Marriage of Kovach, In re
| Decision Date | 07 December 1993 |
| Docket Number | No. 62318,62318 |
| Citation | 873 S.W.2d 604 |
| Parties | In re MARRIAGE OF Margaret A. KOVACH and Ronald E. Kovach. Margaret A. KOVACH, Petitioner/Respondent, v. Ronald E. KOVACH, Respondent/Appellant. |
| Court | Missouri Court of Appeals |
Anthony L. Anderson, Anderson & Preuss, Clayton, for respondent/appellant.
Charles I. Ford, Steinberg, Crotzer & Ford, Clayton, for petitioner/respondent.
Husband appeals from a decree of dissolution of marriage. He challenges the trial court's award of retroactive child support, the division of marital property, the award of attorney's fees, and the valuation of marital assets. We affirm.
Ronald E. Kovach [husband] and Margaret A. Kovach [wife] were married on June 27, 1970. Four children were born of the marriage, all of whom were minors at the time of trial. Wife filed a petition for dissolution of marriage on April 12, 1990, and subsequently filed a first and second amended petition. Wife filed a motion for temporary child support on May 3, 1990, which was denied on April 1, 1991.
Husband successively employed five different attorneys prior to trial. After terminating his relationship with his fifth attorney, he disavowed the pretrial stipulations which that attorney had entered into. Although he eventually did not contest many of these issues at trial, wife's attorney was obliged to prepare for trial on these issues. Husband represented himself at trial, which commenced on April 7, 1992.
The trial court entered its Judgment and Decree dissolving the marriage on May 20, 1992. The court granted wife primary custody of the minor children, with reasonable visitation and temporary custody to husband. After calculating support in accordance with Rule 88.01, the court ordered husband to pay $254 per month as child support for the four minor children and $6096 for twenty-four months child support retroactive to the filing of the petition. The court divided the marital assets 60% to wife and 40% to husband. In dividing the marital property, the court awarded wife the marital home and husband 33 acres of land in Warren County. Husband was ordered to pay $3500 of the approximately $14,000 total attorney's fees incurred by wife.
For his first point husband asserts the trial court erred in awarding wife $6,046 [sic] for retroactive child support from the date of filing of the petition to the date of the decree. Husband argues the award was erroneous because 1) wife did not expressly pray for retroactive child support in her petition and 2) the failure of the trial court to award child support pendente lite barred a retroactive award of child support.
In her original dissolution petition filed April 12, 1990 and her first amended petition filed May 9, 1990, wife prayed for "reasonable child support" and "such other orders as may be just and proper." On May 3, 1990 wife filed a PDL motion alleging that the parties were separated and that she had custody of the children asking for temporary child support in the amount of $250 per month, as well as temporary maintenance. On April 1, 1991 the court entered a PDL order granting custody to wife with visitation to husband. The order further provided: "No child support ordered." In wife's pretrial submission, filed March 26, 1992, wife stated, "[Wife] also has requested that the child support be retroactive to the filing of the divorce petition and is entitled to such an amount." In wife's proposed "Judgment and Decree" attached to her pretrial submission, wife included a provision awarding her twenty-four months retroactive child support.
The case was tried on April 7, 1992. In its dissolution decree of May 20, 1992, the trial court ordered retroactive child support as follows:
15: Respondent is ordered to pay to Petitioner the sum of $6,096.00 as and for retroactive child support to the date of the filing of this petition in April of 1990, consisting of 24 months of retroactive child support. Said sum to be a judgment against Respondent in favor of Petitioner.
Husband argues that because there was no prayer for retroactive support in the petition or amended petitions and because the trial court denied temporary child support, the trial court was precluded from awarding retroactive child support. We disagree.
An award of retroactive child support is authorized by statute. Section 452.340 RSMo Supp.1990 provides:
1. In a proceeding for dissolution of marriage, legal separation or child support, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable or necessary for his support, including an award retroactive to the date of filing the petition, without regard to marital conduct, after considering all relevant factors including:
(1) The financial needs and resources of the child;
(2) The financial resources and needs of the parents;
(3) The standard of living the child would have enjoyed had the marriage not been dissolved;
(4) The physical and emotional condition of the child, and his educational needs.
This statute recognizes that a parent has a duty of support and gives the court the power to order a reasonable or necessary amount, after considering all relevant factors. Further this statute provides that an order to pay child support may include a retroactive award.
Wife argues that a prayer for child support includes a request for a retroactive award by implication and, alternatively, that husband did not object when she requested retroactive child support at trial and the issue was therefore tried by consent. We find the retroactive award was supported by the substantive allegations in the pleadings and the evidence.
It has been consistently held that under our contemporary form of code pleading, the prayer is not part of the petition and may be disregarded in determining what relief, if any, is authorized by the petition. Stafford v. McCarthy, 825 S.W.2d 650, 658 (Mo.App.1992) (). See also McMenamy v. Main, 686 S.W.2d 874, 876 (Mo.App.1985) and cases cited therein. If the relief granted is consistent with the allegations in the petition, the court is not circumscribed by the prayer. LaPresto v. LaPresto, 285 S.W.2d 568, 571 (Mo.1955) (). 1
In this case the pleadings supported an award of retroactive support. In her original and first amended petition, wife alleged as follows:
11. That Petitioner lacks sufficient property to provide for her reasonable needs and is unable to totally pay for the support of the minor children, while Respondent is financially capable of contributing to child support, maintenance and paying for Petitioner's attorney's fees and the costs of this action.
This paragraph was incorporated into her second amended petition. These allegations, which set out the spouses' respective abilities to pay child support as of the time of the filing of the petition, if proved, would support an award of child support from the time of the filing of the petition.
Two weeks before trial wife filed and served husband's then attorney with her pretrial submission in which wife stated she had requested retroactive child support. Further, wife testified at trial that she was still requesting retroactive child support. 2 Husband did not object to this question or answer. A party who represents himself is "bound by the same rules of evidence and procedure as those who are admitted to practice law, and they are held to the same familiarity with required procedures and rules as would be attributed to a member of the bar." Parker v. Wallace, 473 S.W.2d 767, 773 (Mo.App.1971).
At trial wife offered evidence to support an award of retroactive child support which was received without objection. Wife testified that the children had continuously resided with her in the family home and that husband had not provided her with any monies for her children or for the household since she filed the original petition. Husband himself admitted that he had not given any money to his family since October, 1990. There was substantial evidence in the record of husband's employment and income history over the entire marriage including the period after the petition for dissolution was filed from which the trial court could impute an income to husband. 3 There was also evidence of wife's employment and income. From these figures the court could compute child support under the guidelines. 4 Because the relief granted was consistent with the substantive allegations of the petition, was subsequently requested on the record, and was supported by the evidence, the trial court did not misapply the law in awarding retroactive child support, even if it was not specifically prayed for.
The fact that wife was denied child support in the PDL order does not preclude the trial court from awarding her retroactive support as part of the final decree. Section 452.340.1 RSMo Supp.1990 provides that the child support order may include an award of child support retroactive to the date the petition is filed. The purpose of a PDL order is to maintain the status quo pending final judgment. Cross v. Cross, 790 S.W.2d 928, 929 (Mo.App.1990). A PDL order and a decree of dissolution are independent orders. In re Marriage of Clark, 801 S.W.2d 496, 501 (Mo.App.1990). The PDL order stands on its own merits and is not relevant to a spouse's permanent needs for child support as provided for in the decree of dissolution. Id.; Cross, 790 S.W.2d at 929.
Husband argues wife's only remedy was to appeal the PDL order. Even if she had this option in this case prior to the entry of the decree of dissolution, she independently had the option of seeking retroactive child support as part of the permanent...
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