McCullough v. McCullough, s. 32251
| Decision Date | 19 April 1966 |
| Docket Number | Nos. 32251,32252,s. 32251 |
| Parties | Dorothy Janice McCULLOUGH, Plaintiff-Respondent, v. Lawrence Neil McCULLOUGH, Jr., Defendant-Appellant. Dorothy Janice McCULLOUGH, Plaintiff-Appellant, v. Lawrence Neil McCULLOUGH, Jr., Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Schneider, Sumner, Hanlon, & Boyle, John F. Hanlon, Clayton, for plaintiff-appellant-respondent Dorothy Janic McCullough.
Tremayne, Joaquin, Lay & Carr, Kenneth S. Lay, Clayton, for defendant-appellant-respondent Lawrence Neil McCullough, Jr.
In cause No. 32,252, plaintiff, Dorothy Janice McCullough has appealed from a judgment for defendant in an action to increase the allowance to her for child support previously awarded in a divorce action. The appeal in cause No. 32,251 is by Lawrence Neil McCullough, defendant in said action, from an award to plaintiff of attorney's fees in said suit. The appeals were consolidated for hearing in this Court.
The divorce suit was filed on April 26, 1957, and the decree rendered June 28, 1957. Prior to the trial, plaintiff and defendant entered into an agreement with respect to their property rights, alimony, custody of the children born of the marriage and the allowance for child support, all subject to the approval of the Court. The parts material to the issues on this appeal are as follows:
In the decree, the Court found plaintiff was the innocent and injured party and entitled to the relief prayed for in her petition. It dissolved the bonds of matrimony existing between the parties and granted plaintiff the custody of the two children born of the marriage. It provided for temporary custody and visitation rights in defendant in the manner specified in the stipulation, also alimony and support money for the children in the amounts stipulated, said decree reading as follows:
(The stipulation is then set out in full as a part of the decree.)
Thereafter, and on September 16, 1964, the decree was, upon stipulation of the parties, modified by the following order.
'Stipulation for Modification of Judgment and Decree filed and pursuant thereto judgment and decree of June 28, 1957 amended as follows:
'Plaintiff permitted to take the minor children of the parties, Lawrence Neil McCullough, III, and Carol Adams McCullough to the vicinity of Wilmette, Illinois, and there to have said children in her custody and under her control subject to the visitation and temporary custody rights granted to defendant in the decree of this Court entered in this cause June 28, 1957.'
On October 30, 1964, plaintiff filed the present motion to modify. In said motion, plaintiff sought an increase in child support to $300 per month for each child, for costs and a reasonable attorney's fee for the prosecution of said action. The grounds alleged were: (1) substantial increase in the cost of living since the date of the original decree; (2) increase in the necessary expenditures for food, clothing, educational needs and social activities since the date of the original decree; (3) improvement in defendant's financial condition.
At the time of the hearing, plaintiff was residing with the two children at Wilmette, Illinois. Her son, Lawrence Neil McCullough, III, was eight years old at the time of the divorce, and sixteen years of age a the time of the hearing, (March 3, 1965). The daughter, Carol, was four years old when the divorce was granted, and eleven years of age at the time of the hearing. The son attends high school and the daughter is in the sixth grade. No evidence was offered as to how much was needed for the support of each child as of the time of the divorce, nor was there any evidence adduced to show the total amount needed for their support at the time of the hearing. However, plaintiff testified that the expense for the support of the children had increased since the divorce. In her testimony, she stated the monthly increase was as follows:
For son, Lawrence
Cost of living .................................................... $ 15.00
Food ................................................................ 25.00
Clothing ............................................................ 15.00
Books ............................................................... 10.00
School supplies such as gym outfits "and everything that is
required for high school boys at this age, his bus fare, lunch
and allowance" .................................................... $ 35.00
(Plaintiff stated that at the time of the divorce, they lived
a block from school, and for the reason there was no bus
fare, and no lunch money to be provided for the reason he
came home for lunch. She also stated his allowance at the
time of the divorce was less than at present.)
Additional insurance beginning June 1, 1965 when son starts
driving automobile .................................................. 12.50
Music lessons ........................................................ 7.50
Guitar lessons ...................................................... 10.00
-------
Total Monthly increase for Lawrence ........................ $130.00
For daughter, Carol
Cost of living ........................................ $ 15.00
Clothing ................................................ 15.00
Food .................................................... 25.00
Lunches and allowance including Girl Scouts and Club .... 15.00
Books and supplies ....................................... 5.00
Eye glasses, dental bills and Social activities ......... 25.00
-------
Total monthly increase for Carol ................ $100.00
It does not appear what the general increase in the cost of living of $15.00 per month includes; whether the items of food, clothing etc., generally regarded as an element in the cost of living, or items not listed or both. Plaintiff was not cross-examined by defendant's counsel.
Plaintiff is not employed and has not been employed since the divorce. She testified she had no income other then what she receives as alimony and child support. She further stated she lives in an apartment with her two children.
Interrogatories propounded by plaintiff and defendant's answers thereto were admitted in evidence. The answers contain information with respect to defendant's income, both gross and net...
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