Koch v. Koch

• Decision Date: 02 August 2019
• Docket Number: No. SD 35561,SD 35561
• Citation: 584 S.W.3d 347
• Parties: In re the Marriage of: George A. KOCH, Petitioner/Respondent-Appellant, v. Christine M. KOCH, Respondent/Movant-Respondent.
• Court: Missouri Court of Appeals

584 S.W.3d 347

In re the Marriage of: George A. KOCH, Petitioner/Respondent-Appellant,

v.Christine M. KOCH, Respondent/Movant-Respondent.

No. SD 35561

Missouri Court of Appeals, Southern District, Division Two.

Filed: August 2, 2019

Attorney for Appellant: Gerard J. Harms, Jr. of Lake Ozark, MO.

Attorneys for Respondent: Nan Stanley Jesi and William A. Shull, III of Warrensburg, MO.

JEFFREY W. BATES, J.

George Koch(Father) appeals from a judgment of modification ordering him to pay child support for his minor daughter (Child).Father argued he was exempt from paying child support because Child "was seeking to emancipate herself" pursuant to § 452.340 by "lying about her allegations that [Father] had raped her thereby destroying the parent/child relationship[.]"¹In support of this argument, Father sought to take depositions of both Child and a detective "for the purpose of refuting the allegations[,]" but the trial court prohibited Father from taking the depositions and determined Child was not emancipated.The court further found that Father was capable of providing support, imputed income to him and ordered that he pay monthly child support.

On appeal, Father presents three points.He contends the trial court erred by: (1) denying Father"the right to take depositions" of Child and the detective as "such depositions would have [led] to the discovery of admissible evidence that [Child] was seeking to emancipate herself"; (2) finding Father capable of obtaining employment to pay child support; and (3) imputing an hourly wage for full-time work.Because Father failed to meet his burden of demonstrating reversible error, we affirm.

Our review in this court-tried case is governed by Rule 84.13(d)andMurphy v. Carron , 536 S.W.2d 30, 32(Mo. banc 1976), which requires this Court to affirm the trial court’s judgment unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law.Id .;In re Marriage of Adams , 414 S.W.3d 29, 32(Mo. App.2013).All evidence and reasonable inferences therefrom are viewed in the light most favorable to the trial court’s judgment, and all evidence and inferences to the contrary are disregarded.Landewee v. Landewee , 515 S.W.3d 691, 694(Mo. banc 2017).We defer to the trial court regarding credibility determinations and assigning weight to witness testimony.Metzger v. Franklin , 496 S.W.3d 547, 549(Mo. App.2016).The trial court is free to believe all, none, or part of the testimony of any witness.Archdekin v. Archdekin , 562 S.W.3d 298, 310(Mo. banc 2018).The party challenging the judgment bears the burden of proving error.Id . at 304.The following facts have been prepared in accordance with these principles.

Child was born in December 2001 when Father was married to Christine Koch(Mother).Their marriage was dissolved in March 2005, and the dissolution decree was later modified in September 2013.At that time, the modification judgment granted the parties joint legal and physical custody of Child and designated Father’s address as Child’s address for mailing and educational purposes.Neither party was ordered to pay child support.

In July 2017, Child disclosed that she had been sexually assaulted by Father.Soon after, a felony complaint was filed against Father.He was charged with rape, sodomy and incest.After Father’s arrest, he posted bond with the condition he have no contact with Child or any children under the age of 17 years old.Father, a doctor, lost his medical license privileges and employment due to the pending charges.

In December 2017, Mother filed her motion to modify the judgment.Citing a substantial and continuing change of circumstances, Mother requested that she be granted sole legal and physical custody of Child, and that Father have no visitation or contact with Child.Mother also requested that Father be ordered to pay child support.In response, Father filed a counter-motion to modify the judgment.In that motion, Father stipulated to Mother’s request for sole custody and no contact with Child.As to child support, however, he alleged that he should be ordered to pay zero dollars ($0.00) per month because any presumed amount was "unfair and unconscionable."

In January 2018, Father sought to depose Child and a detective investigating the criminal case against Father.In February 2018, the trial court issued a protective order prohibiting Father from taking both depositions and determined that Child was not emancipated.

In April 2018, a trial was held on the parties' motions to modify.The court refused Father’s request to reconsider its ruling on emancipation and limited evidence to the child support issue only.Father was the only witness to testify.Each party submitted a Form 14.Several other exhibits were admitted in evidence concerning the parties' income and expenses, including Child’s extensive medical expenses.At the time of trial, Child was staying at a long-term residential treatment facility.

In May 2018, the trial court entered its judgment of modification.The court found a substantial and continuing change of circumstances sufficient to grant modification of the judgment, and awarded Mother sole legal and physical custody of Child.With respect to child support, the court found that Child "is in need of support from [Father] and [he] is able-bodied and capable of providing the same for [Child]."Pursuant to Rule 88.01 and the court’s own Form 14, the court calculated that Father’s child support obligation was $568 per month, and ordered Father to pay that amount.

This appeal followed.Additional facts will be included below as we address Father’s three points on appeal.Because Points 2 and 3 challenge the child support award, we discuss both of those points together.

Point 1

Father’s first point challenges the trial court’s decision to prohibit Father from taking depositions of Child and the detective.Our review of the court’s ruling to quash the depositions is for an abuse of discretion.SeeJones v. City of Kansas City , 569 S.W.3d 42, 60-61(Mo. App.2019).The following facts are relevant to this point.

In January 2018, a month after the parties filed their motions to modify, Father issued to Mother a notice to take a videotaped deposition of Child.Father also sought to depose the investigating detective.

In February 2018, Mother filed separate motions for a protective order requesting the trial court to prohibit Father from taking either deposition.Mother’s motions argued that neither deposition was "reasonably calculated to lead to the discovery of admissible evidence regarding [Father’s] child support obligation, the only contested issue in this case."With respect to Child, Mother further argued that her deposition is: (1) a "fishing expedition" in order to produce statements under oath of an alleged victim in a criminal case without the prosecuting attorney present to defend the deposition; and (2) would also allow Father to inquire into the sexual history of Child as "the Rape Shield Law is inapplicable to the minor child’s testimony in a civil deposition[.]"With respect to the detective, Mother argued that his deposition "would cause an unnecessary expense to [Mother] as her counsel will be attending a deposition and purchasing a transcript that will have no use in the present litigation."

The trial court conducted a hearing on Mother’s motions via telephone.Father’s counsel argued that evidence of the truthfulness of the allegations against him was relevant to Father’s responsibility to pay child support and the court’s determination whether to impute income.

In March 2018, the trial court disagreed with Father and granted Mother’s motions for a protective order prohibiting Father from taking both depositions.The court gave "no credence to the assertion of obtaining emancipation and permanent removal of [Father’s] obligation to [provide] support based on truthfulness of the allegations[.]"The court determined that Child was not emancipated.²

In Point 1, Father contends the "trial court erred in denying Father the right to take the depositions" of Child and the detective because "such depositions would have [led] to the discovery of admissible evidence that [Child] was seeking to emancipate herself[.]"Father’s allegation of error is based entirely on the premise that the trial court"misapplied section 452.340" in determining that Child had not emancipated herself.According to Father, "Child was purposefully and knowingly lying about her allegations that [he] had raped her thereby destroying the parent/child relationship, which is effectively seeking to emancipate herself from [him]" as a matter of law.We disagree.

The termination of child support payments is governed by § 452.340.3.This subsection of the statute states:

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:

(1) Dies;

(2) Marries;

(3) Enters active duty in the military;

(4) Becomes self-supporting, provided that the custodial parent has relinquished the child from parental control by express or implied consent;

(5) Reaches age eighteen, unless the provisions of [§ 452.340.4 or § 452.340.5] apply; or

(6) Reaches age twenty-one, unless the provisions of the child support order specifically extend the parental support order past the child’s twenty-first birthday for reasons provided by [§ 452.340.4].

§ 452.340.3(1)-(6)(italics added).The only part of the statute at issue here is § 452.340.3(4)."This Court’s primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute at issue."Parktown Imports, Inc. v. Audi of Am., Inc. , 278 S.W.3d 670, 672(Mo. banc 2009).When the plain language and legislative intent are clear, this Court is bound by the statutory language.Goerlitz v. City...