Echele v. Echele

• Decision Date: 26 December 1989
• Docket Number: Nos. 56067,56166,s. 56067
• Parties: Paul F. ECHELE, Appellant/Cross-Respondent, v. Sheila K. ECHELE, Respondent/Cross-Appellant.
• Court: Missouri Court of Appeals

Page 430

782 S.W.2d 430

Paul F. ECHELE, Appellant/Cross-Respondent, v. Sheila K. ECHELE, Respondent/Cross-Appellant.

Nos. 56067, 56166.

Missouri Court of Appeals,

Eastern District,

Division Five.

Dec. 26, 1989.

Rehearing Denied Jan. 24, 1990.

Claude C. Knight, Deborah Jean Tomich, Knight & Schoeneberg, St. Charles, for respondent/cross-appellant.

Nancy L. Schneider, Hazlewood, Barklage & Barklage, St. Charles, for appellant/cross-respondent.

JOSEPH J. SIMEONE, Senior Judge.

I.

These are consolidated appeals by Paul F. Echele (husband), and Sheila K. Echele (wife), from an order of the circuit court of St. Charles County entered on December 30, 1988 after both parties filed motions to modify the original dissolution decree. The order (1) increased the child support payments made by Paul F. Echele, (2) required him to pay one-half of the cost of post-secondary education of the parties' two sons, (3) granted to Paul the right to claim one of the sons as a dependent for income tax purposes, and (4) provided that each party was to be responsible for attorney fees.

We affirm in part and reverse and remand in part.

II.

On November 12, 1985, a dissolution decree was entered dissolving the marriage of the parties. There were two sons born of the marriage--Todd Christopher Echele, born June 11, 1972, and Ryan Gregory Echele, born October 21, 1974. The mother, Sheila, was granted primary custody of the sons, and the father was granted certain rights of visitation and temporary custody. In the original decree, the father was ordered to pay one-half of the costs of tuition for the children to attend private school. The decree also ordered Paul to pay $51.50 per week per child as and for child support.

On March 15, 1988, Paul filed a motion to modify the original decree praying that (1) he be given primary custody of the children or in the alternative to grant him joint legal custody, (2) his obligation for child support be terminated, and (3) reasonable attorneys' fees be awarded.

On April 20, 1988, Sheila answered the motion to modify and filed a cross-motion stating that there have been changed circumstances since the original decree and prayed for (1) increased child support retroactive to the date of filing, (2) an order requiring Paul to be responsible for the payment of the reasonable expenses of a college education for both sons, (3) a modification of visitation and temporary custody, (4) an order requiring Paul to maintain a life insurance policy for the children, and (5) an order requiring Paul to pay her attorneys' fees.

A hearing was held on November 18, 1988 at which the two sons, and Paul and Sheila testified. At the hearing, Paul testified that his gross earnings from his employer were approximately $27,800 per year and that at the time of the dissolution, his earnings approximated $28,000 per year. Paul testified that since the original decree, he had remarried and that his present wife earned $424.00 per week. The record shows that Sheila earns $385.00 per week from her employer, and an additional amount for part-time work. The record shows she earns approximately $18,400 per year. She also earns an additional $50.00 per week at a part-time position. Sheila has, according to her statement of income and expenses, expenses of $2602.00 per month, which includes $810 for the children. Paul's expenses are shown to be approximately $2295 per month.

At the hearing, Sheila testified that since the original decree the "basic expenses" for the children--clothing, food, education and activities--had increased because the sons had changed from "being grade school children to having one high school child." She testified that the cost of food had increased--"they eat as much as an adult;" and that since the sons have grown, they require adult size clothing. Since the elder son has reached sixteen years of age, he drives an automobile which necessitates insurance. Paul also recognized that the sons wear "adult size clothing" and on occasion "eat a lot." Sheila testified that she lacks the necessary financial resources to pay the cost of a college education. In Paul's testimony, he stated that he had talked to Todd about attending college and that he was desirous of Todd continuing his education after high school either at a vocational school where Todd had an interest, or a college. He testified that he would be willing to give financial help for college education and has "no problem" with assisting Todd. He also testified that he "hoped" the boys would go to college. Sheila testified that she did not have the ability to pay her own attorneys' fees amounting to some $1,300.00.

The record indicates, from the testimony of the children that their parents do not get along very well, and that it would be difficult for them to make joint decisions. At the hearing, Paul requested a tax exemption for one of the children in the event the court ordered an increase in the child support payments.

On December 30, 1988, the court entered its order of modification. The order was filed on January 5, 1989. The court found that since the entry of the original decree of dissolution there have been substantial and continuing changed circumstances. The court found that the costs of maintaining and educating the two children have increased substantially; that the sons have grown and have needs "well in excess of their needs at the time of the entry of the Decree" and the costs of supplying those needs have risen, since the sons are older, and have indicated a desire and ability to go on to post-secondary education. The court therefore ordered that (1) Paul pay $71.50 per week, per child for increased child support and maintenance retroactive to August 1, 1988, (2) commencing with the 1989 tax year, that Paul have the right to claim Todd as a dependent for income tax purposes, (3) Paul pay one-half of the cost of "vocational/technical school or one-half the cost of post-secondary education at a state supported college or university with respect to each of the parties' minor children. Said cost shall include the cost of tuition, books, and room and board." The order continued:

In the event either or both parties' minor children choose to attend a private college or university, then [Paul] shall be responsible for one-third the cost of tuition, books and dormitory fees (room and board) of said college or university. [Paul's] payments ... shall be made ... to the school, college or university where the child or children are attending....

The order also required each party to pay the respective attorneys' fees.

III.

On appeal, appellant-husband contends that the trial court erred (1) in ordering him to pay one-half or one-third of the cost of post-secondary education because the order is not based on substantial evidence and is an erroneous application of the law in that the amounts (a) are dependent upon some future contingency and are indefinite and uncertain and incapable of being identified with any certainty, and (b) are void and unenforceable because the amounts require a subsequent hearing to determine the amount actually owed; (2) in ordering him to pay a portion of the college expenses without abating his obligation to pay the increased amount of child support, and (3) in ordering him to pay an increased amount of child support because the increase is not based upon substantial evidence, or is against the weight of the evidence or is an erroneous application of the law.

Cross-appellant, wife, contends on this appeal that the trial court erred in granting Paul the right to claim Todd as a dependent for income tax purposes and in failing to award her her reasonable attorney fees.

IV.

We initially note our standard of review: (1) the order of the trial court will be sustained unless the record reveals no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Colabianchi v. Colabianchi, 646 S.W.2d 61, 62 (Mo. banc 1983); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); (2) the trial court has broad discretion in determining the amount of child support; and (3) the award of attorneys' fees and costs is within the sound discretion of a trial court. Costley v. Costley, 717 S.W.2d 540, 545 (Mo.App.1986); Newport v. Newport, 759 S.W.2d 630, 632 (Mo.App.1988).

As to appellant-husband's first point that the court erred in ordering him to pay one-half or one-third of the cost of post-secondary education including tuition, books and dormitory fees (room and board), he contends that the order is dependent upon some future contingency and the order is indefinite and uncertain and cannot be made definite or certain from the record, hence the order is unenforceable and void. He relies upon a number of decisions.

To resolve this issue, we must analyze the complex law in this area.

In Newport v. Newport, supra, the court stated:

As a general rule, a judgment or decree for child support must be sufficiently certain in its terms to be capable of enforcement by execution in the manner provided by law, and the decree must be in such form that the clerk may issue an execution upon which an officer is able to execute without requiring external proof at another hearing.

Newport v. Newport, 759 S.W.2d at 637.

As a general rule, therefore, a judgment must be definite and certain as to the amount for which it is rendered. Loomstein v. Mercantile Trust National Ass'n, 507 S.W.2d 669, 670 (Mo.App.1974). The order, it has been said, must be sufficiently certain without requiring external proof of another hearing in order to be enforceable. Tepper v. Tepper, 763 S.W.2d 726, 727 (Mo.App.1989). In Pettigrew v. Pettigrew, 619 S.W.2d 364, 365 (Mo.App.1981), the court held that a decree for child support must be sufficiently certain in its terms to be capable of enforcement by execution in the manner provided by law, and if a judgment or decree does not...