Lipic v. Lipic

• Court: Missouri Court of Appeals
• Writing for the Court: Glenn A. Norton
• Citation: Lipic v. Lipic, 103 S.W.3d 144 (Mo. App. 2003)
• Decision Date: 28 January 2003
• Docket Number: No. ED 80252.,ED 80252.
• Parties: Mary K. LIPIC, Appellant, v. Joseph G. LIPIC, Respondent.

Page 144

103 S.W.3d 144

Mary K. LIPIC, Appellant, v. Joseph G. LIPIC, Respondent.

No. ED 80252.

Missouri Court of Appeals, Eastern District, Division Four.

January 28, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 2, 2003.

Application for Transfer Denied May 27, 2003.

COPYRIGHT MATERIAL OMITTED

Lawrence Gillespie, Clayton, MO, Bruce Hilton, Kirkwood, MO, for appellant.

Charles Todt, Clayton, MO, for respondent.

GLENN A. NORTON, Judge.

Mary Lipic ("wife") appeals the judgment dissolving her marriage to Joseph Lipic ("husband"). Wife specifically challenges the visitation schedule, the enforcement of a post-nuptial agreement and the determination of child support. We reverse in part and affirm in part.

I. BACKGROUND

Wife filed for dissolution of her marriage to husband. In its decree of dissolution, the trial court gave physical and legal custody of the couple's two children to wife and granted husband visitation for a period of three months subject to "monitoring." The court stated that it was imposing the initial three-month schedule because husband lacked an "understanding of the emotional and developmental needs of the minor children." An outside service provider was ordered to monitor husband and assist him in his parenting skills. This monitoring would automatically end after three months.

During the course of the marriage, husband and wife had signed a post-nuptial agreement apportioning to each party their previously-held separate assets, with the parties' subsequently-acquired marital property to be divided equally. Under the agreement, wife waived her right to maintenance and attorney fees in the event that she filed for a dissolution. In consideration for signing the agreement, husband agreed to pay wife $5,000 at the time of the agreement's execution, $12,000 one year later and a sum of between $10,000 and $30,000 upon dissolution of the marriage, depending upon the length of the marriage. Both husband and wife obtained the advice of counsel before signing the agreement. Two different attorneys recommended that wife not sign it. At the dissolution proceeding, wife alleged that the agreement should not be enforced because it was void on its face. The trial court disagreed and included the terms of the agreement in the decree of dissolution.

Husband was the beneficiary of an irrevocable trust that his parents had arranged. Husband maintained a job, but the trial court found that he was employed "ridiculously below his mental and earning capacity." In calculating the child support to be paid by husband, the trial court imputed some income to husband based on his capacity to earn at a higher income level, but refused to impute income from the trust.

II. DISCUSSION

On appeal from a decree of dissolution, we will sustain the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Anderson v. Anderson, 55 S.W.3d 444, 445 (Mo.App. E.D.2001) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). We accept the evidence and inferences favorable to the trial court's decision and disregard all contrary evidence and inferences. Chen v. Li, 986 S.W.2d 927, 931 (Mo.App. E.D.1999).

A. Monitored Visitation

In Point I, wife contends that the trial court misapplied the law when it allowed husband's monitored visitation to end without a showing that husband eliminated or reduced his lack of understanding of the children's emotional and developmental needs. Wife relies on section 452.400.2 RSMo (2000)¹ for the proposition that husband is first required to show rehabilitation before the monitoring restriction can be removed. Wife's reliance is misplaced. Subsection 2 of that statute provides:

The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child, but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger the child's physical health or impair his emotional development. When a court restricts a parent's visitation rights or when a court orders supervised visitation because of allegations of abuse or domestic violence, a showing of proof of treatment and rehabilitation shall be made to the court before unsupervised visitation may be ordered.

The requirements of this subsection are limited to "instances when the court is modifying an existing order." Turley v. Turley, 5 S.W.3d 162, 165 (Mo. banc 1999). The order before us is an original grant of visitation rights, not a modification. Therefore, Section 452.400.2 does not apply.

Section 452.400.1 addresses original orders and gives the court broad powers to establish visitation to protect the children's best interest:

A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger the child's physical health or impair his emotional development.

See H.S.H. ex rel R.A.H. v. C.M.M., 60 S.W.3d 656, 660 (Mo.App. E.D.2001). In J.L.S. v. D.K.S., this Court evaluated the propriety of automatically lifting a restriction on visitation in an original order. 943 S.W.2d 766 (Mo.App.E.D.1997). In J.L.S., the father underwent a male to female sex-reassignment surgery while he and his wife were separated, but before the dissolution of the marriage. Id. Upon dissolution, the trial court ordered that there would be no visitation with the father for twelve months. Id. at 772. After twelve months, an unrestricted visitation schedule was to commence automatically. Id. The mother in J.L.S. made an argument similar to wife's argument here: that the trial court erred by including in its original order a provision automatically removing the restriction on the father's visitation without requiring an affirmative showing by the father of rehabilitation. Id. at 772. This Court found that at the time of the original visitation decree the "removal of the restriction on father's visitation rights at the end of twelve months was not supported by the evidence." Id. at 773. The case was remanded back to the trial court so that "in the best interest of the children, a reevaluation of all parties" could occur before the father was granted visitation. Id.

Thus, to insure protection of the children's best interest under section 452.400.1, a trial court is required to reevaluate the parties' situation before lifting a restriction placed on visitation when, at the time the restriction is imposed, the court cannot determine what will be in the children's best interest. See J.L.S., 943 S.W.2d at 773.

There may be cases in which, at the time of the original order granting visitation, the court can determine what will be in the best interest of the children after a given period of restricted visitation. For example, a trial court could determine that given a parent's long absence from the children, it would be best that the first few visits with that parent take place at the home of a grandparent or other relative, but that thereafter unrestricted visitation would be appropriate. In those cases, the trial court may be in a position to know what is in the best interest of the children at the end of those initial visits without first requiring the parties to come back before the court for a reevaluation of the situation.

That is not the situation here. In this case, the trial court's decision to remove monitoring at the end of three months was not supported by the evidence before it at the time the dissolution decree was entered. The trial court imposed the monitoring in recognition of the "emotional needs of the children and lack of significant contact between [husband] and the minor children, and lack of [husband's] understanding of the emotional and developmental needs of the minor children." To address these concerns the court ordered the monitoring to be done, not by a family member, but by an outside service provider with theoretical expertise in the area of family developmental needs. The record reveals nothing from which the trial court could have determined the type of parent husband would be after three months of monitoring and assistance from the outside provider. Therefore, we must remand the case for a reevaluation of the parties' situation to determine what visitation schedule is in the best interest of the children. See J.L.S., 943 S.W.2d at 773.

Point I is granted.

B. Post-Nuptial Agreement

In Point II, wife contends that the trial court erred in finding that the post-nuptial agreement was enforceable. Wife urges this Court, based on law from other jurisdictions, to find that post-nuptial agreements are to be treated differently from ante-nuptial agreements and dissolution settlement agreements. According to wife, the fact that one party signs the post-nuptial agreement out of a desire to keep the marriage intact requires courts to treat them as being inherently different from ante-nuptial agreements — which are signed in contemplation of entering marriage — or dissolution agreements — which are signed when both parties acknowledge that the marriage is over. Essentially, wife would have us hold that post-nuptial agreements in Missouri are against public policy. We decline to do so.

No court in Missouri has declared that post-nuptial agreements are against public policy. This Court has addressed whether a trial court properly divided property under a post-nuptial agreement. Reisenleiter v. Reisenleiter, 926 S.W.2d 914, 916 (Mo.App. E.D.1996). In Reisenleiter, the parties had stipulated in open court that the agreement would control the division of property in the dissolution proceeding, and therefore this Court found that the agreement governed. See id. at 918. While Reisenleiter did not directly address the public policy of post-nuptial agreements, when a public policy issue is...