Courtney v. Courtney

• Decision Date: 17 March 2015
• Docket Number: No. ED 100834,ED 100834
• Citation: 458 S.W.3d 462
• Parties: Scott E. Courtney, Appellant, v. Terresa Kay Courtney, Respondent/Cross–Appellant.
• Court: Missouri Court of Appeals

458 S.W.3d 462

Scott E. Courtney, Appellant

v.Terresa Kay Courtney, Respondent/Cross–Appellant.

No. ED 100834

Missouri Court of Appeals, Eastern District, DIVISION III .

FILED: March 17, 2015

Matthew W. Huckeby, Missouri Public Defender, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101, for Appellant.

Shaun J. Mackelprang, Assistant Attorney General, PO Box 899, Jefferson City, Missouri 65102, for Respondent.

Kurt S. Odenwald, Presiding Judge

Introduction

Appellant Scott Courtney (“Father”) appeals from the trial court's First Amended Order and Judgment entered on August 7, 2013, (“Amended Judgment”) modifying the parties' 2010 divorce decree. Respondent Terresa Courtney (“Mother”) cross-appeals from the same Amended Judgment. Between the two parties, ten points on appeal and cross-appeal are advanced challenging every aspect of the Amended Judgment.

Father's first three points address the trial court's custody modification and adopted Parenting Plan. Because the Amended Judgment did not include a specific written parenting plan as required by Section 452.375.9,¹ we reverse the trial court's judgment with respect to the Parenting Plan. Father argues that the trial court's judgment modifying custody should be reversed because the trial court based its judgment on stale evidence adduced seventeen months prior to the Amended Judgment. We are persuaded that the trial court's reliance on outdated evidence limited its ability to properly determine the best interests of the children based upon the current situations of the parties. Accordingly, we reverse the trial court's judgment modifying custody of the minor children.

Father also challenges the trial court's judgment modifying his maintenance and child support obligations. Mother similarly challenges the trial court's judgment modifying maintenance and child support. Because the trial court based its judgment modifying the parties' maintenance and child support obligations on impermissibly stale evidence, included improper child-related expenses in its maintenance calculation, and failed to attach or use an updated Form 14 with proper figures in calculating child support, we reverse the trial court's judgment modifying maintenance and child support.

Father further contests the trial court's determination that he failed to timely object to Mother's proposed relocation to Michigan. Although the trial court erred in finding Father's objection untimely and in delaying consideration of his objection, Father was given a full opportunity to litigate the issue on the merits. Because the trial court's decision to grant Mother's relocation was unaffected by its errors and supported by substantial evidence, we affirm the trial court's judgment granting Mother's motion to relocate and denying Father's Objection to Relocate.

Father additionally challenges the trial court's award of attorneys' fees to Mother as part of its judgment finding Father in contempt. The trial court has inherent authority to award attorneys' fees to Mother as part of the contempt proceedings. Because the trial court did not abuse its discretion in exercising that authority, we affirm the trial court's award of attorneys' fees.

Finally, Father argues that the trial court erred in failing to make certain findings of fact in the Amended Judgment which Father requested prior to trial. Because the absence of the requested findings in the Amended Judgment does not materially interfere with our appellate review, we deny this portion of Father's appeal.

Mother contests the portion of the Amended Judgment finding Father in contempt. Because the record reflects that the order of contempt has not been enforced against Father, the contempt order is not a final judgment for purposes of appeal. Accordingly, we dismiss this portion of Mother's appeal.

Factual and Procedural History

I. The 2010 divorce decree

Mother and Father dissolved their marriage on January 11, 2010. The original divorce decree was later amended and became final on February 16, 2010. Pursuant to the 2010 divorce decree, Mother and Father were granted joint legal and physical custody of their minor children, with Mother designated as the residential parent. Mother was awarded $6,000 per month in spousal maintenance and $1,465 per month in child support. The 2010 judgment found that Father's gross monthly income at the time of the divorce was $21,550 per month, imputed gross income to Mother of $1,500 per month, and found that Mother's reasonable monthly expenses, not including expenses for the children, were $7,310 per month.

The 2010 divorce decree granted Mother and Father joint legal and physical custody of their children pursuant to the parenting plan they had adopted. The 2010 decree also found that Father had an alcohol problem which “impacts on the care and welfare of the parties' minor children.” Pursuant to the parenting plan, Father was granted custody of the children every other weekend during daytime hours, in addition to certain weekdays. Father was also granted custody time during holidays and extended time during the summer. The parenting plan also required Father to participate in an alcohol evaluation with Dr. Ralph Orlovick (“Dr. Orlovick”).

II. Litigation following 2010 divorce decree

Father appealed the 2010 judgment, but voluntarily dismissed his appeal in August of 2010. On September 22, 2010, Father filed a motion to modify the judgment in which he sought sole physical custody of the children and child support from Mother. Father stated in his motion to modify that he had lost his job. On that same date, Father also filed an objection to Mother's proposed relocation of the children's residence to Michigan on the grounds that the relocation would interfere with his ability to spend meaningful time with the children. Mother had mailed Father a relocation notice dated August 24, 2010, informing Father that for financial reasons, Mother needed to relocate to Michigan to reside with her father. Mother filed an answer and counter-affidavit in support of her proposed relocation, alleging that the children's best interests would be served by residing with her in Michigan. Mother simultaneously filed a cross-motion seeking to hold Father in contempt for failing to pay child support and maintenance, as well as for failing to comply with property division obligations pursuant to the 2010 judgment. Mother also filed her own motion to modify. In January of 2011, the trial court appointed William Grant (“Grant”) guardian ad litem for the children. In February of 2011, Father filed an amended motion to modify. Shortly before trial, Mother filed an amended motion for contempt, and Father filed a request for findings of fact and conclusions of law.

The trial court heard evidence on the parties' pending motions on February 28, 2012, and March 12, 2012. Father and Mother testified regarding Mother's relocation to Michigan and their experiences regarding custody and visitation of the children. Mother called Dr. Orlovick to testify about the alcohol evaluation he performed of Father in 2011 pursuant to the terms of the 2010 divorce decree. Dr. Orlovick testified that based on his 2011 evaluation, Father was exhibiting signs of alcohol abuse. Father testified that he lost his job in August of 2010 and remained unemployed until August of 2011. Father testified that his salary at the time of trial was $150,000 per year. Mother testified that she secured employment in Michigan in 2011, and was earning $60,000 per year. Mother further testified that her monthly expenses, for purposes of maintenance, totaled $8,974.05 as reflected on her Exhibit QQ filed with the trial court.

III. The Amended Judgment

The trial court took the matter under submission on March 12, 2012. In May of 2012, Mother filed a motion to reopen the case to allow for the admission of additional evidence. Specifically, Mother alleged that a judgment and garnishment had been filed against her on a Bank of America credit card debt that Father had failed to pay. The trial court appeared to have granted leave to reopen the matter, but the record does not show any evidence presented on this claim, and the trial court later indicated that the motion had been denied. On July 11, 2012, Mother again filed a motion to reopen the record, alleging that she was incurring additional expenses after moving to Michigan with the children. Mother filed a revised statement of income and expenses reflecting current monthly expenses of $11,706.64, and alleging that her wages were being garnished by Bank of America due to the credit card debt incurred by Father. The trial court denied Mother's motion. On October 4, 2012, Mother filed a third motion to reopen the record, alleging that Father had changed jobs and that Mother suspected his income had substantially increased. The trial court again denied Mother's motion.

The trial court issued its Order and Judgment on the various motions filed by the parties on July 29, 2013. The trial court then issued the Amended Judgment, sua sponte, on August 7, 2013.

The Amended Judgment modified Father and Mother's custody of the children pursuant to a new parenting plan, which the Amended Judgment stated was attached as an exhibit. Although a parenting plan was attached as an exhibit to the original July 29, 2013 judgment, no parenting plan was attached as an exhibit to the Amended Judgment. In the Amended Judgment, the trial court stated that it considered the “best interests of the [children] for a frequent, continuing and meaningful relationship with both parents” and concluded that Mother “has been the parent offering the most stability to the minor children.” In support of its custody ruling, the trial court found that Father had abused alcohol in the past and did not comply with the treatment requirements of the 2010 judgment until immediately prior to trial. The trial court also cited the testimony of Dr. Orlovick, including Dr. Orlovick's conclusion that Father's...