Morton v. Myers

• Decision Date: 27 June 2000
• Parties: (Mo.App. W.D. 2000) Patricia Ann (Myers) Morton, Respondent, v. Terry William Myers, Appellant. WD57041 0
• Court: Missouri Court of Appeals

21 S.W.3d 99 (Mo.App. W.D. 2000)

Patricia Ann (Myers) Morton, Respondent, v. Terry William Myers, Appellant.

WD57041

Missouri Court of Appeals Western District

06/27/2000

Appeal From: Circuit Court of Platte County, Hon. James Walter Van Amburg

Counsel for Appellant: Sandra P. Ferguson

Counsel for Respondent: Michael J. Svetlic

Opinion Summary: The father appeals the trial court's decision to sustain the mother's motion to modify the amount of child support payable by him. The father argues that because the mother effectively denied him visitation with their daughter and failed to provide him with medical information and information about her attendance at and grades in college, his obligation to continue to pay child support should have abated. He also argues that the court failed to consider his daughter's income in arriving at the amount of his child support obligation and failed to specifically determine the credit to which he was entitled toward his child support obligation for extra support previously paid to the mother. He also objects to the award of attorney's fees to the mother.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

Division Two holds:

The evidence supports the trial court's conclusion that the mother did not improperly interfere with the father's visitation rights. The mother complied with all ordered visitation during the time their daughter was under 18 years old, and cannot be found to have violated the order of visitation merely by being affectionate to her daughter or by correctly informing the daughter that once she reached 18 years of age, it would be her decision regarding whether or how much to visit with her father. The record showed that the relationship between the father and his daughter deteriorated due to problems unrelated to the mother, and as a result, the daughter decided to avoid visiting with the father. The mother cannot be held responsible for this decision.

The failure to provide the father with notice of educational information as required under section 452.340.5 precluded the daughter from being entitled to support for the semesters during which the required statutory notice was not provided. Although notice of a letter from the university verifying the daughter's enrollment was sufficient to support an award of child support for her first semester in college, section 462.340.5 required more than what was provided for the following two semesters -- a handwritten note setting out the daughter's classes and grades and a belated notice of continued enrollment. The statute in effect at that time required that notice be provided via a transcript from the institution stating for the previous semester(s): (1) the courses enrolled in; (2) the courses completed for each semester; (3) the grades and credits received for each completed course; and a transcript from the institution listing for the upcoming semester: (1) the courses enrolled in and (2) the number of credits for each course. Thus, during the period that such notice was required but not received by the father, his obligation to pay child support abated for that period. Because of a similar failure to provide adequate information about the Fall 1998 semester, child support was also not due for that semester. In addition, the trial court was insufficiently specific in delineating the amount of the credit due for child support payments made in 1998. On remand the trial court must recalculate the credit. This Court finds no error in the trial court's treatment of the daughter's earnings in arriving at the amount of the father's child support obligation. In view of the child support lawfully ordered below, this Court cannot say that the court's allocation of $20 per month to cover college expenses and not otherwise reducing daughter's support by the amounts she earned working to provide herself with spending money during school was an abuse of discretion.

Finally, the court did not abuse its discretion when it ordered the father to pay a certain amount of the mother's attorney's fees. The mother was in a worse financial situation than the father and was not responsible for her daughter's refusal to visit him. She also had been recently diagnosed with Systemic Lupus, is totally disabled, and, consequently, is receiving Social Security benefits. Thus, while this Court disallowed part of the mother's claim because she failed to properly give notice as to classes and grades, other aspects of her claim were proper, and it was within the discretion of the trial court, in considering all relevant statutory factors, to determine that the mother was entitled to attorney's fees.

Laura Denvir Stith, Presiding Judge

Appellant Terry William Myers ("Father") appeals the trial court's judgment sustaining Patricia Ann (Myers) Morton's ("Mother") motion to modify the amount of child support payable by him. Father argues that because Mother effectively denied him visitation with their daughter, Andrea Nicole Myers, and failed to provide him with medical information and information about her attendance at and grades in college, his obligation to continue to pay child support should have abated. He also argues that the court failed to consider his daughter's income in arriving at the amount of his child support obligation and failed to specifically determine the credit to which he was entitled toward his obligation for extra support previously paid to Mother. He also objects to the award of attorney's fees to Mother.

We find the evidence supports the trial court's conclusion that Mother did not improperly interfere with Father's visitation rights, and that the court did not err in its treatment of his daughter's earnings or in the award of attorney's fees. We also find, however, that his daughter's failure to provide him with notice of educational information as required under Section 452.340.5 precluded his daughter from being entitled to support for the semesters during which such necessary statutory notice was not provided. We also find the trial court was insufficiently specific in delineating the amount of the credit due Father for support payments made in 1998, and that, as a result of our holdings herein that Father was not obligated to pay support during Andrea's Winter/Spring and Fall 1998 semesters, the trial court must recalculate the credit to which Father is entitled. For all of these reasons, we affirm in part and reverse in part and remand to the trial court for further proceedings consistent with this opinion.

I. STATEMENT OF FACTS

On September 3, 1981, the marriage between Father and Mother was dissolved. In the original decree of dissolution, Mother was given primary physical custody of Andrea, the only child of the parties, who had been born on May 24, 1979. Father was given visitation rights and was ordered to pay child support in the amount of $420.00 per month.

Over the ensuing years, the original dissolution decree was modified on two occasions in respects not relevant here. In addition, although the original and modified decrees required that child support be paid through the Clerk of the Court, since the dissolution, with Mother's consent, Father has paid the support directly to Mother. On January 1, 1996, Father voluntarily increased the amount of support he paid to Mother to $500.00 per month. At trial, Mother testified that she had no intention of denying Father credit for the additional support he had paid.

Andrea turned 18 on May 24, 1997. She graduated from high school a month later and registered to attend college at the University of Missouri at Kansas City (UMKC). Beginning in November 1997, and continuing until April 1998, Father stopped paying child support for Andrea. He told Mother that he had done so because, although Mother had orally told him that Andrea would be attending college in the fall, he had not been furnished with written enrollment verification regarding Andrea's attendance at UMKC. Mother claimed that she had sent Father a copy of a letter from UMKC dated July 21, 1997, certifying that Andrea was enrolled as a full-time student for the Fall 1997 semester (although, since this was prior to registration, the letter could not list any specific courses). As a result of this standoff, on January 9, 1998, Mother filed a motion for modification and contempt, requesting that the amount of support be increased and that Father be held in contempt for failing to make child support payments.

Father filed an answer stating that he had written support checks for the months from November 1997 onward, but was holding them because Mother had failed to provide him with the notice required by Section 452.340.5 as to what classes Andrea was taking and her grades in those classes. He introduced into evidence four letters, dated October 15, 1997, October 31, 1997, November 15, 1997, and March 16, 1998, each of which was a request from him to Mother for information about Andrea's schooling. Mother did receive the letters. Father says that the first time he received a written response regarding Andrea's enrollment was via fax on April 16, 1998. Only after he received the April 16, 1998 fax, and after he was placed under threat of garnishment for refusal to pay court-ordered child support, did Father release the support checks covering the period of November 1997 to April 1998, paying them directly to Mother.

Mother denied that she had failed to keep Father informed about Andrea's schooling. She claims that she had forwarded to him UMKC's July 21, 1997 letter confirming Andrea's enrollment, and claims that she forwarded all other correspondence she received from UMKC to Father. Mother claims that in March 1998 she also sent Father a handwritten note which listed the courses Andrea had taken in the Fall 1997 semester, the grades she had received and her grade point average. Father claims, however, that this note was not received until it was faxed to his attorney on April 16,...