Laubinger v. Laubinger

Citation5 S.W.3d 166
Decision Date24 August 1999
Docket NumberNo. WD 55912.,WD 55912.
PartiesMary M. "Pat" LAUBINGER, Appellant, v. Dwayne C. LAUBINGER, Respondent.
CourtCourt of Appeal of Missouri (US)

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James T. Cook, Kansas City, for appellant.

Karen A. Plax, Kansas City, for respondent.

Before: SPINDEN, P.J., and LOWENSTEIN and EDWIN H. SMITH, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 1999.

EDWIN H. SMITH, Judge.

Mary M. "Pat" Laubinger appeals from the circuit court's orders pendente lite (PDL ) entered in her dissolution of marriage proceeding, requiring her to pay: (1) temporary child support of $1,412 per month starting April 1, 1998, and $14,056 in retroactive support from March 1, 1997, to March 30, 1998, calculated at $1,004 per month; (2) attorney's fees of $5,000; and (3) costs of $2,500 to the respondent, Dwayne C. Laubinger.

The appellant raises six points on appeal. In her Points I and II, she claims that the trial court erred in entering its PDL orders without granting her request for a hearing and while proceeding under Sixteenth Judicial Local Circuit Court Rule 68.04 because it violated her due process rights. In her Points III and IV she claims the trial court erred in awarding temporary child support of $1,412 per month commencing April 1, 1998, because: (1) it misapplied the law in calculating the correct amount to award in that it used an improper version of Form 14; and (2) its finding as to the respondent's gross monthly income in calculating the presumed correct child support amount (PCCSA) pursuant to Form 14 was against the weight of the evidence. In Point V she claims the trial court erred in awarding retroactive temporary support of $14,056, calculated at the rate of $1,004 per month, because: (1) in doing so, it misapplied the law in that the award was made retroactive to March 1, 1997, which was prior to the date the respondent's application was made; (2) the respondent did not have custody of the child for whom support was due, Seth, until March 18, 1997; and (3) it failed to award her credit against the award for amounts paid by her on behalf of the child in the respondent's custody. In Point VI, she claims the trial court's awards of temporary attorney's fees and costs were against the weight of the evidence.

We affirm in part, and reverse and remand in part.

Facts

The parties were married on June 12, 1970. On January 8, 1996, the appellant filed her petition for dissolution of marriage in the Circuit Court of Jackson County, Missouri. The respondent filed his answer and cross-petition for legal separation on May 21, 1996. There were four children born of the marriage: Jennifer Mentlo Laubinger, born on January 24, 1976; Seth Allen Laubinger, born on April 5, 1980; and twins, Sara Highers Laubinger and Jean Highers Laubinger, born on January 1, 1987. During the time period at issue here, Jennifer was in the custody of the respondent and was attending college in New Orleans. She became emancipated on January 24, 1998. Seth has been in the custody of the respondent since March 1, 1997, and Sara and Jean have been in the custody of the appellant since March 1, 1997.

On March 20, 1998, the respondent notified the appellant's attorney of his intent to file an application for PDL orders regarding child support, attorney's fees and costs pursuant to Local Rule 68.04. On March 30, 1998, the respondent filed his application and required forms under the rule, along with his suggestions and affidavit in support of his application. The appellant filed her suggestions and affidavit in opposition to the application along with her required forms. The respondent filed his reply to the appellant's suggestions in opposition on April 4, 1998.

In his application for PDL orders and suggestions in support thereof, the respondent requested that the appellant be ordered to pay child support, retroactive child support, attorney's fees, and costs, and maintain health insurance for the children and pay a percentage of the children's uninsured medical expenses. The respondent alleged in his application that his gross monthly income was $3,000 and that the appellant's was $17,414. As such, he requested child support in the amount of $1,412 per month commencing on April 1, 1998, and $1,004 per month retroactive support from March 1, 1997. He further alleged that he did not have sufficient income or assets to prosecute the dissolution action and requested that the appellant be ordered to pay temporary attorney's fees and costs.

In her suggestions in opposition to the respondent's application for PDL orders, the appellant denied that her gross monthly income was $17,414 and alleged that it was instead $10,376.75. She also alleged that the respondent had a gross monthly income of approximately $6,349.85, but claimed that she could not arrive at an exact figure due to the respondent's failure to provide her with current financial information, as requested. The appellant conceded that, pursuant to Form 14, she would owe the respondent child support for Seth, but claimed that the proper amount was $63.57 per month. As such, she alleged that each party was able to fully support the children in their care and that no child support should be ordered for either party. The appellant further alleged that the respondent had sufficient assets to pay his own attorney's fees and costs.

On April 28, 1998, the trial court, the Honorable Christine Sill-Rogers, entered its PDL orders finding the appellant's gross monthly income to be $17,417, and the respondent's to be $3,000. The court ordered the appellant to pay temporary child support in the amount of $1,412 per month commencing April 1, 1998; retroactive child support in the amount of $14,056 for the period from March 1, 1997, to March 30, 1998; temporary attorney's fees in the amount of $5,000; and temporary costs in the amount of $2,500. The appellant was also ordered to maintain health insurance on the children and pay 85.3 percent of their uninsured medical, dental, vision, prescription, and orthodontic expenses.

On April 30, 1998, the appellant filed her request for an oral hearing on the PDL orders. In her suggestions in support of this motion, filed on May 4, 1998, she alleged that the trial court had used an improper version of Form 14 to calculate the correct amount of child support and that a factual dispute existed as to the true amount of the parties' respective gross monthly incomes. The trial court never ruled on this motion. The appellant filed her notice of appeal on June 3, 1998.

This appeal follows.

Standard of Review

PDL orders for child support, attorney's fees, and costs are authorized by §§ 452.3151 and 452.355, RSMo 1994, and are appealable. Wakili v. Wakili, 918 S.W.2d 332, 338 (Mo.App.1996). We review such orders under the same standard as a judge-tried case. Epple v. Epple, 893 S.W.2d 886, 887 (Mo.App.1995). As such, we will affirm an order PDL of the trial court unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Id. We view the evidence and the reasonable inferences drawn therefrom in a light most favorable to the prevailing party and disregard all contrary evidence. Ryder v. Ryder, 795 S.W.2d 411, 412 (Mo.App.1990). A trial court has greater discretion in entering orders PDL than final orders, and a reviewing court must be extremely cautious in altering such orders because they are temporary and their effects do not extend beyond the final hearing of the case. Stewart v. Stewart, 866 S.W.2d 154, 156 (Mo.App.1993).

I.

In her Point I, the appellant claims that the trial court erred by misapplying the law because its entry of its PDL orders for child support, attorney's fees and costs, without granting her request for a hearing and while proceeding under Local Rule 68.04, violated her due process rights, in that the rule is unconstitutionally vague and, therefore, void in that it does not specify whether or when a hearing is required on applications for orders PDL, allowing for arbitrary and discriminatory enforcement of the rule. With respect to this issue, it is well settled in the law that due process requires that a statute or rule have sufficient standards to prevent its arbitrary and discriminatory enforcement. State v. Allen, 905 S.W.2d 874, 877 (Mo. banc 1995). Local Rule 68.04 governs applications for orders PDL in dissolution proceedings in Jackson County, which comprises the Sixteenth Judicial Circuit of Missouri, and provides, in pertinent part:

1. Upon the filing of a verified application of any party, after reviewing pleadings, including each party's Statement of Income and Expenses (Form 1402B), the Asset Statement in Support of Application for Pendente Lite Order (Form 6804D), and if child support is requested, the Child Support Worksheet (Form 14), the court may enter an order pendente lite, without the necessity of a formal hearing, for temporary child support, maintenance, attorney's fees and costs....
3. An oral hearing may be requested (Form 6804H) on the order pendente lite (Form 6804G), or other relief requested in the application, but any request will not suspend or delay commencement of the rights and obligations under the order pendente lite. Any modification of the order pendente lite after an oral hearing shall be retroactive to the effective date of the original order.
4. Any request for an oral hearing on an order pendente lite may, in the sole discretion of the court, be submitted to a master....
6. The master shall submit his report to the court (Form 6804J) within 7 days of the hearing after which the court shall issue its judgment on the matters raised in the hearing.

The appellant, in making her claim that the rule is...

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