M.L.H. by D.R.H. v. W.H.P., s. WD

• Citation: 831 S.W.2d 677
• Decision Date: 21 April 1992
• Docket Number: Nos. WD,s. WD
• Parties: M.L.H., by Mother and Next Friend, D.R.H., Plaintiff, D.R.H., Individually, Respondent-Appellant, v. W.H.P., Appellant-Respondent. 44192, WD 44249.
• Court: Court of Appeal of Missouri (US)

Page 677

831 S.W.2d 677

M.L.H., by Mother and Next Friend, D.R.H., Plaintiff, D.R.H., Individually, Respondent-Appellant, v. W.H.P., Appellant-Respondent.

Nos. WD 44192, WD 44249.

Missouri Court of Appeals,

Western District.

April 21, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

June 2, 1992.

Application to Transfer Denied July 21, 1992.

Michael J. Mann, Kansas City, Guardian Ad Litem.

David T. Greis, Kansas City, for appellant-respondent.

Linda F. Dycus, Daniel L. Franco, Kansas City, for respondent-appellant.

Before FENNER, P.J., and ULRICH and SPINDEN, JJ.

ULRICH, Judge.

D.R.H., (mother), in her individual capacity, and on behalf of her minor child, M.L.H., sued W.H.P. (father), the biological father of M.L.H. in a paternity action. Mother petitioned the court for declaration of paternity, sole custody of M.L.H., child support, payment for unreimbursed necessaries, and attorney fees. Father counterclaimed requesting that the court grant him reasonable visitation rights or joint custody of M.L.H. Father also requested that M.L.H.'s surname be changed to his surname. After hearing substantial evidence, the trial court ordered that mother be M.L.H.'s residential custodian with primary care, custody, and control of the child. Father was awarded joint legal custody of M.L.H. with the right to reasonable visitation with the child. The court found that mother needs, and that father has the ability to pay, $1,500 per month as reasonable child support. The court found that retention of mother's surname by M.L.H. was in the child's best interest and ordered that the child retain the mother's surname. Finally, the trial court ordered father to pay $17,000 for mother's reasonable attorney fees. Both parties appealed the trial court's judgment.

Father argues on appeal that the trial court erred by (I) refusing to admit into evidence father's deposition testimony; (II) ordering that M.L.H. retain his mother's surname; (III) requiring father to pay $17,000 for mother's attorney fees; and (IV) refusing to allow father more Christmas visitation time with M.L.H. and requiring father to return the child to mother's home by 7:30 p.m. Wednesday evenings during the school year. Mother contends for her appeal that the trial court erred by (A) awarding joint legal custody of M.L.H. to both parties; (B) limiting child support to $1,500 per month without expressly stating whether the court followed Rule 88.01 in its determination; and (C) overruling mother's motion to remove the guardian ad litem. Judgment is affirmed in part and reversed in part and the case is remanded with directions to enter an award of child support consistent with this opinion.

The parties to this appeal are the natural parents of M.L.H., who was born on January 28, 1987. Mother sued father to establish paternity, to acquire sole custody of M.L.H., to obtain child support from father, for payment of unreimbursed necessaries, and for attorney fees. Father initially denied paternity; however, after paternity was established, father admitted paternity and counterclaimed for joint legal and physical custody, equal division of the cost of rearing M.L.H., change of the child's surname, and visitation with M.L.H. three weekends a month of three days each, alternate holidays, and one continuous month in the summer.

The parties presented voluminous amounts of evidence at trial. The evidence established that mother is an attorney. Father earns approximately $108,000 per month, and mother earns $35,900 annually. Mother sought $4,000 per month in child support based on father's income.

Following introduction of the evidence, the trial court ordered joint legal custody of M.L.H. and limited father's participation in M.L.H.'s rearing to major decisions. The court also ordered that father shall have reasonable visitation rights with M.L.H., including but not limited to the following: alternate weekends; one evening visit per week beginning immediately after school until 7:30 p.m. during the school year and during the summer months from 5:00 p.m. until 8:00 p.m.; alternating holidays; and two fifteen-day periods, one in June and one in August of every year. The court refused to change M.L.H.'s surname, finding that such a change would not be in the child's best interest. The court awarded mother $1,500 per month in child support and required father to pay $17,000 for mother's attorney fees.

Father's Appeal

I. Father's Deposition

Father raises for his first point of error on appeal the trial court's refusal to accept father's deposition testimony into evidence. Father offered his deposition to the trial court as a formal offer of proof as evidence of his parenting skills and as proof that he is a good father.

This point is without merit. Introduction into evidence of father's deposition testimony by father would violate Rule 57.07. Rule 57.07(a)(3) specifically provides that "[t]he deposition of any witness who is not present in court may be used by any party for any purpose...." (emphasis added); see also Lawton v. Jewish Hosp. of St. Louis, 679 S.W.2d 370, 374 (Mo.App.1984). The rule provides that a witness' deposition may only be admitted into evidence if that witness is not present in court. ¹ In the present appeal, father was present in the courtroom, thereby precluding introduction of his deposition testimony. Id. Therefore, the trial court properly refused to admit father's deposition into evidence. Point I is denied.

II. Mother's Surname

Father next contends that the trial court erred by refusing to change M.L.H.'s surname to father's. Father argues that the trial court's decision is erroneous because the court did not apply the appropriate "best interests of the minor child" standard when it made the decision and because the decision is not supported by substantial evidence. Review of the record discloses that this point is also without merit.

Certain factors should be considered by the trial court when contemplating changing a minor's name. See R.K.-T.S. by V.T. v. R.S., 819 S.W.2d 749, 750 (Mo.App.1991). These factors include "the child's age, the potential embarrassment or discomfort the child would experience when his or her surname is different than the custodial parent, and how the name change will affect the child's relationship with his parents." Id. Applying these factors to the facts of this appeal demonstrates that the trial court's judgment is supported by substantial evidence. Id.

The evidence established that the child, born January 28, 1987, bore the name M.L.H. continuously from the date of his birth to the present date. The trial court received expert testimony that M.L.H. would suffer detrimental effects if his name were changed. The expert testified that changing the child's surname would cause the child to experience inconvenience and discomfort unnecessarily. Therefore, there is substantial evidence supporting the trial court's decision that retention of M.L.H.'s present surname is in the child's best interests. Father's second point is denied.

III. Mother's Attorney Fees

Father asserts for his third point on appeal that the trial court abused its discretion by requiring him to pay $17,000 for mother's attorney fees. Section 210.842, RSMo Supp.1990, expressly prescribes that the trial judge in paternity suits "may order reasonable fees for counsel ... to be paid by the parties in such proportions and at such times as determined by the trial court...."

In reviewing an award of attorney fees, appellate courts recognize that "[t]he trial court is vested with broad discretion in awarding attorneys' fees ... and only when that discretion is abused should it be overturned." Reed v. Reed, 775 S.W.2d 326, 330 (Mo.App.1989). A challenge to a trial judge's discretionary attorney fees' award is difficult to sustain because "[t]he trial judge is an expert on the reasonable value of legal services and is given wide latitude in the allocation of fees and costs." S.R. v. S.M.R., 709 S.W.2d 910, 916 (Mo.App.1986). Furthermore, "[t]he trial court's ruling concerning attorney's fees is presumptively correct." Brandt v. Brandt, 794 S.W.2d 672, 674 (Mo.App.1990). Thus, father must prove that the attorney fees' award is so arbitrary and unreasonable that it shocks this court's sense of justice and indicates a lack of careful consideration by the trial court. Potter v. Desloge, 658 S.W.2d 83, 85 (Mo.App.1983).

Father argues that the trial judge abused its discretion in awarding attorney fees for numerous reasons. Father contends that these reasons, individually and collectively, mandate a reversal of the award of attorney fees. First, father asserts that mother's primary goal was to obtain attorney fees for herself. This purpose, father asserts, is improper and should preclude the attorney fees' award. Assuming arguendo that such purpose is improper, father's argument identifies a single statement made by mother's attorney, takes the statement out of context, and attempts to distort its meaning. Review of the statement discloses that generation of attorney fees was not the primary goal of the litigation. Instead, the goals pursued by mother were those awarded in the trial court's order.

Father next asserts that on at least one occasion the fees were deliberately inflated. The trial judge is an expert in determining what are reasonable attorney fees. S.R. v. S.M.R., 709 S.W.2d at 916. The trial judge has the expertise and discretion to discern whether the requested fees were inflated. Mother requested attorney fees in the sum of $27,155.90. The trial judge awarded $17,000. Accordingly, this court can logically assume that any requested amount that may have been inflated was included in the unawarded portion of the fees. Flach v. Flach, 645 S.W.2d 718, 722 (Mo.App.1982).

Father also expostulates that the award of attorney fees was improper because mother, as a licensed attorney, should have performed work on her own...