Newport v. Newport

• Decision Date: 06 October 1988
• Docket Number: No. 15426,15426
• Citation: 759 S.W.2d 630
• Parties: Mark Davis NEWPORT, Appellant, v. Vicki Lynn NEWPORT, Respondent.
• Court: Missouri Court of Appeals

Page 630

759 S.W.2d 630

Mark Davis NEWPORT, Appellant, v. Vicki Lynn NEWPORT, Respondent.

No. 15426.

Missouri Court of Appeals,

Southern District,

Division One.

Oct. 6, 1988.

Motion for Rehearing or Transfer to

Supreme Court Denied Oct. 28, 1988.

John S. Pratt, Pratt & Fossard, Springfield, for appellant.

C. Ronald Baird, David A. Fielder, Dorr, Baird and Lightner, P.C., Springfield, for respondent.

HOLSTEIN, Chief Judge.

Appellant Mark Davis Newport and respondent Vicki Lynn Newport were divorced by a decree of the Circuit Court of Greene County entered September 3, 1987. Mark appeals claiming seven different points of error in which he asserts the trial court abused its discretion in (1) awarding excessive maintenance, (2) failing to establish a termination date for periodic maintenance, (3) awarding excessive attorneys' fees and suit fees, (4) awarding paralegal expenses and fees, (5) ordering appellant to pay for the college education of the children, (6) ordering Mark to maintain a $100,000 life insurance policy for the benefit of the children, and (7) ordering Mark to pay all medical and dental expenses for the children.

The decree will be sustained unless the record reveals no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Colabianchi v. Colabianchi, 646 S.W.2d 61, 62 (Mo. banc 1983). The trial court has broad discretion in determining the amount of maintenance and child support. Colabianchi v. Colabianchi, supra, at 66. The award of attorneys' fees and costs, after consideration of all relevant factors, is also within the sound discretion of the trial court. Costley v. Costley, 717 S.W.2d 540, 545 (Mo.App.1986). Consequently, the trial court's orders regarding costs and attorneys' fees, maintenance, and child support will not be disturbed unless there is a manifest abuse of discretion.

MOTION TO DISMISS THE APPEAL

Before reaching the merits of the appeal, we consider Vicki's motion to dismiss the appeal. She asserts, by way of affidavit, that appellant has voluntarily made maintenance payments of $3,000 per month as provided in the decree since the time of the dissolution. She cites Kinser v. Elkadi, 654 S.W.2d 901, 903 (Mo. banc 1983) and Missouri Highway & Transportation Comm'n. v. Chadwell, 735 S.W.2d 96, 98 (Mo.App.1987) for the proposition that when a party voluntarily pays a judgment rendered against him, he may not appeal from that judgment. We note Vicki's affidavit falls short of declaring that the judgment for both present and future maintenance payments has been satisfied. While Mark may have waived any complaint as to maintenance payments paid since the entry of the decree by paying those amounts, he has certainly not waived his right to appeal as to future payments. Consequently, Vicki's motion to

dismiss the appeal as to those portions of Mark's brief which question the award and amount of her maintenance is overruled.

FACTS

The parties were married June 29, 1971, and lived together until their separation in October of 1985. Vicki was a college graduate at the time of the marriage. Mark continued his education during the first years of the marriage. He first attended Baylor University, graduating in 1971 shortly after the marriage of the parties. He then attended Southwest Baptist Theological Seminary for a year, after which he returned to Baylor University to complete premed courses. Mark graduated from the University of Missouri Medical School in 1977. He completed internship and began a residency in orthopedic surgery in Temple, Texas, and then switched specialties. Since 1980 he has been employed as an emergency room physician.

Mark's current employment is with a group of physicians called Trauma Physicians Association of Springfield, Inc. (hereafter "TPA"). Mark is a shareholder in that venture. TPA has a contract with St. John's Regional Medical Center under which it provides physicians for the hospital emergency facility.

Vicki was employed during the first several years of the marriage. Her employment included teaching school in Springfield, Missouri, Kennendale, Texas, Waco, Texas, and Columbia, Missouri. She also worked in a jewelry store and as a ward clerk in an emergency room while the couple lived in Columbia. Although Mark's father assisted with tuition, books, and auto expense prior to Mark entering the internship in 1977, the couple's primary support was earned by Vicki. Vicki continued to work for a time after Mark finished medical school, working at a day-care center, doing baby-sitting jobs, performing book research, and substitute teaching.

The parties are the parents of two boys, the first born on January 2, 1981, and the second born March 23, 1985. Since the birth of the children, Vicki has not worked. The couple reached a mutual decision that Vicki would stay in the home after the children were born.

From Vicki's perspective, the marriage began to erode while Mark was still in medical school. During that time, Mark developed a drinking problem and would stay away from home all night without explanation. These were the first signs of a change in Mark's moral and economic values. More recently, Mark became involved with a female companion who Mark met at a racquetball tournament. Both before and after the separation Mark spent substantial sums on travel expenses for he and his companion, as well as on gifts for her. At the time of trial, his female companion had moved to Springfield where Mark found her an apartment in the same complex in which he was living.

Mark admits that at one time he had problems in dealing with alcoholic beverages, but denies that was the immediate cause of the couple's problems. He complains that their problems stem from Vicki's frequent unwillingness to engage in sexual relations and her refusal to participate in any sexual relations following the conception of the second child. Mark also asserts that after the birth of the first child, Vicki permitted him to sleep in the bed between the couple, further inhibiting a sexual relationship. Mark complains that Vicki had centered so much of her attention on the children that she refused to hire a baby-sitter so the couple could go out socially and that Vicki was unwilling to travel with Mark on his numerous out-of-town trips for sports activities without the children.

Just as Mark denies that his relationship with his female companion was romantic prior to the separation, Vicki denies that she ever withdrew sexual relations from her husband and, in fact, Mark participated in permitting the children to sleep with them by refusing to take the older child to his own bed when she had requested Mark do so. Under Rule 73.01(c)(2), ¹ we defer to The marital assets of the parties include the family residence, household furnishings, automobiles, the TPA stock, Mark's retirement plan with TPA, and a checking account. The court awarded Mark marital assets, including the TPA stock, his automobile and the retirement plan with TPA, as well as the checking account and specific personal property, having a value of approximately $85,000 and ordered him to pay debts totaling $36,141. The court awarded Vicki marital property, including the family home and her automobile, which had a total value of approximately $184,000. She was ordered to pay the debt secured by the home and the automobile which she received, totaling $132,608.38.

the trial court's superior ability to judge credibility of the witnesses. To the extent that it is necessary to do so to support the trial court's judgment, we accept Vicki's testimony. Her testimony is supported by letters written by Mark in which he admits that "much of the problem is mine."

Mark's adjusted gross income from 1982 through 1986 ranged between $99,101 and $108,615. Mark claimed monthly living expenses at the time of the dissolution in the sum of about $3,800 and anticipated expenses of approximately $4,500 monthly. Among the expenses he claims are health insurance premiums, a $50,000 life insurance premium, continuing education benefits, and payments on Vicki's car.

Vicki's evidence indicated that her expenses, exclusive of expenses of the two children, amount to about $2,400. In addition, she claimed other expenses for herself and the children exceeding $2,000.

On this evidence, the court awarded Vicki $500 per month per child as child support and $3,000 per month in periodic maintenance. In addition, the trial court awarded attorneys' fees in the sum of $8,000, deposition costs in the sum of $329.60, expert fees of a CPA in the amount of $1,500, and a real estate appraiser in the sum of $175. Following the filing of the notice of appeal, the trial court entered an order sustaining a motion for attorneys' fees on appeal and ordering Mark to pay an additional $3,000 in attorneys' fees. The parties' attorneys have filed excellent and informative briefs covering the seven points previously noted.

THE AWARD OF SEPARATE MAINTENANCE

In his first point, Mark complains that the trial court should not have awarded any maintenance to Vicki. He concedes that the property Vicki received was insufficient to see to her reasonable needs. However, he argues that there is the additional requirement that Vicki prove she was either unable to support herself through appropriate employment or was the custodian of children whose condition or circumstances render it appropriate that the custodian not be required to seek employment outside the home. § 452.335.1(2). Mark reminds us that this emphasis in the law encourages self-sufficiency. He argues that there is nothing special about the condition and circumstances of these children which requires Vicki's presence at home, that there are many capable childcare alternatives available, and that any agreement which may have been reached by the parties that Vicki stay in the family home while the children were young does not...