
Carl E. Laurent, Independence, for appellant.
Donald L. Allen, Lee's Summit, for respondent.
Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
From a decree dissolving his marriage, the husband appeals as being excessive those portions which ordered him to pay child support and attorneys' fees on behalf of the wife.
The husband was 23 years old at the time of trial. He had entered the Army at age 18 and had married the respondent approximately a year later in 1972. Three years after that, in February, 1975, the husband left the Armed Service.
Following that, the husband was on unemployment compensation for six months. He then entered the University of Missouri at Kansas City as a student in September, 1975. The parties separated on September 18, 1976, at which time the husband was in his second college year majoring in geology. His sole source of income was payments under the G.I. Bill of $390 per month, against which he testified that he had total monthly expenses living alone of $320.
At the time of trial the wife was working full time, receiving take home pay of $125 per week. The living cost for her two children according to the figures given by her in testimony totaled $310 per month. During the period of more than three months that intervened between the separation and date of trial, the husband had made contributions toward child support totaling only $20. The wife had managed to make financial ends meet by borrowing money from her father.
Judge Peters in the trial court awarded child support of $150 per child per month and also ordered the husband to pay the wife's attorney fee in the amount of $500. When the husband appealed from that award, the wife filed a motion for costs on appeal. This motion came for hearing before Judge Gant, who awarded $1,000 for attorneys' fees and the costs of printing on appeal. The husband took a second appeal from Judge Gant's ruling, and the two appeals have been consolidated in this court.
The parties are in agreement with respect to the general principles of law which require that an award of child support and of attorneys' fees to the wife must give regard not only to the needs of the wife and the children, but also to the ability of the husband to pay. In re Marriage of C______S______ B______, 546 S.W.2d 186 (Mo.App.1976); Ortmann v. Ortmann, 547 S.W.2d 226 (Mo.App.1977). After giving recognition to that undoubted rule, the parties part company. The husband emphasizes the fact that his sole income consists of $390 per month and he insists that it was an abuse of discretion to order him to pay from that small sum $300 per month to the children plus an additional $1,500 in legal costs for the wife. In his view, the appropriate award should be $100 per month, which would equal the amount of the governmental allotment which he receives by reason of having those two dependents. On the other hand, the wife points out that the husband admitted in his testimony that he is able bodied and she contends that it is his obligation to seek at least part time work to supplement the government student allowance. She points particularly to the following testimony by the husband as showing his attitude:
"Q. But in any event you are employable, you could be employable making a substantial wage, isn't that true?
A. Well, I'll have to go back. I'm a full time student and I fully intend to finish my schooling. When I get out I intend to give her more child support and take care of the kids the best I can, but right now finishing school is the main thing.
Q. In the meantime, so far as you're concerned, she's just going to have to do with that one hundred a month, is that what you are saying?
A. No, I didn't say that. You said that."
The husband's desire to obtain a college degree can only be commended. Against that, however, must be set his higher duty to contribute to the support of the two children whom he brought into the world. There are ways by which he can do both. For example, he can take on a part time job. If necessary, he can lighten his scholastic load and stretch out his education over a longer period of time. Another possible recourse would be to apply for a student or other type of loan. How the husband wants to proceed with respect to the avenues open to him is a matter for him to choose. But, he cannot...
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Davis v. Schmidt
..."the opportunity to see the briefs filed in this court and know what has transpired with respect to oral argument," Boyer v. Boyer, 567 S.W.2d 749, 751 (Mo.App. W.D.1978). Under the circumstances presented in this case, we hold that the trial court erred and manifestly abused its discretion......
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...Nunn v. Nunn, 644 S.W.2d 370, 372 (Mo.App.1982). He may not escape his responsibility by voluntarily declining to work, Boyer v. Boyer, 567 S.W.2d 749, 751 (Mo.App.1978), by deliberately limiting his work to reduce his income, Butler v. Butler, 562 S.W.2d 685, 687 (Mo.App.1977), Goodwin v. ......
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