Kieffer v. Kieffer

• Decision Date: 06 December 1979
• Docket Number: No. 61469,61469
• Citation: Kieffer v. Kieffer, 590 S.W.2d 915 (Mo. 1979)
• Parties: Alan KIEFFER, Appellant, v. Eileen KIEFFER, Respondent.
• Court: Missouri Supreme Court

Page 915

590 S.W.2d 915

Alan KIEFFER, Appellant, v.Eileen KIEFFER, Respondent.

No. 61469.

Supreme Court of Missouri, En Banc.

Dec. 6, 1979.

Joseph A. Lott, Clayton, for appellant.

Morton R. Newman, Clayton, for respondent.

MORGAN, Judge.

After affirming the trial court's modification of a divorce decree which (1) increased support payments for one child and (2) ordered recovery of one-half movant's attorney fee, the Eastern District of the Court of Appeals certified the cause to this court because its " . . . examination of the recent decisions indicates that there is a conflict in the law as to whether it is essential there be a showing of financial need on the part of the spouse or former spouse seeking an award of an attorney's fee in a proceeding under the Dissolution of Marriage Act, §§ 452.300-452.415, RSMo 1969(1973 Supp.), or whether need is merely one factor to be considered by the court in exercising a sound discretion to arrive at a just determination."¹

Alan and Eileen Kieffer were divorced in 1973 with custody of their two year old child, Connie, being awarded to the mother with reasonable rights of visitation awarded the father.The latter was to pay $30 per week toward support of the child.

In 1976, Eileen sought by the motion, yet involved, to have the child support payments increased to $60 a week and for recovery of attorney fees incurred by her in the proceeding.After a hearing wherein both parties testified and their financial positions presumably were accurately disclosed, the trial court increased child support to $200 a month (something less than $50 a week) and further ordered Alan to pay $250 to Eileen's attorney, which represented one-half his fee of $500.The appeal involves both awards and each will be considered in the order presented.

Believing that the record presented sustains the opinion of the Eastern District upholding the modified child support, we incorporate herein portions thereof without benefit of quotation marks.

The evidence disclosed that by reason of inflation and the child's attainment of school age the costs of her needs had risen substantially.Eileen's total monthly expenses had increased from $550 at the time of the divorce to $865 on the date of the modification hearing, some three years later.The child's present monthly expenses were shown to be $342, without proration of household expenses.

Eileen's present assets included $4,500 in cash and deposit accounts, an automobile valued at $2,000 and a $30,000 house subject to an indebtedness of $2,800.Her cash and deposit accounts had been shown to be $3,000 on the date of the divorce and explanation was given that because of year-end expenses and emergencies the same now had been increased to $4,500.

Alan, during the period of interest, had seen his annual salary increase from $15,000 to $20,000.His net bi-weekly earnings are now $526 and his monthly expenses are $1,210.He has remarried and his present wife was the source of jointly-held $7,745 savings and checking accounts.Other assets included a 1976 Buick given to him by his mother, a 1973 Chevrolet purchased by his wife before their marriage, a residence in Bettendorf, Iowa, where they live and savings bonds worth $361.

The trial court, along with other evidence, took judicial notice of the increased cost of living from the time of the decree to its modification as evidenced by its interrogation of the parties.

Alan first contends that there was a failure of proof under § 452.370.1, which declares that modification is authorized only where there has been a " . . . showing of changed circumstances so substantial and continuing as to make the terms (of the decree) unreasonable."The burden of proving the same rests with movant, Sifers v. Sifers, 544 S.W.2d 269, 270(1)(Mo.App.1976); but, the fact a child has grown older and has more needs, aggravated by the increase in cost of living, has been held to be sufficient to increase an award of support due to changed circumstances.McGinley v. McGinley, 513 S.W.2d 471, 473(4)(Mo.App.1974).Similar changed conditions appear in the instant case.Argument is made to the contrary in reliance upon Plattner v. Plattner, 567 S.W.2d 139(Mo.App.1978), wherein modification was denied.Such reliance is ill-founded because in Plattner movant relied upon uncorroborated and varying estimates, instead of producing clear and unequivocal evidence that the expense of supporting the child had increased substantially.Movant therein relied on General propositions that the needs of growing children increase with age and that inflation was a contributing factor.The records as made are distinguishable and the argument now presented is rejected.

Secondly, we consider the propriety of awarding an attorney's fee, which is an issue less easily resolved because decisions in the area are obviously discordant.Some cases have held that an award of an attorney's fee in either a dissolution or modification case is appropriate only where there is evidence of the spouse's need and lack of sufficient means to finance the litigation (Johnston v. Johnston, 573 S.W.2d 406(W.D.Mo.App.1978);Ortmann v. Ortmann, 547 S.W.2d 226(E.D.Mo.App.1977);Dillon v. Dillon, 559 S.W.2d 81(S.D.Mo.App.1977)), while others have held that "need" is only one factor to be considered.(Ebinger v. Ebinger, 573 S.W.2d 738(E.D.Mo.App.1978);Gross v. Gross, 557 S.W.2d 448(W.D.Mo.App.1977);Eden v. Eden, 558 S.W.2d 394(S.D.Mo.App.1977)(award is within sound discretion of the trial court)).Recently, this Court in Dyche v. Dyche, 570 S.W.2d 293(banc 1978), emphasized that the award of an attorney fee was not premised on an award of support or maintenance or any other issue, such as custody, but upon the separate and distinct provisions found in § 452.355, which are:

The court from time to time after considering All relevant factors including the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under sections 452.300 to 452.415 and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment.The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.

(Emphasis added.)

Any effort to reconcile or distinguish cases in this area would be rather futile and lead to no advantage, particularly because it is difficult to delineate why courts of this state have found the wording of the statute to be unclear.Nevertheless, they have.

Where an ambiguity exists, in fact or by construction, it is proper to consider the history of the legislation, the surrounding circumstances and the ends sought to be accomplished.State ex rel. Zoological Park Subdistrict of City & County of St. Louis v. Jordan, 521 S.W.2d 369(Mo.1975);Protection Mutual Insurance Co. v. Kansas City, 504 S.W.2d...