Foraker v. Foraker, No. WD 61190 (Mo. App. 1/30/2004), No. WD 61190

CourtCourt of Appeal of Missouri (US)
Writing for the CourtPatricia Breckenridge
Citation133 S.W.3d 84
Decision Date30 March 2004
Docket NumberNo. WD 61614,No. WD 61407,No. WD 61190,No. WD 61521
PartiesJAYNE ANN FORAKER, Appellant-Respondent v. CHARLES GRENVELL FORAKER, Respondent-Appellant.

133 S.W.3d 84

JAYNE ANN FORAKER, Appellant-Respondent,


WD 61190, 61407, 61521, 61614


January 30, 2004, Opinion Filed

As Modified March 30, 2004.



John K. Allinder, Independence, Missouri, for appellant-respondent.

John W.M. Dennis, Jr., Independence, Missouri, for respondent-appellant.

Before Hardwick, P.J., Breckenridge and Spinden, JJ. All concur.

Patricia Breckenridge

133 S.W. 3d. 89] Charles Grenvell Foraker (Husband) appeals from the trial court's Amended Judgment and Second Amended Judgment dissolving his marriage to Jayne Ann Foraker (Wife). Wife cross-appeals from both judgments, and the four appeals are consolidated in this proceeding. In Husband's points on appeal, he asserts that the trial court erred in ordering him to pay the presumed child support amount plus college, automobile and medical expenses; entering a retroactive child support award; failing to give him credit against the retroactive award for moneys paid; awarding Wife a cash payment of $ 100,000; and inequitably dividing the marital property. In her two points on appeal, Wife claims that the trial court erred in entering a nunc pro tunc order on May 30, 2002, and in ordering the child support award to be retroactive only to January 1, 2000.

This court finds that there is a valid judgment ordering child support retroactive to January 1, 2000, and there was no error in setting that date. Nor did the trial court err in ordering Husband to pay Wife a cash payment of $ 100,000 or in dividing the marital property. The court did err, however, in ordering Husband to pay the presumed child support amount in addition to two-thirds of the education, automobile, and medical expenses and in failing to specify the amount of credit Husband is to receive against the retroactive child support award. Accordingly, the judgment is affirmed, in part, and reversed, in part, and remanded for the trial court to establish the amount of child support and to specify the amount of credit Husband is to receive against the retroactive child support award.

I. Factual and Procedural Background

When reviewing a judgment in a dissolution of marriage proceeding, an appellate court reviews the evidence in the light most favorable to the trial court's decision. Taylor v. Taylor, 12 S.W.3d 340, 344 (Mo. App. 2000). The evidence, in that light, is that Husband and Wife were married on June 26, 1976, and separated on October 19, 1997. They had two children during the marriage, Jenna, born November 14, 1979, and Kyla, born June 10, 1981. Both children were in college at the time of trial.

During the marriage, Husband held administrative positions in school districts in the metropolitan area, and eventually became superintendent of the Raytown School District. Wife worked as a teacher for the first three years of the marriage but quit her job after the parties' first child was born. When Wife quit her job, 133 S.W. 3d. 90] the parties decided to cash in her teacher's retirement account because she would not need it, considering Husband's retirement account and their investments. They contributed the money from her retirement account to the purchase of the parties' first marital home. After she left her job, Wife worked primarily as a homemaker and caretaker for the children, while Husband took care of the financial needs of the family. Wife returned to work as a teacher and school counselor in 1989.

In 1992, Wife received a phone call from a man who told her that Husband and his wife, Beth Cook, were having an affair. Ms. Cook worked for a time in the business office of the Raytown School District. Husband denied the affair. In 1995, Wife was devastated when she found out that Husband was, in fact, involved in an affair with Ms. Cook. When Wife confronted Husband, he first denied the affair. When Wife did not believe him, he admitted being with Ms. Cook. Husband told Wife it was a one-time incident, that he was very sorry, and it would never happen again. Wife was willing to try to make the marriage work because she believed Husband's claim that it was "a one-time thing," and she thought that through counseling and "working hard together" they could save their marriage. The parties participated in counseling for about eight months. During this counseling, Wife learned that Husband's affair with Ms. Cook had gone on much longer than Husband had originally told her. Husband had been involved with Ms. Cook for approximately three years. As a result of the counseling, Husband got a cell phone so that Wife could reach him at all times and he provided her with his schedules, so that the parties could rebuild trust. Eventually, the parties privately renewed their wedding vows.

In 1997, Wife learned that Husband was having another extramarital affair when he went away unexpectedly for a four-day weekend. He called her the evening he left and told her that he was with his aunt and uncle. During this call, he told her how much he loved her and that he wanted to make their marriage work. The next day, she called the uncle and asked to speak to Husband, but he was not there. When she next saw Husband, she told him that she believed he was having an affair, and he admitted this was true. The parties separated immediately. After the parties separated, Wife hired a private investigator, who discovered the name and address of the woman with whom Husband was having an affair. The woman was Kimbel Westerson, a co-employee with Husband at Hyman Brand Hebrew Academy. At some point, it was also discovered that Husband had resumed his relationship with Ms. Cook.

Wife filed her petition for dissolution of marriage on October 31, 1997. Husband was allowed to file, out of time, a cross-petition for dissolution of marriage. A trial was held on October 16, 2000, and was continued to November 27, 2000. The trial was postponed for a month for additional discovery due to Husband's failure to initially disclose a corporation he had set up in late 1999, the existence of the corporate bank account, the existence of a personal bank account, and his income for 2000.

The trial court entered its first dissolution judgment on November 26, 2001. In its judgment, the trial court awarded Husband and Wife joint physical custody of the parties' children and named Wife the primary physical custodian. As to child support, the court first determined that Wife had an income of $ 4,234 per month, and Husband had an income of $ 10,833 per month. The trial court then ordered Husband to pay child support in the amount of 133 S.W. 3d. 91] $ 1,603 per month for the two children, retroactive to January 1, 2000. Earlier in its findings of facts, the trial court found Husband should pay child support retroactive to December 1, 1997. The trial court also ordered Wife to pay one-third and Husband to pay two-thirds of the children's college expenses. Further, the trial court ordered Husband to pay all of the maintenance, gas, and oil expenses for the children's cars, two-thirds of the children's sorority dues and fees, and two-thirds of the children's car insurance premium costs. Finally, the trial court ordered Wife to maintain health insurance coverage for the children, but ordered Husband to pay two-thirds of any medical costs not covered by the insurance.

With regard to the division of property, the trial court first determined that Wife had nonmarital property worth $ 434,844, and Husband had nonmarital property worth $ 1,085,358. The trial court, then, after considering all relevant factors, awarded Wife marital property worth $ 287,640, and awarded Husband marital property worth $ 171,202. Included in Husband's award was $ 75,000 for "cash diverted and concealed by [Husband]." The trial court also ordered Husband to pay the marital debts worth $ 98,211 and to pay Wife $ 100,000 "to compensate [Wife] for quitting her job, sacrificing her career, cashing in her retirement and promoting [Husband]'s career." Husband was also ordered to pay $ 20,000 of Wife's attorney's fees. The trial court denied Wife's request for maintenance, finding that Wife had "sufficient property, including marital property apportioned to her," and income to provide for her reasonable needs.

Subsequently, both Wife and Husband filed motions requesting that the trial court amend its dissolution judgment. On March 11, 2002, the trial court filed its amended judgment of dissolution of marriage. In its amended judgment, the trial court noted that the parties' eldest child, Jenna, was emancipated on November 14, 2001. This was prior to the entry of the court's original judgment of dissolution. As a result, the trial court amended its judgment to add a calculation of presumed child support for only one child. The trial court then ordered Husband to pay $ 1,603 per month, the amount of presumed child support originally ordered for both Jenna and Kyla, retroactive to January 1, 2000, up to and including November 2001. The trial court further ordered Husband to pay $ 1,146 per month in child support, the amount calculated for only Kyla, retroactive to December 2001 "and on the 1st day of each month thereafter, until further order of the Court." The trial court added the following sentence to both child support awards: "[Husband] shall be given credit for all child support payments made during this [retroactive] time period against this judgment." The trial court also amended its judgment so its child custody plan and its order regarding college expenses and health insurance would cover only the remaining minor child, Kyla.

The trial court also amended the division of property provisions in the original decree to include additional marital property. The values of three items of property awarded to...

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