Monsees v. Monsees, WD
| Decision Date | 12 September 1995 |
| Docket Number | No. WD,WD |
| Citation | 908 S.W.2d 812 |
| Parties | 104 Ed. Law Rep. 920 Nancy MONSEES, Respondent, v. Anthony B. MONSEES, Sr., Appellant. 49788. |
| Court | Missouri Court of Appeals |
Betty K. Wilson, Columbia, for respondent.
Michael P. Riley, Michael Smith, Jefferson City, for appellant.
Before LAURA DENVIR STITH, P.J., and LOWENSTEIN and HANNA, JJ.
This is an appeal from a dissolution of marriage action. The appeal focuses specifically on the division of marital property, custody, child support and maintenance. Two children were born of the marriage, one fully emancipated, the other, Anthony, was born on July 12, 1974. Anthony lives on campus as a student at the University of Missouri. He turned twenty-one just before oral argument. The parties will be referred to as Husband and Wife. Wife has appealed and Husband has cross-appealed.
Wife received a bachelor of science degree in education in 1970. She also attended a community college program for court reporting for 2 1/2 years but did not finish. During the 25-year marriage Wife was primarily a homemaker. She worked for 2 1/2 years at Husband's real estate business decorating newly constructed homes and providing secretarial services to his business. She also worked several months in an exercise shop. During the last 18 years of the 25 year marriage, Wife was in and out of several hospitals seeking treatment for depression and alcoholism. She is taking several medications, including Prozac and Tegretol, and has had trouble seeking and maintaining employment. Wife currently resides in Columbia where she moved when the parties separated.
Husband owns a real estate business that employs several independent contractors. In addition, he owns an interest in ten other businesses. The trial court concluded that the combined negative equity of these interests is $279,344.
The trial court awarded the property as follows:
Husband
Household Goods $ 5,700
Insurance Policies $ 8,012
Car $13,500
Bank Account $ 3,500
TOTAL $30,712
Husband was also awarded all the interest in his business ventures and its debt, some real estate in Pettis County, and additional marital debt of $47,365.
Wife
Household Goods $18,430
Life Insurance $ 2,500
Car $ 9,800
Bank Accounts $ 40
$ 75
$ 200
TOTAL $31,045
In addition, Wife was awarded $2,000 per month permanent maintenance, the trial court specifically finding that Husband's income reflected by his Property and Income Statement was not a true measure of either his income or his ability to earn. Husband also agreed to hold Wife harmless for all business ventures awarded to Husband.
Wife appealed, claiming that the division of marital property was an abuse of the trial court's discretion. Husband's cross-appeal raises issues on the custody award and maintenance. The reviewing court in a dissolution case must sustain the decree unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
Wife cites several factors that she contends were not considered in the division of property: the conduct of the parties, economic circumstances, the individual contributions to the acquisition of marital assets, and the distribution of all the income-producing property to Husband. The trial court has a great amount of flexibility in dividing marital property. Stottlemyre v. Stottlemyre, 877 S.W.2d 176 (Mo.App.1994). There is no rigid formula setting forth the weight to be given each relevant factor contained in § 452.330.1, RSMo 1994. Id. Furthermore, it is presumed that the trial court considered all of the evidence in dividing the marital property. Id. There was evidence in the record concerning all of the factors that Wife claims the trial court failed to consider. The court will assume the trial court considered all relevant evidence in making its division of property. The court discerns no abuse in this portion of the decree, and that portion is affirmed.
Husband, in his cross-appeal, claims that the award of custody of the son is vague and unenforceable in that it does not specify joint legal or joint physical custody, and that the trial court did not include a specific written plan setting forth the terms of physical custody and visitation. The relevant portion of the decree specifically states,
According to § 452.340.3, RSMo 1994, child support payments must continue until the child dies or: 1) marries; 2) enters active military duty; 3) becomes self-supporting; or 4) reaches the age of 18. However, if the child enrolls in a vocational or higher education institution no later than the first day of October following graduation from a secondary school, the parent's child support obligation continues until the child completes his education or reaches the age of 22, whichever occurs first. § 452.340.5, RSMo 1994. While it would seem that a detailed custody order in this situation would be somewhat futile since the twenty-one year old is currently living at the University and will probably never return to live at home, Missouri case law requires a finding of custody. In Rich v. Rich, 871 S.W.2d 618 (Mo.App.1994), a similar situation was presented. In that case, the trial court refused to enter any custody award at all because the child was over the age of 18 and attending college. Child support payments, however, were ordered since the child was still in school. The trial court in Rich essentially found that the eighteen-year-old child was emancipated for purposes of the child custody, but not for purposes of support. The Appeals court found these findings inconsistent and contradictory. Id. at 625. It is mandatory for a trial court in a dissolution case to provide for the custody of a minor dependent child. Id. at 624-25. The rationale of Rich is not diluted by the fact the child there turned twenty-two during the appeal, making the appeal moot. Id. at 625.
The issue presented in the case at bar is whether or not the custody order that was entered by the trial court is sufficient. Generally, custody must be given to one parent or the other, absent unfitness of both. Cradic v. Cradic, 544 S.W.2d 605, 607 (Mo.App.1976). The trial court must state whether the award of custody is joint legal or joint physical, and if it is joint legal, one parent must be given the award of custody. It is recognized that because the child is in college, this situation does not fit squarely into the policies for custody awards. However, custody must rest with someone as the son is still a dependent and is still not emancipated. There is no contention in this appeal that the son is emancipated. Zalmanoff v. Zalmanoff, 862 S.W.2d 941, 944-46 (Mo.App.1993); Sutton v. Schwartz, 860 S.W.2d 833, 835 (Mo.App.1993). There is no model custody plan that fits in all situations. O.J.G. v. G.W.G., 770 S.W.2d 372, 376 (Mo.App.1989). In setting forth the custody plan, a case by case approach should be utilized "to determine the best interest of the child and to tailor the plan to meet that interest." Id. The court feels it is superfluous to require decrees in factual situations such as this where the person for whom support is being ordered is now twenty-one, attending college, and really not in need of living arrangements with a parent; however, barring some pronouncement by the legislature, the court refuses to allow merely a decree of joint custody, without a denomination of physical custody. The factual situation here points to the dilemma a trial court is put to: § 452.340.3(4) requires support until the child reaches eighteen, while .5 of the statute extends the time for support to continue until the child reaches twenty-two.
Under the present state of the law, a physical custody award is further justified since it may be necessary to determine which parent would be responsible for expenses not covered by the payments of the non-custodial parent. In re Marriage of Julian, 868 S.W.2d 182, 186 (Mo.App.1994). On remand, the court should make such a finding.
Husband's next point addresses the lack of specificity in the child support award in that there is no payor spouse designated, there was no evidence regarding the cost of the tuition to be paid, and there was no finding by the trial court that the Form 14 amount of child support was unjust and unreasonable, thereby allowing deviation from the presumed amount. The decree simply states, "Minor son to be provided with reasonable tuition, room and board to attend the University of Missouri at Columbia, or an institution of higher learning comparable to the same as to costs."
Rule 88.01(e) provides that the trial court is to presume that the Form 14 amount of child support is correct, unless evidence provides otherwise. To rebut the amount of child support indicated on the Form 14 amount, "It is sufficient ... if the court ... enters in the case a written finding or a specific finding on the record that the amount so calculated, after consideration of all relevant factors, is unjust or inappropriate." Rule 88.01(e) (). "The rule is clear in its mandate that the trial court not deviate from a Form 14 calculation unless it finds, on the...
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