Drury v. Racer

• Decision Date: 16 May 2000
• Citation: 17 S.W.3d 608
• Parties: (Mo.App. E.D. 2000) . Jami Marie (Racer) Drury, Petitioner/Respondent, v. David Lee Racer, Respondent/Appellant. Case Number: ED76828 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

17 S.W.3d 608 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Jami Marie (Racer) Drury, Petitioner/Respondent, v. David Lee Racer, Respondent/Appellant.

Case Number: ED76828

Missouri Court of Appeals Eastern District

Handdown Date: 05/16/2000

Appeal From: Circuit Court of Ste. Genevieve County, Hon. Robert Stillwell

Counsel for Appellant: Carl D. Kinsky

Counsel for Respondent: Eric C. Harris

Opinion Summary: The father appeals the trial court's judgment increasing his child support obligation to include the costs of private school and requiring him to retroactively pay a portion of his child's private school expenses. He argues the mother failed to prove that their child had any particular educational needs that could not be met at a public school.

REVERSED AND REMANDED.

Southern Division holds: (1) The mother failed to prove that private schooling met any particular educational needs of the child. As a result, the trial court erred in increasing father's child support obligation to include private school expenses, and also erred in ordering him to retroactively pay a portion of the child's private school tuition. (2) The mother failed to show she is entitled to any increase of child support. The trial court's calculation of the father's presumed child support amount without including private school expenses resulted in an amount that was actually less than father's current support obligation.

Opinion Author: Mary Rhodes Russell, C.J.

Opinion Vote: REVERSED AND REMANDED. Teitelman and Mooney, JJ., concur.

Opinion:

David Racer ("father") appeals the trial court's judgment increasing his child support obligation to include the costs of private school and requiring him to retroactively pay a portion of his child's private school expenses. We find the trial court erred in increasing father's child support obligation in that mother failed to prove that private schooling met any particular educational needs of the child. Accordingly, we reverse and remand.

Father and Jami Racer Drury ("mother") divorced in December 1992. Mother was awarded primary physical custody of their three-year old child, while father was granted temporary custody and visitation rights. Father was ordered to pay $76 per week as child support. The divorce decree, which incorporated the parties' separation agreement, stated, "[Mother] agrees that she will confer with [father] on major issues regarding the health, education and welfare of the child." The decree further provided, "The parties agree to split the cost/expenses of primary and secondary education for the minor child . . .."

Mother, who is Roman Catholic, enrolled the child in a parochial primary school in 1995. Father, who is not Roman Catholic, was not informed of this decision prior to enrollment.

In July 1996 father filed a Motion to Modify and Motion for Contempt. He claimed mother was interfering with the exercise of his visitation rights. He also sought increased visitation.

Mother filed a First Amended Counter-Motion to Modify and Counter-Motion for Contempt on August 12, 1997. She sought, among other forms of relief, to have father's visitation rights restricted and an order holding father in contempt for not paying one-half of the child's primary school expenses.

Father later filed a First Amended Motion to Modify. He requested either an order eliminating the requirement that he pay any portion of the "cost/expenses of primary . . . education" or an order clarifying what those terms meant.

In May 1998 mother filed her Second Amended Counter-Motion to Modify, Motion for Declaratory Judgment, and Motion for Contempt. She requested, among other forms of relief, that father pay one-half the costs of parochial schooling. She also sought, for the first time, an increase in child support.

The trial court dismissed mother's Motion for Declaratory Judgment and Motion for Contempt. The case proceeded on father's First Amended Motion to Modify and mother's Second Amended Counter-Motion to Modify.

In its judgment, the trial court increased father's child support obligation to $390 per month, effective September 1, 1999. This amount was calculated by including the cost of parochial school. The trial court also ordered father to pay $325 per month in child support from August 13, 1997 to September 1, 1999. This amount was calculated without any parochial school expenses. Father was ordered to pay any arrearages during this period at the rate of $60 per month until paid in full.¹ Finally, the trial court ordered father to pay one-half of the parochial school expenses from the fall of 1997 until the Spring of 1999 in the amount of $1,241. This appeal followed.

Our standard of review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We will sustain the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Id. at 32.

In his first point, father argues the trial court erred in increasing his child support obligation to include the costs of parochial school in that his child has no particular educational needs that cannot be met at a public school.

A child's educational need is a relevant factor that the trial court may consider in awarding child support. In re Marriage of Glueck, 913 S.W.2d 951, 955 (Mo. App. 1996). The cost of a private school may be a valid item of support. Id. The decision to increase child support that requires the noncustodial parent to pay a portion of private school tuition rests within the sound discretion of the trial court. Id. We will defer to that court's judgment unless the evidence is palpably insufficient to support it. Id.

The fact that a parent did not agree to send a child to private school or does not want to pay for private school is not by itself enough to deny child support for educational expenses. Shiflett v. Shiflett, 954 S.W.2d 489, 494 (Mo. App. 1997). A parent's lack of willingness to pay is, however, a relevant factor. Id. at 495. 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.

At the hearing, mother testified as to her reasons for enrolling the child in the particular parochial school she chose. The foremost reason was so her child could receive religious instruction in mother's religion which was not shared by father. In addition, mother had attended the same parochial school, and she wanted her child to have the same experience. Mother also mentioned the low student-teacher ratio at the parochial school, its effective discipline, and its success in preparing students for college.

Mother admitted the child is a good student who would do well at any school. She also stated her child has no special educational needs. Finally, mother testified that the local public school is a "fine school," and not in any way educationally inferior to the parochial school. In fact, mother was to be employed in the local public schools as a teacher's aid.

In its findings of fact, the trial court specifically found that the child "does not have any 'special' educational needs that cannot be met in a public school."

Based on this evidence, w...