Lynch v. Lynch

• Citation: 592 S.W.3d 806
• Decision Date: 07 January 2020
• Docket Number: No. ED 107455,ED 107455
• Parties: LaDonna S. LYNCH, Respondent, v. Paul C. LYNCH, Appellant.
• Court: Missouri Court of Appeals

592 S.W.3d 806

LaDonna S. LYNCH, Respondent,

v.Paul C. LYNCH, Appellant.

No. ED 107455

Missouri Court of Appeals, Eastern District, SOUTHERN DIVISION.

Filed: January 7, 2020

FOR APPELLANT, James M. McClellan, PO Box 825, Sikeston, Missouri 63801.

FOR RESPONDENT, Richard G. Steele, Bradshaw, Steele, Cochrane, Berens & Billmeyer, L.C., PO Box 1300, Cape Girardeau, Missouri 63702-1300.

GUARDIAN AD LITEM, Andrea Zimmerman, 1440 Kurre Lane, Cape Girardeau, Missouri 63701.

Philip M. Hess, Presiding Judge

Introduction

Paul Lynch ("Father") appeals the trial court’s judgment dissolving his marriage to LaDonna Lynch ("Mother"). Father claims seven points on appeal due to errors in the judgment dissolving marriage ("Original Judgment") as amended by a second judgment ("Amended Judgment"), which addressed the parties’ post-judgment motions.

First, Father claims the trial court erred in denying him joint legal custody of the three minor children. Father argues: he had a long career in education; there was no evidence of neglect or abuse; the court misused the eight-factor evaluation; he would be paying for 70% of numerous aspects of the children’s lives with no control or legal custody; and he and Mother shared beliefs on how to raise the children. Mother claims she and Father have problems communicating and argues the trial court correctly made its finding for custody considering all of the factors involved in determining the best interests of the children. Father failed to show the trial court erred in its custody determination.

Second, Father claims the trial court erred in calculating the amount of child support. Father argues the trial court failed to calculate the correct child support amount because it did not use the correct amounts for Mother’s monthly gross income, the health insurance costs, or the credit Father was owed for overnight visitation. Mother responds the trial court adequately calculated these figures. We find the trial court made errors in calculating the presumed child support amount. We remand for the trial court to recalculate child support in accordance with this opinion and to reconsider if the correct presumed child support amount is just and appropriate.

Third, Father claims the trial court erred in ordering payment of child support retroactively. Father argues Mother did not request retroactive child support and the award was not supported by the evidence before the trial court. Mother counters the trial court was able to award retroactive child support because there was evidence of nonsupport by Father during the time in question and Mother was not required to request it. We remand for re-calculation of retroactive child support in accordance with this opinion.

Fourth and fifth, Father claims the trial court erred in ordering Father to pay 70% of the non-covered medical expenses and 70% of parochial school expenses for the minor children. Father claims the trial court arrived at 70% because of errors in calculating Mother’s monthly income; therefore, he claims the errors in his second point require a recalculation of this proportion of expenses. Father argues he does not have any decision making ability to justify this high amount of medical expenses. Father also argues he does not have the financial ability to afford 70% of the parochial school expenses. Father argues he should not be forced to pay this proportion without decision making ability and he should only be expected to pay for parochial school if the child does go to a parochial school. Mother counters the trial court did not abuse its discretion because it considered all relevant factors in its decision to order Father to pay 70% of the parochial school expenses and 70% of the non-covered medical expenses.

The trial court used the proportion of the parties’ incomes to calculate the relative responsibility for non-covered medical expenses and parochial school tuition. If this proportion changes based on the newly completed child support calculations, the trial court must reconsider the 70% Father was ordered to pay using all relevant factors, including the parties’ ability to pay.

Sixth, Father claims the trial court erred in improperly distributing the marital debts without appropriate findings. Father claims the distribution of debt, assumedly based on the comparison of income analysis argued in his second point, is unfairly weighing against him. Mother counters the trial court considered all relevant factors in its distribution of the marital debts and did not abuse its discretion. Last, Father claims the trial court erred in its valuation of the family home when determining the distribution of property. Father argues the evidence of the purchase was dubious, he did not waive his marital rights to the home, and he received too small of a share of the value of the home. Mother again counters the trial court considered all relevant factors in its valuation of the family home and did not abuse its discretion. Father has failed to show the trial court abused its discretion in its distribution of marital assets, debts, and the family home.

The calculation of the child support award is reversed. We remand with instruction to recalculate the proportion and amount of the parties’ income and reconsider the effect of this calculation on child support and the division of expenses in accordance with the opinion.

Factual and Procedural Background¹

Mother and Father married on September 12, 1992. They separated on October 14, 2014. Mother and Father had five children together, two of which were emancipated at the time of the judgment of dissolution. Father has been dating another woman since the separation. Mother claims Father had at least one affair during the marriage.

Mother filed a petition for dissolution of marriage on February 25, 2016. Father filed a counter-petition on March 9, 2016. Father claimed he voluntarily paid Mother approximately $46,000 between February 2016 and November 2017. Both Mother and Father filed a Civil Procedure Form No. 14 (" Form 14") proposing child support amounts to the trial court.

Mother and Father filed separate parenting plans for their three unemancipated children. Mother wanted sole legal and physical custody of all three unemancipated children while Father wanted joint legal custody of all three children and joint physical custody of the parties’ youngest child (the "Youngest Child").

The parties generally agreed to the division of certain marital property, which included cars, certain household items, and some debt incurred by the parties. The parties requested the trial court separate and divide disputed marital/non-marital property which included: the marital equity in the parties’ home; a growth fund; a bank account; a debt to the Knights of Columbus; and another unsecured debt. Mother sought 60% of the assets and 40% of the debts due to Father’s marital misconduct.

The trial court held hearings on April 6 and June 18, 2018.

Original Judgment

The trial court entered the Original Judgment on September 19, 2018. The trial court denied the custody arrangements proposed by the parties. Because the parents did not agree upon a parenting plan, the trial court had to make findings based on the eight factors under Section 452.375.2² and the public policy stated in Section 452.375.6 in determining these custody arrangements in the Original Judgment. The trial court granted Mother sole legal and physical custody of two of the three minor children. The trial court granted Mother sole legal custody but joint physical custody of the Youngest Child.

To support this custody arrangement, the trial court found Husband was less than cooperative in counseling sessions with Mother for the Youngest Child. Based on credible testimony from the counselor, Father seemed indifferent and frustrated with the process.

The trial court found Mother credibly testified regarding concerns about the parties’ inability to communicate, Father’s anger and aggression issues, and the effect of alcohol consumption on Father’s decision. The trial court found Father "delegitimizes" the children’s feelings, specifically, the Youngest Child. The trial court noted there is no evidence of physical abuse or neglect by either parent. But, the trial court found Father can be aggressive and quick to anger which affects the relationships between Father and the children. The trial court found the emotional health of the children, especially the Youngest Child, was not helped by the issues between Mother and Father and their inability to communicate or make decisions.

When the trial court granted sole legal custody of all three unemancipated children to Mother, it found Father voluntarily stepped out of the older unemancipated children’s lives and Father "demonstrated a lack of empathy toward [the Youngest Child] and an inability to communicate effectively with [Mother]."

The trial court completed its own Form 14 as required when denying the parties forms to determine how much child support Father must pay to Mother. The trial court used Mother’s income from social security disability and an estimate of her income from a part-time job in calculating the presumed child support amount ("PCSA"), a prerequisite to a final child support award. The trial court input the health insurance expenses provided by Father in its Form 14. The trial court granted no credit for overnight visitation to Father in its Form 14. The trial court granted retroactive child support to Mother starting in November 2017, the month Father stopped voluntarily paying support.

The trial court was asked to consider transfers Mother made to herself from a Bancorp bank account ("Bancorp account"), one of Mother’s non-marital accounts. Mother’s brother was responsible for her finances and testified about Mother’s fiscal history. A handwritten ledger, entered as an exhibit, showed money being transferred out of the Bancorp account at approximately $87,500 per year from 2010 to 2016. The trial court...