McCreary v. McCreary

• Decision Date: 19 August 1997
• Docket Number: No. WD,WD
• Parties: Rod Patrick McCREARY, Respondent, v. Juni Luann McCREARY, Appellant. 52469.
• Court: Missouri Court of Appeals

Page 433

954 S.W.2d 433

Rod Patrick McCREARY, Respondent, v. Juni Luann McCREARY, Appellant.

No. WD 52469.

Missouri Court of Appeals Western District.

Aug. 19, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Sept. 30, 1997.

Application to Transfer Denied

Nov. 25, 1997.

Harold A. Walther, Columbia, for Respondent.

Daniel J. Pingelton, Columbia, for Appellant.

Before HANNA, P.J., and ELLIS and EDWIN H. SMITH, JJ.

EDWIN H. SMITH, Judge.

On June 20, 1994, appellant, Juni L. McCreary, filed what she designated as a petition, which more accurately would be designated as a motion, requesting the Circuit Court of Boone County to: (1) modify its child support decree increasing child support and to require payments to be made directly to the Boone County Circuit Clerk as trustee; (2) order an accounting and enter a declaratory judgment with respect to claimed unpaid child support and maintenance calculated pursuant to the parties' "Amended Separation Agreement"; (3) modify maintenance; (4) order respondent, Rod P. McCreary, to reimburse her for unpaid medical expenses of the children; and, (5) modify respondent's visitation. Respondent filed a counter-motion, requesting the court to change physical custody of the couple's two minor children to him. The trial court granted respondent's motion for change of custody and entered an order requiring appellant to make monthly child support payments to respondent of $135.00 per child. ¹ The court denied appellant's motion in all respects, except for ordering respondent to pay her $7,256.91 in unpaid child support and maintenance and to make his maintenance payments to the Circuit Clerk of Boone County as trustee for appellant.

On appeal, appellant asserts six points of trial court error. Appellant claims that the trial court erred in: (1) changing physical custody of the minor children from her to respondent because the evidence was insufficient to support a finding that there was a substantial and continuing change in circumstances necessitating a change in custody; (2) failing to reopen the evidence after trial on respondent's motion to modify custody to consider testimony of the children regarding respondent's excessive drinking, abuse, and immoral behavior; (3) calculating the amount of child support and maintenance respondent was in arrears, because in doing so it misconstrued the parties' agreement governing the same; (4) failing to award her attorney's fees because the parties' agreement required a party in breach to be liable for attorney's fees, or in the alternative, because § 452.355.2 required it; (5) awarding respondent child support from appellant because he did not specifically request it in his counter-motion; and (6) failing to order respondent to reimburse appellant for medical expenses for the minor children as provided for by the parties' agreement.

We affirm in part and reverse and remand in part.

Facts

The marriage of appellant, Juni L. McCreary, and respondent, Rod P. McCreary, was dissolved in the Circuit Court of Boone County on October 20, 1987. The parties had entered into a written separation agreement, which was approved by the trial court and incorporated into its decree. Pursuant to the separation agreement, physical custody of the parties' two minor children, V.J.M., born April 6, 1980, and R.P.M., born September 16, 1983, was awarded to appellant with visitation to respondent. The court, pursuant to the separation agreement, ordered respondent to pay child support of $275.00 per month per child, maintenance of $150.00 per month, and to maintain medical insurance for the benefit of the children. The agreement also required respondent to convey his interest in the parties' jointly owned real property and mobile home located thereon to appellant, who was to assume all indebtedness related to the property.

In April of 1989, the court entered an order that made several modifications to the parties' original separation agreement. The order incorporated portions of a stipulation by the parties, which ordered that respondent's child support and maintenance obligations no longer had to be paid to the circuit clerk's office. Instead, by the terms of the parties' stipulation, the respondent's child support and maintenance obligations were to be paid to the creditor financing the mobile home on the property conveyed to appellant in the dissolution. The remainder of the stipulation, which was not incorporated into the court's order, stated that if the monthly total of the child support and maintenance obligation was less than the monthly amount due on the mobile home, appellant would be responsible for the difference. In the event she was unable to pay the difference, the respondent would, and this amount paid by respondent would be counted as a "credit" against the "aggregated balance" he owed.

The children lived with respondent in Indiana from June, 1992, to November, 1993, notwithstanding the custody decree in effect at the time, and without the consent of appellant. They were then returned to appellant's custody.

On June 20, 1994, appellant filed a motion to modify the parties' agreement. The motion contained the following counts: Count I requested an increase in child support and a termination of their agreement applying child support to the mobile home debt; Count II sought an accounting and declaratory judgment with respect to the mortgage debt and respondent's child support and maintenance obligations; Count III requested an increase in maintenance; Count IV sought reimbursement for certain medical expenses; and Count V requested a modification of visitation. Respondent filed an answer and counter-motion to modify custody.

On November 6, 1995, the trial court entered its findings of fact and conclusions of law, which transferred sole physical custody to respondent, based on a determination of change in circumstance with respect to appellant's work schedule and respondent's better ability to support the educational, emotional and supervisory needs of the children. The court also ordered appellant to make child support payments of $135.00 per month, per child. It found that respondent owed appellant $7,256.91 in unpaid maintenance and child support and that future maintenance payments should be made directly to appellant. The court denied appellant's claim for modification of child support and visitation, unpaid medical expenses and attorney's fees.

Appellant filed a motion to amend judgment and for the receipt of additional evidence on December 6, 1995. To it, she attached unsworn affidavits from the children and family members, which alleged, in part, physical abuse of the children by the respondent. The motion was heard on December 26, 1995, at which time the court appointed a guardian ad litem for the children and continued the motion. On January 8, 1996, the court heard respondent's motion for contempt and temporary custody. The children were not present at this hearing. The guardian ad litem testified that she could not determine whether the children were telling the truth in their allegations, and she had no opinion as to whether they should be called to testify. The court subsequently denied appellant's request to allow the children to testify and found that appellant had failed to turn the children over to respondent as required by the original change of custody order of November 6, 1995. Following the January 8 order, the children ran away from appellant. They were then located and transported to Indiana.

On January 11, 1996, the appellant filed a motion to stay order, and the guardian ad litem submitted a letter to the court stating that the parties' oldest child wished to be heard by the court. Appellant also filed a motion for an order directing parties to produce the children for an in camera hearing on February 8, 1996. Attached to the motion was the guardian ad litem's recommendation that the motion be granted. The court denied the motion to produce the children for testimony on February 20, 1996. Further, because the court did not rule on appellant's motion to amend of December 6, it became final on March 5, 1996. Appellant filed this appeal on March 12, 1996.

Standard of Review

Our standard of review in a judge-tried case is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We will affirm the judgment of the trial court, unless it is not supported by substantial evidence, or it is against the weight of the evidence or it erroneously declares or applies the law. Rogers v. Rogers, 923 S.W.2d 381, 383 (Mo.App.1996). "When there is conflicting evidence, the trial court has the discretion to determine the credibility of the witnesses, accepting or rejecting all, part, or none of the testimony it hears." Guier v. Guier, 918 S.W.2d 940, 946 (Mo.App.1996). "Because the trial court is in the best position to weigh all the evidence and render a judgment based on the evidence, the judgment is to be affirmed under any reasonable theory supported by the evidence." Id. We will view the evidence in the light most favorable to the decision of the trial court. Rogers, 923 S.W.2d at 383.

Discussion

I. Change of Custody

In appellant's first point, she claims that the evidence was insufficient for the trial court to find that a substantial and continuing change in circumstances had occurred necessitating a change in the physical custody of the parties' minor children from appellant to respondent. We agree.

Section 452.410.1 RSMo 1994, ² sets forth the standard which must be met for modifying a prior custody decree. It provides in pertinent part as follows:

... the court shall not modify a prior custody decree unless it has jurisdiction under the provisions of § 452.450 and it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that...