Keller v. Keller

• Decision Date: 25 April 2017
• Docket Number: WD 79931
• Parties: Kathy KELLER, Appellant, v. John B. KELLER, II, Respondent.
• Court: Missouri Court of Appeals

516 S.W.3d 906

Kathy KELLER, Appellant,

v.John B. KELLER, II, Respondent.

WD 79931

Missouri Court of Appeals, Western District.

April 25, 2017

Anthony W. Bonuchi, Kansas City, MO, for appellant.

Sara C. Michael, Jefferson City, MO, for respondent.

Before Division Three: Anthony Rex Gabbert, Presiding Judge, Victor C. Howard, Judge and Cynthia L. Martin, Judge

Cynthia L. Martin, Judge

Kathy Keller¹ ("Mother") appeals from a judgment modifying her child support obligation to continue support for a child beyond the age of eighteen because the child was determined to be mentally incapacitated from supporting himself and insolvent. We affirm.

Factual and Procedural Background²

Mother and John Keller, II ("Father") divorced in 1999. They had two children during the marriage: John Keller, III ("Son"), born September 29, 1992, and Kathianne Keller ("Daughter"), born January 2, 1995. Mother and Father were awarded joint legal custody. In 2000, the dissolution decree was modified by stipulation to require Father to pay Mother $1,600 per month for child support, as both children lived primarily with Mother. In 2010, Son began living with Father. The dissolution decree was again modified by stipulation in 2011. The modification transferred physical custody of Son to Father. Father was ordered to pay Mother $596 per month in child support, representing the difference between Father's $931 child support obligation for Daughter and Mother's $335 child support obligation for Son.

In July 2013, Father filed a motion to modify child support. Father alleged that Daughter had become emancipated. And Father alleged that although Son was over the age of eighteen, he was not emancipated because of diagnoses of autism

, generalized anxiety disorder, obsessive compulsive disorder, and bipolar mental illness received years earlier. Father argued that Mother's child support obligation for Son should continue because Son was mentally incapacitated from supporting himself, insolvent, and unmarried, pursuant to section 452.340.4.³ Father also argued Mother's child support obligation for Son should be increased consistent with Mother's increased income.

Father's motion to modify asserted that due to Son's mental condition, Son was under the full time care of a psychologist and psychiatrist, took a number of medications, and was without the means or ability to be self-supporting. Father also stated that Son attempted classes at Columbia College after high school, but was only partially successful and had not enrolled in or attended classes for six months as of the filing of Father's motion. Additionally, Father alleged that, on or about November 21, 2012, Son was determined totally disabled by the Social Security Administration and that the determination found Son unable to support himself through regular employment.

Mother contested Father's motion to modify with respect to Son, but not with respect to Daughter, as Mother agreed Daughter was emancipated. Mother denied that there was any basis for the trial court to extend her child support obligation for Son based on his alleged status as mentally incapacitated from supporting himself, insolvent, and unmarried.

Mother then filed two Affidavits for Termination of Child Support, one for Daughter and one for Son. In the Affidavit for Termination of Child Support for Son, Mother alleged that Son was twenty-one years of age and had failed to meet the requirements for continued support for a child pursuing post-secondary education as provided by section 452.340.5. Mother did not check an available box which would have alleged that Son should be declared emancipated because "[t]he child is not physically or mentally incapacitated from supporting himself or herself, and the child's circumstances do not manifestly dictate that child support should continue."⁴ Father responded to Mother's Affidavits, agreeing Daughter was emancipated, but contesting that Son was emancipated, noting his pending motion to modify which alleged to the contrary.

The trial court scheduled an evidentiary hearing on June 6, 2014. At the beginning of the hearing, Mother filed a motion for summary judgment. Mother alleged that because Son had already turned eighteen before Father filed his motion to modify, and because Son had not continued his post-secondary education to defer emancipation to the age of twenty-one, Son was emancipated as a matter of law before Father filed his motion to modify. The trial court granted Father time to respond to the motion for summary judgment, but proceeded with the evidentiary hearing.

The trial court ultimately granted Mother's motion for summary judgment. We reversed, noting that Father was not barred from filing a motion to modify child support merely because Son had already turned eighteen,⁵ and finding that although the evidence supported Mother's Affidavit seeking to terminate support because Son had not continued his education after he turned eighteen, genuine issues of fact remained in dispute regarding whether Son was mentally incapacitated from supporting himself and insolvent. Kay v. Keller , 462 S.W.3d 748, 755 (Mo. App. W.D. 2015).

Following remand, the trial court conducted an additional evidentiary hearing on December 8, 2015. The evidence from the combined hearings established that Son was diagnosed with autism

when he was about three years old, and with generalized anxiety disorder, obsessive compulsive disorder, and bipolar disorder in his early-to-mid teenage years. Shortly after Son began living with Father in 2010, Father filed an application to seek Social Security disability benefits. Mother was unaware of this fact, and had no contact with Son after Son began living with Father.⁶ When the dissolution decree was modified in 2011, Son was already eighteen, though Mother believed Son would continue his post-secondary education.

During the second hearing, Father sought to introduce records from the Social Security proceeding that determined Son's disability. Mother objected, arguing that the records contained hearsay, and that the findings were not binding on the court. The trial court permitted the records to be introduced "for purposes of [Son] getting Social Security disability and what [the Social Security Administration] found," but agreed that the Social Security Administration's decision was not binding on the trial court.⁷

Father testified about Son's health history and day-to-day routine. In treating his diagnoses, Son has been prescribed numerous medications and has been under the care of a psychologist and psychiatrist throughout his life. Son graduated high school and enrolled in and passed three college courses, though he required accommodations.

Father assisted Son in finding employment. Son began vocation rehabilitation services with the MORE Group. Eventually, Son got a job at a fast-food restaurant. Son worked about two and a half hours per day on Fridays, Saturdays, and Sundays. For the first month or so, the MORE Group provided Son with job coaching.

Father testified that following each work shift, Son would suffer severe periods of "decompensation." During these periods, Son would remain in his room and rock himself back and forth, on and off, for hours and throughout the night. Son would stay in his room following a work shift until he needed to leave for the next day's shift. These periods of decompensation, according to Father, would worsen after consecutive days of work, and would include periods lasting up to two days following three consecutive days working two-to-three-hour shifts. This behavior increased over time. Son worked at the fast-food restaurant for about a year before quitting, telling Father that it was too stressful. Since leaving that employment, Son's decompensation behavior has continued, including periods of isolation, rocking, and sleepless nights. Son recently begun searching for another job with the help of the MORE Group. However, he has not been successful, and has reportedly missed appointments, and arrived to meetings exhibiting poor personal hygiene. Father testified that he did not believe Son was capable of working an eight-hour day or any more hours than he worked at the fast-food restaurant.

In his daily life, Father testified that he has worked with Son to teach him ordinary skills such as driving, buying gas, grocery shopping, and getting his hair cut. While Son is able to drive, even to make trips from Jefferson City to Columbia, Son once burned out an engine because there was no oil in the car, despite a dashboard light being on. Son has trouble counting money, but is able to use and pay his own credit card. Son has learned to do his own laundry after receiving specific instructions from Father, and can cook simple meals using a microwave or a skillet.

By the time of the second hearing, Son was receiving $734 per month in disability benefits. When Son worked at the fast-food restaurant, he was paid approximately $200 per month. Son's employment earnings resulted in a calculated offset in the disability benefits he was receiving at that time. Father explained outside income paid directly to Son results in a partial offset against Son's disability benefits.

Father testified that Son's disability check is deposited into a special account. Father filed an Income and Expense Statement along with his motion to modify which claimed expenses incurred by him and related to Son in the amount of $760 per month. Father testified that he takes $250 per month from Son's disability benefits to cover a portion of Son's household expenses, including rent, utilities, cable, internet, clothing, and automobile maintenance. Father generally testified that he pays out of his own pocket for Son's other expenses in excess of his disability benefits. Father testified that Son uses approximately $500 per month from his disability benefit to pay for gasoline, eating out, and other personal needs.

Mother testified that Son should be able to find suitable...