Krepps v. Krepps

• Decision Date: 18 September 2007
• Docket Number: No. WD 66772.,No. WD 66750.,WD 66750.,WD 66772.
• Citation: 234 S.W.3d 605
• Parties: Sharlene KREPPS, Appellant-Respondent, v. Richard Lee KREPPS, Respondent-Appellant.
• Court: Missouri Court of Appeals

234 S.W.3d 605

Sharlene KREPPS, Appellant-Respondent, v. Richard Lee KREPPS, Respondent-Appellant.

No. WD 66750.

No. WD 66772.

Missouri Court of Appeals, Western District.

September 18, 2007.

Dennis J. Owens, Kansas City, MO, for Appellant-Respondent.

Les D. Wight, II, Independence, MO, for Respondent-Appellant.

Before LOWENSTEIN, P.J., ELLIS and HARDWICK, JJ.

HAROLD L. LOWENSTEIN, Judge.

Sharlene Krepps ("Wife") appeals a judgment and decree of dissolution claiming error associated with the trial court's award of custody of minor children, the award of maintenance and child support, the division of marital property, and the award of attorneys' fees. Richard Krepps ("Husband") cross-appeals the award of child support and maintenance. Wife's motions to dismiss Husband's cross appeal and to compel Husband to pay one-half the cost of the transcript were taken with the case.

I. FACTS

Husband and Wife were married in 1992. Both spouses worked as engineers. After the birth of their first child, Wife, then earning $65,000 per year as an engineer, became a stay-at-home mother. The couple decided that Wife would raise their daughter, Alexis, and Husband would work toward his professional engineer's license. They agreed to later switch roles so that Wife could work toward her license and Husband would care for the child. However, two years later a second child, Brock, was born. Brock was diagnosed at an early age with Asberger's Syndrome, a form of high-functioning autism. Wife never returned to her career. At the time of the dissolution, Alexis was ten years old and Brock was eight years old.

Husband was employed by Aquila as an engineer at a contract rate of $79,000 per year.¹ Until the separation, he evinced little interest in the children. Wife was the caregiver for the children, seeking care and treatment for Brock and managing the children's school and recreational activities. Wife instituted a gluten-free and casein-free diet, nutritional supplements, and therapy to allow Brock to function more normally. Wife stopped taking Brock to his local pediatrician and instead sought treatment, via webcam, from a homeopath doctor licensed in Wisconsin.² At the time of the dissolution, Brock had been mainstreamed into his class at his local elementary school.

In November 2003, Wife left the marital home and moved with the children into a condominium her parents had purchased. The condominium was located near the marital home so the children remained in the same school. Husband and Wife agreed the children should continue to attend that school rather than change to the school associated with Wife's address. Husband had limited access to the children during the separation.

In October 2004, Wife filed for dissolution. Her proposed parenting plan provided for joint legal custody but she asked for the bulk of the parenting time. She requested child support, maintenance, and attorneys' fees. She wanted final authority over major decisions for the children, especially as to Brock's treatment. Husband filed a counterpetition and proposed an alternate parenting plan.

In March 2005, the couple agreed on a temporary custody schedule pending the disposition of their dissolution. The children lived with Wife, and Husband had the children Wednesday evenings and every other weekend. Wife required that Husband agree to continue Brock's special diet and nutritional supplements. Husband agreed to maintain the diet but did not agree to follow the supplement regimen.

Wife did not obtain full-time employment until a year and a half after the November 2003 separation. Husband had been encouraging Wife to find employment in her previous career as an engineer and had been sending her notices of job openings, but Wife was reluctant and did not actively pursue a position as an engineer. She worked part-time in retail clothing sales for a short time but spent more on clothes than she earned in income. Wife began to look for full-time employment in May of 2005. She secured full-time employment in June 2005 selling nutritional supplements, earning $31,200 per year.

II. PROCEDURAL POSTURE

A. EVIDENCE AT TRIAL

At trial, Wife asked for primary physical custody of the children. She asked that the holidays be divided between the parents. She asked that Husband be ordered to follow Wife's instructions regarding the supplement and diet regimen. Wife wanted final decisions as to the children, including medical decisions.

Husband asked for joint physical and legal custody on an alternate week schedule. He claimed the supplements were unnecessary but was willing to continue the gluten-free and casein-free diet. Husband was also concerned that Wife was not taking the children to their local pediatrician but, rather, they were seeing, via webcam, a homeopath not licensed in Missouri. Husband asked that the court order that the children discontinue their treatments with the homeopath and return to their pediatrician. He asked that major decisions for the children be made jointly between the parents.

Wife presented the court with a great deal of evidence about the benefits to Brock of the supplements, special diet, and therapy. The children's former pediatrician testified that the diet and supplements were not proven beneficial, but there was no evidence that they caused harm, either. The trial court indicated great skepticism about Wife's supplement program and the children's treatment by an out-of-state homeopath. The trial court, in its findings, questioned the credibility of both parents.

Husband argued that Wife was underemployed in retail sales and could make significantly more in income as an engineer. He testified that he had forwarded her a number of open positions with Aquila upon which she refused to follow up. He also questioned her job search and her contention that, because she had been out of the workforce for nine years, she was not able to find a chemical engineering position. He presented evidence that an inexperienced chemical engineer or chemist could earn between $40,000 and $60,000.

B. TRIAL COURT'S JUDGMENT

The judgment of dissolution granted the parents joint physical and legal custody of the children. The court ordered that the parents alternate custody from week to week and designated Husband's address as the mailing address of the children. The trial court found that there was no credible scientific evidence as to the medical value of the supplement treatments but, likewise, there was no evidence that the supplements were harmful. The court ordered that Husband need not provide the supplements but ordered that the gluten-free, casein-free diet be continued. Treatments by the homeopath were to be discontinued and the children returned to the care of their local pediatrician.

The court found, further, that Wife was underemployed and that she did not diligently seek employment in the career for which she was best qualified. The court found that Wife could make $48,000 per year as an engineer. The trial court rejected the Form 14's proffered by both spouses and created its own, inputting $4,000 as Wife's monthly gross income, and $7,900 as Husband's monthly gross income.

The court awarded the marital home to Husband, the balance to be split evenly. Wife received marital assets valued at $184,699³ and was allocated $829 of marital debt. Husband received marital assets valued at $285,002 and was allocated $75,565 of the marital debt.

The judgment found that the presumed correct child support amount per the trial court's own Form 14 was $547 per month and ordered Husband to pay child support in that amount. Husband was ordered to pay Wife $300 monthly maintenance and $7,500 in attorneys' fees.

In her first point on appeal, Wife contests the trial court's custody determination. In her second point she claims the trial court erred in imputing income of $4,000 per month to her. In points three and four she contests the division of marital property claiming the trial court improperly considered Husband's contribution of nonmarital property to the purchase of the marital home and the trial court failed to properly consider her substantial individual debts in reaching its division of property. In her fifth point she claims the trial court's award of attorneys' fees was inadequate. In her sixth point, she asks this court to remand the judgment for the trial court to correct a mathematical error in the judgment.

Husband brings two points on cross-appeal. He first claims that the figure the trial court input as Husband's gross income in its Form 14 was incorrect. He next claims that the trial court erred in awarding maintenance to Wife.

III. DISCUSSION

This court reviews a court-tried civil case under the standard established by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The trial court's judgment must be supported by substantial evidence, and must not be against the weight of the evidence, and must not erroneously declare or apply the law. Id. at 32. Evidence is viewed in a light most favorable to the judgment, giving deference to the trial court's credibility determinations. Griffith v. Griffith, 163 S.W.3d 464, 465 (Mo.App. 2005). "In reviewing the record on appeal, this Court accepts as true the evidence and inferences therefrom that are favorable to the trial court's decree and ... disregard[s] all contrary evidence." In re the Marriage of Turner, 5 S.W.3d 607, 609 (Mo.App.1999). This court presumes the trial court's judgment is correct. Humphrey v. Sisk, 890 S.W.2d 18, 20 (Mo.App. 1994). Accordingly, the party asserting error has the burden to demonstrate the incorrectness of the decree. Id.

A. WIFE'S APPEAL

1. CHILD CUSTODY

Wife claims that the trial court's parenting plan granting each parent equal parenting time is against the weight of the evidence and not in the best interests of the children. Wife argues that she has been the sole caregiver and Husband did not evince any interest in the children until the...