Hammerschmidt v. Hammerschmidt

• Decision Date: 12 June 2001
• Citation: Hammerschmidt v. Hammerschmidt, 48 S.W.3d 614 (Mo. App. 2001)
• Parties: (Mo.App. S.D. 2001) Virginia Hammerschmidt, Petitioner/Respondent/Cross-Appellant v. William Hammerschmidt, Respondent/Appellant/Cross-Respondent. ED77688 & ED77718 0
• Court: Missouri Court of Appeals

48 S.W.3d 614 (Mo.App. S.D. 2001)

Virginia Hammerschmidt, Petitioner/Respondent/Cross-Appellant v. William Hammerschmidt, Respondent/Appellant/Cross-Respondent.

ED77688 & ED77718

Missouri Court of Appeals Eastern District

06/12/2001

Appeal From: Circuit Court of St. Louis County, Hon. George W. Draper, III

Counsel for Appellant: Susan M. Hais and Philip E. Adams

Counsel for Respondent: Gary J. Morris and Bernhardt W. Klippel, III

Opinion Summary: Husband filed a motion to declare his child emancipated and to terminate maintenance. The trial court declared the child emancipated as of January 1, 1999, and reduced monthly maintenance from $900 to $490.25. Both parties appeal.

Division Five holds: (1) Child was emancipated when, after reaching age 18, he withdrew from school and no manifest circumstances prevented his continuous enrollment.

(2) Under Section 452.370.4, wife, who failed to notify husband of child's emancipation, was required to repay child support paid after date of emancipation.

(3) Substantial evidence supported a finding of a substantial and continuing changed circumstances to support a reduction of maintenance.

(4) Where wife's actual and imputed income were insufficient to meet her needs, and husband had the ability to pay maintenance, complete termination of maintenance would have been inappropriate.

Hoff, C.J. and Snyder, Sr. J., concur.

Kathianne Knaup Crane, Judge

Husband filed a motion for a declaration of emancipation of child and to modify the dissolution decree by terminating maintenance. The trial court declared that the child was emancipated as of January 1, 1999 and reduced monthly maintenance from $900 to $490.25. Both parties appeal. Husband contends that the trial court erred in declaring the child emancipated as of January 1, 1999 rather than in the fall of 1997, when the child had turned 18 and was no longer enrolled in and attending secondary school. Husband also argues that the court erred in not terminating maintenance. Wife asserts that the trial court erred in requiring her to reimburse husband for support paid after the emancipation date and in reducing her maintenance. We hold that the child was emancipated as of November 30, 1997, when, after reaching age eighteen, he withdrew from school. Accordingly, we reverse that part of the judgment declaring the child emancipated January 1, 1999. We remand for a determination of the amount of child support to be repaid to husband. In all other respects the judgment is affirmed.

Virginia Hammerschmidt (wife) and William Hammerschmidt (husband) were married on November 13, 1965. Four children were born during the marriage, including their son, S.H., born October 19, 1979. The parties' marriage was dissolved on April 8, 1987.

In its dissolution decree, the court awarded custody of three of the children, including S.H., to wife and one of the children to husband. The court ordered husband to pay wife $900 per month as maintenance and $547 per month as child support for each of the three children of whom wife had custody. On January 14, 1997 the court modified the decree by increasing the child support for S.H. to $967 per month for nine months and $1067 per month thereafter.

On October 13, 1998, husband filed his motion for emancipation and to modify. After a hearing the court issued its findings of fact, conclusions of law, and judgment in which it declared S.H. emancipated as of January 1, 1999, ordered wife to reimburse husband the amounts he had paid her after that date for child support, and reduced husband's monthly maintenance obligation from $900 to $ 490.25.

DISCUSSION

We review the trial court's judgment on a motion to modify according to the principles in Murphy v. Carron, 536 S.W.2d 30, 32 (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, unless it erroneously declares the law, or unless it erroneously applies the law. Id.; Andrascsek v. Schepers, 25 S.W.3d 500, 501 (Mo. App. 2000). Because husband's and wife's points are interrelated, we consider them by topic, rather than in the order raised.

1. Child Support

a. Emancipation

For his first point husband contends that the trial court erred in declaring S.H. emancipated as of January 1, 1999. He argues that S.H. became emancipated when he turned eighteen and was no longer enrolled in and attending a secondary school program. He contends that this happened either on S.H.'s eighteenth birthday, October 19, 1997, or on November 30, 1997, the date that S.H. formally withdrew from school.

During the 1997-1998 school year S.H. was enrolled in a secondary school for his senior year of high school. S.H. turned 18 on October 19, 1997. S.H.'s transcript notes that S.H. stopped attending classes during the fall semester of 1997, but does not indicate on what date. S.H. formally withdrew from the fall semester on November 30, 1997. S.H. re-enrolled for the spring semester, but dropped out after attending six days of classes. S.H. did not receive any academic credit for the 1997-1998 school year.

S.H. did not graduate from high school or receive a General Educational Development diploma. In the fall semester of 1998 S.H. registered for 12 credit hours of classes at a community college but received a failing grade in each of these classes. In the spring semester of 1999, S.H. registered for 10 credit hours at the community college, but also received failing grades for all classes. S.H. received no academic credit for the 1998-1999 school year from the community college.

Section 452.340 RSMo (Cum. Supp. 1997), which was in effect at the time of the claimed emancipation of S.H., is the statute used to determine when S.H. became emancipated. Pasley v. Patton, 855 S.W.2d 385, 387 fn 2 (Mo. App. 1993). That section provides, in relevant part:

3. Unless the circumstances of the child manifestly dictate otherwise and the court specifically so provides, the obligation of a parent to make child support payments shall terminate when the child:

* * *

(5) Reaches age eighteen, unless the provisions of subsection 4 or 5 of this section apply.

4. If the child is physically or mentally incapacitated from supporting himself and insolvent and unmarried, the court may extend the parental support obligation past the child's eighteenth birthday.

5. If when a child reaches age eighteen, he is enrolled in and attending a secondary school program of instruction, the parental support obligation shall continue, if the child continues to attend [and] progresses toward completion of said program, until the child completes such program or reaches age twenty-one, whichever first occurs. If the child is enrolled in an institution of vocational or higher education not later than October first following graduation from a secondary school or completion of a graduation equivalence degree and so long as the child enrolls for and completes at least twelve hours of credit each term at an institution of vocational or higher education and achieves grades sufficient to re-enroll at such institution, the parental support obligation shall continue until the child completes his education, or until the child reaches the age of twenty-two, whichever first occurs....

The trial court found that S.H. was enrolled in and attending high school on his eighteenth birthday. The record on appeal does not contain any exhibits or other evidence on S.H.'s enrollment or attendance status as of that date. Accordingly, we assume, for purposes of this appeal, that S.H. was enrolled in and attending high school on his eighteenth birthday. Under the statute, husband's support obligation continued only "if" S.H. continued to attend and progressed toward completion of his high school program.

If S.H. did not continue to attend, however, he became emancipated under this statute unless each of the following circumstances existed:

(1) the interruption from the enrollment is temporary; (2) there is an evident intent to re-enroll; and (3) there are manifest circumstances which prevented the continuous enrollment. Daily v. Daily, 912 S.W.2d 110, 112 (Mo.App.1995). "Manifest circumstances" are those situations which are beyond a child's control. Id. Thus, if circumstances are within a child's control, the departure is considered voluntary and the fact the interruption in enrollment is temporary does not justify the court in waiving the continuous attendance requirement. Id.

Draper v. Draper, 982 S.W.2d 289, 294 (Mo. App. 1998).

Because there was evidence of an intent to re-enroll and actual re-enrollment the next semester, the issue is whether the "manifest circumstances" element was satisfied. The statute provides an exception for manifest circumstances where the court specifically so finds. The trial court did not, however, make a specific finding that it was extending the duration of child support because of manifest circumstances. Further, there was no evidence in the record that S.H. stopped attending classes and withdrew from school because of a medical condition or some other circumstance beyond his control on which the court could base such a finding.

In Draper, the daughter dropped out of college prior to the end of the spring semester. The record showed that the daughter had had problems with a boyfriend and difficulties with her knees, but the court found there was no showing "why either situation made her unable, as opposed to unwilling, to attend school." 982 S.W.2d at 295. Similarly, in Daily v. Daily, 912 S.W.2d 110, 112-13 (Mo. App. 1995), the daughter failed to return to college for the spring semester, but later began training to become Emergency Medical Technician. The court found that the daughter's choice not to return to college was a voluntary decision and that there were no external circumstances preventing her from returning to college. In both Draper and Daily, the respective...