C. Shepard v. J. Shepard

• Decision Date: 20 June 2001
• Parties: (Mo.App. S.D. 2001) Cynthia R. Shepard, Appellant, v. Johnny W. Shepard, Respondent. 23895 0
• Court: Missouri Court of Appeals

47 S.W.3d 412 (Mo.App. S.D. 2001)

Cynthia R. Shepard, Appellant, v. Johnny W. Shepard, Respondent.

23895

Missouri Court of Appeals Southern District

06/20/2001

Appeal From: Circuit Court of Jasper County, Hon. Joseph Schoeberl

Counsel for Appellant: L. Thomas Elliston

Counsel for Respondent: Sarah Luce Reeder

Opinion Summary: None

Rahmeyer, J., concurs in principal opinion. Prewitt, J., concurs in part and dissents in part in separate opinion filed.

Robert S. Barney, Chief Judge

Cynthia R. Shepard ("Wife") appeals from a Judgment Entry of Dissolution of Marriage ("judgment") which dissolved her marriage with Johnny Shepard ("Husband"), positing trial court error in failing to include the cost of private schooling in determining the amount of child support Husband was to contribute, and trial court error in unjustly dividing the marital property in favor of Husband. We affirm.

Husband and Wife married on July 28, 1984. One child was born of the marriage, Madeline Nichole Shepard ("Maddy"), born September 26, 1988. When Maddy started school, Husband and Wife enrolled her in a private school, the Thomas Jefferson Independent Day School, ("private school"), with tuition costs in excess of $6,000.00 per year at the time of the dissolution of marriage proceeding in March of 2000.

In 1993, Husband and Wife opened Oak Tree Fabric, a fabric and upholstery store, ("the fabric store") in Joplin, Missouri. Shortly thereafter, Wife began working for her parents at a furniture store they owned in Springfield, while Husband assumed duties as the primary operator of the parties' fabric store. In 1998, Wife's parents opened up a business called The Market Place Interiors across the street from the fabric store, and Wife became the manager of this business. In 1999, business at the parties' fabric store declined 20-25% and Husband testified that he attributed this decline to the loss of a major account as well as competition from the store opened by Wife's parents.

As more fully discussed below, in dividing the property, the trial court awarded Wife the marital home, much of the household goods and furniture, her IRA account, a portion of a stock market account, and other miscellaneous items. Husband was awarded the fabric store, his IRA account, other miscellaneous items, and the remaining portion of the stock market account.

This Court's review of the trial court's judgment is governed by Rule 84.13(d), and will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously applies the law.¹ In re Marriage of Thompson, 24 S.W.3d 751, 753-54 (Mo.App. 2000); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In reviewing the appeal of a court-tried dissolution action, this Court views the evidence in a light most favorable to the judgment. In re Marriage of Pahlow, 39 S.W.3d 87, 90 (Mo.App. 2001). The challenging party bears the burden of demonstrating error by the trial court. Id.; Taylor v. Taylor, 12 S.W.3d 340, 344 (Mo.App. 2000).

In her first point, Wife maintains that the trial court erred in the amount of child support it ordered Husband to pay because it failed to include the cost of private schooling for Maddy.

At trial, Wife testified that Maddy had always attended a private school since the commencement of her education and that Wife wished Maddy to continue her attendance at the private school because, "[h]er friends are there. She's been there for seven years. She's a smart child. She's excelling. She's doing very well. And that's the environment that she most feels comfortable with. That's like home to her." She furthered testified that the separation and divorce had been traumatic for Maddy, that changing schools would also be a traumatic experience, and that she would do whatever she could to keep Maddy in the private school. However, in responding to questions from Husband's attorney, Wife acknowledged that there was nothing "wrong" with public schools. Husband testified that he did not wish to pay for the private school Maddy attended; that he and Wife had discussed taking Maddy out of the private school in 1998; and that during their discussion Wife did not have a problem with that course of action. He further testified that he did not feel it was in Maddy's best interest to continue at private school because "she needs to have more rounded education as far [sic] interacting with different people, and this public school system is fine."

In its final judgment, the trial court made a specific reference to the private schooling of Maddy, noting that she "does not have any special educational needs that cannot be met in a public school." Consequently, the Court did not increase the basic amount of child support for private school expenses. The trial court has discretion whether to include a portion of private school tuition in child support paid by a noncustodial parent. Drury v. Racer, 17 S.W.3d 608, 610 (Mo.App. 2000). Deference is given to the trial court's judgment and we will reverse only if the evidence is palpably insufficient to support it. Id.; Douglas-Hill v. Hill, 1 S.W.3d 613, 620 (Mo.App. 1999). The fact that a parent does not want to pay for private school is not, by itself, enough to deny child support for educational expenses, however, it is a relevant factor. Drury, 17 S.W.3d at 610. "The test for determining when a court should order private schooling over the wishes of one parent is when such schooling will meet the particular educational needs of the child." Id.

In support of her argument, Wife cites to In re Marriage of Manning, 871 S.W.2d 108, (Mo.App. 1994), noting that this Court considered a case similar to the instant case and reversed the decision of the trial court for failing to include private schooling in its child support order. In that case, this Court held that dissolution of a marriage is difficult on a child and keeping children in a private school can be essential to the welfare of the child. Id. at 111. However, the cost of education is a proper factor to consider, and "including costs for private education is conditional upon such education being within the financial means of the person or persons providing support." Id.; see Markowski v. Markowski, 793 S.W.2d 908, 910 (Mo.App. 1990). In Manning, the tuition for private schooling was $2100.00 per year, while the income for the noncustodial parent preceding the divorce action ranged from $4,300.00 to $5,500.00 per month. Manning, 871 S.W.2d at 110-11. These numbers are distinguishable from the present case as tuition for Maddy's private school was in excess of $6,000.00 per year, while the trial court determined that Husband's gross income was $2,684.00 per month. The trial court made mention of this disparity at the conclusion of trial, noting on the record, "that it's a true sacrifice for the parties to have been sending the child to Thomas Jefferson in the past. And if the child continues to go to Thomas Jefferson, it's going to be an extraordinary expense for a couple with this standard of living."

As for the educational needs of the child, as previously recited, Husband testified that he felt it was in Maddy's best interest to attend a public school in order to obtain a more "rounded education" and interact with other people. Wife's objection to having Maddy leave the private school was related to Wife's opinion as to the traumatic effect on Maddy. Wife had no reasonable objection to the public school. Based on the foregoing and our review of the record, we are constrained to conclude that Wife has failed to prove that private schooling met any particular educational needs of her child. Drury, 17 S.W.3d at 611. Therefore, we cannot say the trial court committed error in failing to include the cost of the private school in the child support Husband was ordered to pay. Point denied.

In her second point, Wife alleges trial court error in dividing the marital property claiming that there were no reasons for the division of property to be unequal and the trial court made mathematical and procedural errors in dividing the property in favor of Husband. The property of Husband and Wife consisted of the marital home, the parties' fabric store, household items, personal effects, and a stock market account Husband had opened in 1994 which had a value of over $109,873.00. In its detailed, final judgment, the trial court first set out its division of marital property by dividing all of the property except the stock market account. After subtracting the debt associated with the marital property, Wife was left with property valued at $71,297.00 and Husband with property valued at $118,524.00. The trial court then ordered that $23,613.50 (half of the difference of the property awarded Husband and Wife) plus an additional $3,180.47 be deducted from the stock market account and awarded to Wife. The remaining money in the stock market account was...