Denney v. Winton

• Decision Date: 10 February 2006
• Docket Number: No. 26463.,26463.
• Citation: 184 S.W.3d 110
• Court: Missouri Court of Appeals
• Parties: Randall Gene DENNEY, Appellant, v. Terri Anne (Denney) WINTON, Respondent.

184 S.W.3d 110

Randall Gene DENNEY, Appellant, v. Terri Anne (Denney) WINTON, Respondent.

No. 26463.

Missouri Court of Appeals, Southern District, Division One.

February 10, 2006.

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Richard A. Ong, Melton & Herrin, P.C., Cassville, MO, for Appellant.

No brief filed by Respondent.

PAUL McGHEE, Senior Judge.

Randall Gene Denney ("Father") appeals from a judgment increasing and extending his child support obligation, ordering him to pay Terri Anne (Denney) Winton ("Mother") one-half of health-related expenses for one child, and awarding her attorney fees. We affirm in part and reverse and remand in part.

Father and Mother have two children from their marriage to each other. Adrienne was born October 28, 1982, and Abbey was born May 24, 1985. The trial court dissolved their marriage on July 20, 1989, approved their separation agreement, and provided for the custody and support of the children. The court modified the dissolution judgment in 1993, by reducing Father's child support obligation to $331.00 per month.

Mother filed a motion to modify on April 28, 2000, that was tried on January 29, 2004. She requested in her motion that the child support amount be increased from the date of filing, that Father be required to pay one-half of the extraordinary medical expenses for the children, and that he be required to pay her attorney fees. Father did not ask for any affirmative relief in his answer, other than for his attorney fees.

The trial court found that application of the guidelines and criteria of Rule 88.01 would result in a change of more than twenty percent of the existing child support amount, thus making a prima facie showing of a change of circumstances so substantial and continuing as to make the existing terms of child support unreasonable. The court also found that "Adrienne Quinn Denney is disabled (emphasis added) due to injuries sustained in an automobile accident and child support for her shall continue beyond the age of majority." The judgment, dated February 24, 2004, ordered Father to pay Mother "beginning April 28, 2000, the total sum of $635.00 per month for two children until emancipation." It further ordered Father to pay Mother $10,010.92 for one-half of the health-related expenses incurred for Adrienne after April 20, 2000, and $2,000.00 for her attorney fees.¹

Father relies on five points in his appeal, while Mother has not submitted a brief. The standard of review governing modification of child support provisions is the same as in any other court-tried case. The judgment of the trial court will be affirmed on appeal unless there is no substantial evidence to support it, or unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Windsor v. Windsor, 166 S.W.3d 623, 628 (Mo.App. W.D.2005), citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976); Winter v. Winter, 167 S.W.3d 239, 242 (Mo.App. S.D.2005); Hoberock v. Hoberock, 164 S.W.3d 26, 29-30 (Mo.App. E.D. 2005). "A child support provision will be upheld unless the trial court abused its discretion or erroneously applied the law." In re Marriage of Ledford, 28 S.W.3d 465, 467 (Mo.App. S.D.2000), quoting In re Marriage of Gerhard, 985 S.W.2d 927, 930 (Mo.App. S.D.1999). An abuse of discretion will be found only where the trial court's ruling is clearly against the logic of the circumstances or is arbitrary or unreasonable. Id.

A trial court is free to believe or disbelieve all, part or none of the testimony of any witness. Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 394 (Mo.banc 2001). We give deference to the trial court's determination of the credibility of the witnesses; and the evidence, with all of the inferences flowing therefrom, is viewed in the light most favorable to the judgment. McLaurin v. McLaurin, 171 S.W.3d 150, 151-52 (Mo.App. E.D.2005); Johnston v. Dunham, 172 S.W.3d 442, 447 (Mo.App. W.D. 2005).

As his first point, Father asserts that the trial court erred in ordering him to pay child support for Adrienne past the age of majority. "Generally, a child support obligation terminates when the child reaches the age of eighteen." Windsor, 166 S.W.3d at 630. At the time of trial, Adrienne was twenty-one years old and a student at Drury University in Springfield. She suffered extremely severe injuries in an automobile accident on September 8, 1997, when she was fourteen years old. She was in a coma for eight days, and she endured hospitalizations, surgeries, counseling, therapy, and other treatments. She was taking medications at the time of the trial and was to undergo another surgery after the trial.

Notwithstanding the severity of her injuries, Adrienne was able to return to high school and participate in speech and debate, and in academic and other clubs, including being president of the National Honor Society at her school. She graduated from high school on May 18, 2001, with a class ranking of sixth out of 118 students. That summer, she worked at a convenience store in Monett before moving to Springfield to attend Drury University in the fall of 2001. While attending Drury, she worked part-time as a sales clerk at Dillard's, and at the front desk and verification department of Drury's financial aid office. According to Adrienne, she left the convenience store job to attend Drury, and she quit her other employment because of her schoolwork.

At trial time, she was living with three other students in an apartment furnished by Drury. The four women shared the chores, such as vacuuming, washing dishes, laundry, cooking and grocery shopping. She often walked three blocks to classes because it was good therapy, but she had a driver's license and drove Mother's Jeep more often in the winter because she cannot walk as well in the winter.

Section 452.340.3² provides that unless the circumstances of the child manifestly dictate otherwise and the court specifically so provides, the support obligation of the parent terminates when the child reaches age eighteen, unless the provisions of subsection 4 or 5 apply.

Our Supreme Court held in Fower v. Fower Estate, 448 S.W.2d 585, 586 (Mo. 1970), that a father had a duty to support his adult mentally-incapacitated child; although, at that time, the duty of support was to the child and not the custodial parent. See also Racherbaumer v. Racherbaumer, 844 S.W.2d 502, 503-04 (Mo. App. E.D.1992). The duty to support a child continues after the child attains adulthood "if the child is unmarried, unemancipated, insolvent and, by reason of physical or mental conditions, incapable of supporting himself." Cole v. Estate of Armstrong, 707 S.W.2d 459, 462 (Mo.App. S.D.1986). The power of a divorce court at that time to provide for support ended when the child attained majority, at least when the child was not a party. Id.

In 1988, subsections 3 to 6 were added to § 452.340; of which subsection 4 authorizes the dissolution court to extend the parental support obligation past the child's eighteenth birthday. Racherbaumer, 844 S.W.2d at 504; Heider v. Heider, 822 S.W.2d 446, 447 (Mo.App. E.D.1991). Section 452.340.4 provides: "If the child is physically or mentally incapacitated from supporting himself and insolvent and unmarried,³ the court may extend the parental support obligation past the child's eighteenth birthday."

In Speight v. Speight, 933 S.W.2d 879, 882 (Mo.App. W.D.1996), the court stated:

Before the exception found in § 452.340.4 will apply, the court must find that the child is: 1) physically or mentally incapacitated from supporting himself; 2) insolvent; and 3) unmarried. The evidence needed to show these elements is substantial. State ex rel. Albert v. Sauer, 869 S.W.2d 853, 855 (Mo. App.1994). As to "mental incapacity," courts have been fairly strict in defining its parameters. "A parent's duty to continue supporting a physically or mentally incapacitated child arises from the child's helpless condition . . . [t]he child's mental incapacity must impair the child's ability to support himself." Id. Evidence introduced to establish incapacity and need might include medical testimony, letters of guardianship, living expenses and ability to meet obligations. Id.

In In re Marriage of D.R.S. and P.W.S., 817 S.W.2d 615, 618 (Mo.App. S.D.1991), Letters of Guardianship for Incapacitated Person had been issued by the probate division of the circuit court for an adult child, and, in affirming the order of the trial court extending the support obligation for the adult child, this Court quoted the definition of "incapacitated person" from § 475.010(8) of the Probate Code, and found the letters of guardianship to be sufficient evidence that the child was incapacitated.

Although there was no evidence that letters of guardianship had been issued for Adrienne as an incapacitated person, nor was there any medical testimony, there is no checklist of evidence which must be introduced in order to establish incapacity. Clark v. Clark, 20 S.W.3d 562, 566 (Mo.App. W.D. 2000).

The principal evidence on the issue of incapacity was the lay testimony of Mother as to Adrienne's injuries and her long and difficult progress toward recovery. The evidence reflects Adrienne's admirable determination and her remarkable achievements despite her injuries; but it also reflects that, despite the residual effect of her injuries, she is not physically or mentally incapacitated from supporting herself within the meaning of § 452.340.4.

"Insolvency" in the context of § 452.340.4 is defined as "the inability to pay debts as they become due in the ordinary course of business." Racherbaumer, 844 S.W.2d at 505; D.R.S., 817 S.W.2d at 618.

Adrienne had accumulated from her numerous scholarships and a Pell grant a credit of $1,444.00 at Drury, and she testified that she was receiving social security disability benefits of an undisclosed amount, which has "helped a lot." Mother was...