Capps v. Capps, 50112

• Decision Date: 29 July 1986
• Docket Number: No. 50112,50112
• Parties: Pamela A. CAPPS, Plaintiff-Respondent, v. George K. CAPPS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 547

715 S.W.2d 547

Pamela A. CAPPS, Plaintiff-Respondent, v. George K. CAPPS, Defendant-Appellant.

No. 50112.

Missouri Court of Appeals,

Eastern District,

Division Three.

July 29, 1986.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 10, 1986.

Theodore S. Schechter, Clayton, for plaintiff-respondent.

Paul J. Passanante, St. Louis, for defendant-appellant.

SIMON, Judge.

Husband, George K. Capps, appeals the granting of wife's, Pamela A. Capps, request for a renewal of a Full Order of Protection under the Adult Abuse Act, Chapter 455, RSMo (Cum.Supp.1984) by the Circuit Court of the City of St. Louis. (All further references are to RSMo Cum.Supp. 1984 unless otherwise noted.) We reverse in part and affirm in part.

On September 20, 1983 wife filed for dissolution of her marriage to husband in the Circuit Court of the City of St. Louis. During its pendency, wife filed, on March 21, 1984, a petition for a Full Order of Protection under the Adult Abuse Act in the same circuit. An ex parte Order of Protection was granted on March 21, 1984, and a hearing was set for April 4, 1984 on the Full Order of Protection. On April 4, 1984, the parties entered into a consent decree, (Order # 1), effective until October 4, 1984.

On October 24, 1984 wife filed for a Full Order of Protection, and on that same day an ex parte Order of Protection was issued. A hearing for a Full Order of Protection was heard on November 7, 1984 before Judge Fullwood and a Full Order of Protection (Order # 2) was granted, effective for 180 days until May 7, 1985. Husband appealed this order and it was affirmed. Capps v. Capps, 703 S.W.2d 53 (Mo.App.1985).

On April 26, 1985 wife intended to file and apparently thought she had filed a Motion to Renew Order # 2 for an additional 180 days. Wife incorrectly filed a Motion to Modify. § 455.060. The trial court treated her motion as a motion to renew. Husband has not raised this issue on appeal.

Upon notice of this motion, husband applied for change of judge, Rule 51.05, and alternatively, disqualification of the judge, § 508.090 RSMo 1978. Husband also filed a Motion to Dismiss on the grounds that wife's renewal motion failed to show an immediate and present danger of abuse. All three of husband's motions were overruled.

At the hearing wife testified that while husband was picking up his son on February 15, 1985 for a weekend visit, husband yelled and screamed at her, calling her a bitch. She stated she and her son started crying, and then all of a sudden husband "took off" in his car while wife still had her hands on the frame of the car, resulting in her being thrown against a tree.

Judge Fullwood entered his order (Order # 3) renewing the Full Order of Protection, for 180 days until November 7, 1985. Husband was enjoined from abusing, threatening to abuse, or disturbing wife's peace. Custody of their minor child was granted to wife; husband was granted reasonable visitation rights; husband was ordered to pay $1,350 monthly for child support and $2,150 monthly for maintenance. Husband appeals this order.

The standard of review is set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). The trial court's judgment is to be sustained unless it: (1) is not supported by substantial evidence, (2) is against the weight of the evidence, or (3) the trial court erroneously declares the law or erroneously applies the law. Id. at 32.

In his first point, husband argues the trial court erred in providing wife with relief under the Adult Abuse Act since she had already commenced a dissolution proceeding under Chapter 452 RSMo 1978. Since wife could have obtained all the relief she sought in the dissolution proceeding, the adult abuse proceeding unnecessarily fragmented the litigation, provided wife with the opportunity to shop for a sympathetic forum, and unnecessarily burdens the judicial system.

This point was raised by husband in his initial appeal. Point one of husband's brief submitted in the appeal of Order # 2 has been resubmitted verbatim as point one of this appeal. Since the point has been previously resolved in the prior Capps appeal, we defer to that holding.

The Adult Abuse Act provides a remedy to any adult who has been the subject of abuse by a present or former adult household member, regardless of the fact the aggressor and victim are parties to any other action, and could obtain relief in that action. "All proceedings under Sections 455.010 to 455.085 are independent of any proceedings for dissolution of marriage, legal separation, separate maintenance and other actions between the parties and are in addition to any other available civil or criminal remedies, unless otherwise specifically provided herein." § 455.070.

The remedies under the Adult Abuse Act are statutorily available to a petitioner, regardless of the fact petitioner and respondent are parties to a dissolution proceeding. Cunningham v. Cunningham, 673 S.W.2d 478, 479 n. 1 (Mo.App.1982). Husband's point one is without merit.

We will consider husband's second point in conjunction with his third point. In his second point, husband argues the trial court lacked jurisdiction in issuing Order # 2 because wife did not allege in her second petition any acts by husband, subsequent to the issuance of Order # 1, which placed wife in apprehension of immediate physical injury. Her petition listed the same facts pleaded in her initial petition. In his third point husband contends that Order # 2 lacked sufficient evidentiary support in that, the evidence did not indicate that husband had placed wife in apprehension of immediate physical injury.

Husband's second and third points allege that the trial court's lack of jurisdiction to enter Order # 2 foreclosed the trial court of jurisdiction to renew that order by issuing Order # 3. These points are a collateral attack on Order # 2, which has been affirmed. Capps, 703 S.W.2d 53. This court's judgment in Capps, 703 S.W.2d 53, is binding upon the parties not only to those matters which were litigated and determined, but also those matters which could have been litigated and determined under the principle of res judicata. Jensen v. English, 592 S.W.2d 541 (Mo.App.1979). The Capps court determined the trial court did not error in its application or declaration of the law. That determination is binding upon husband as to all issues he raised in his appeal of Order # 2, as well as to all issues he could have raised. Husband's second and third points are not cognizable by this court.

In his fourth point, husband argues the trial court erroneously presumed that wife was dependent and was in need of maintenance.

An award of maintenance under a Full Order of Protection may be granted if the court finds pursuant to § 455.050.7(1):

(a) The petitioner and respondent are lawfully married;

(b) The party lacks sufficient property to provide for his reasonable needs;

(c) The party is unable to support himself through appropriate employment or is the custodian of a child to whom the respondent has a legal duty to support and whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home (emphasis added); and

(d) There is no existing order for maintenance.

In order to obtain continued maintenance in the same amount and duration as in the original order under a renewal of a Full Order of Protection, a petitioner need not allege that circumstances have changed. However, a petitioner does have the burden of proving that he or she is: (1) qualified to continue being granted maintenance under § 455.050.7(1), (2) under a continuing need for the amount originally awarded pursuant to § 455.050.7(2), and (3) in need of it for a specified duration pursuant to § 455.050.7(2). In short, a renewal petitioner can satisfy her burden by presenting evidence that the circumstances forming the basis for the prior maintenance award continue to exist. A mere request for maintenance is insufficient. Cunningham v. Cunningham, 673 S.W.2d 478, 480 (Mo.App.1984). Also, a mere request for continued maintenance is insufficient.

Here, in order to meet her burden of proof for continued maintenance, wife should submit evidence that the evidentiary basis of the grant, amount and duration of prior maintenance award continues to exist. This can be accomplished by the presentation of evidence that each of the requisite statutory elements of the grant, amount and duration of the prior maintenance award pursuant to § 455.050.7(1) and § 455.050.7(2), continue to exist.

Husband complains that the trial court erred in ruling that wife's ability to earn a living was not relevant "in this particular case" to a grant of a maintenance order. Under § 455.050.7(1) the ability of a wife to support herself through appropriate employment is not solely determinative of the issue of whether the wife is entitled to a grant of maintenance award, if a court finds she is the custodian of a child whom the husband had a legal duty to support and the child's condition or circumstances make it appropriate that the wife not be required to seek employment outside the home.

The transcript on appeal is devoid of an evidentiary basis for the trial court's conclusion that wife's ability to earn a living was irrelevant to the granting of a renewal of a maintenance order under § 455.050.7(1)(c). This conclusion would have been justified had wife presented evidence at the renewal hearing that the couple's five year old child's special conditions or circumstances continue to make it appropriate that wife not be required to seek employment outside the home. No such evidence was presented.

No evidence was presented at the renewal hearing for the court to find that wife continued to lack sufficient property to provide for her reasonable needs, a finding the trial court must make under § 455.050.7(1)(b). Judicial notice of the value of wife's property prior to the...