Nichelson ex rel. Lohrasbi v. Roberts

• Citation: 164 S.W.3d 179
• Decision Date: 07 June 2005
• Docket Number: No. ED 84657.,ED 84657.
• Parties: Jonah Edward NICHELSON, a Minor, by Marilyn Jeanne LOHRASBI, Next Friend, and Marilyn Jeanne Lohrasbi, Individually, Petitioners/Respondents, v. Troy Eugene ROBERTS, Respondent/Appellant.
• Court: Missouri Supreme Court

Page 179

164 S.W.3d 179

Jonah Edward NICHELSON, a Minor, by Marilyn Jeanne LOHRASBI, Next Friend, and Marilyn Jeanne Lohrasbi, Individually, Petitioners/Respondents, v. Troy Eugene ROBERTS, Respondent/Appellant.

No. ED 84657.

Missouri Court of Appeals, Eastern District, Division One.

June 7, 2005.

Susan Kreher Roach, Clayton, MO, for Appellant.

Jonah Edward Nickelson, O'Fallom, pro se.

Marilyn Lohrasbi, O'Fallon, MO, for Respondent.

SHERRI B. SULLIVAN, J.

Introduction

Troy Eugene Roberts (Father) appeals from a trial court judgment denying his Motion to Modify an amended paternity judgment (Paternity Judgment) and ordering him to pay to Marilyn Jeanne Lohrasbi (Mother) a portion of her attorney's fees. Father alleges the trial court erred in not modifying the amount of child support he was ordered to pay to Mother under the Paternity Judgment and in ordering Father to pay to Mother a portion of her attorney's fees. We reverse and remand in part and affirm in part.

Factual and Procedural Background

On December 18, 2002, at trial on a paternity action regarding Jonah Edward Nichelson (Child), Father introduced a Notice and Finding of Financial Responsibility, dated December 17, 2002, and issued by the Division of Child Support Enforcement (DCSE), advising Father that, effective January 15, 2003, he would be required to pay $1,404 per month for the support of two children. The notice specifically stated that it was not an "order" and advised Father as to how he might challenge its finding of financial responsibility.¹ Father did not inform the trial court that on December 17, 2002, Father also signed an administrative consent order, issued by the DCSE, obligating himself, effective January 15, 2003, to pay $1,404 per month for the support of two children.

On January 6, 2003, the trial court entered the Paternity Judgment declaring Father to be the natural father of Child. The Paternity judgment awarded Mother sole legal and physical custody of Child. The Paternity Judgment ordered Father to pay to Mother $760 in monthly child support, as well as amounts for reimbursement of necessaries, attorney's fees, and guardian ad litem fees.² Relying on the Notice and Finding of Financial Responsibility, the trial court found in the Paternity Judgment that "Father has one, possibly two other children, but they are not in his actual custody and he has not been ordered to pay child support for either of them." Thus, the court did not calculate the Form 14 in the paternity action using a Line 2a adjustment³ for Father.

On June 5, 2003, Father filed a Motion to Modify the Paternity Judgment, requesting, among other things, a modification in the amount of ordered child support. Father alleged the following substantial and continuing change of circumstances required modification:

That [Father] is providing support for two other minor children and the [Paternity Judgment] did not take into consideration at that time payments by [Father] for child support for two other minor children in computing child support payments regarding [Child].

At the hearing on the motion, Father introduced the administrative consent order issued by the DCSE that had been filed with the Circuit Clerk of St. Louis County on January 21, 2003, obligating Father to pay $1,404 per month for the support of two children. Also, Father testified that he was represented by counsel at the paternity action and that he believed that the administrative consent order was not brought to the trial court's attention at the paternity action because it was not final yet.

On June 24, 2003, Mother filed a cross-motion for contempt arguing that Father had willfully and contumaciously failed to pay the child support, reimbursement of necessaries, attorney's fees, and guardian ad litem fees ordered under the Paternity Judgment.

The trial court entered a judgment denying Father's Motion to Modify, as well as Mother's cross-motion for contempt. In its judgment, the trial court found that had Father informed the trial court at the paternity action that he had signed the administrative consent order on December 17, 2002, "the Court would have been required to give Father a $1,404 credit, the very credit that he now seeks, on Line 2a of its Form 14. The credit allowed on Line 2a of Form 14 applies to both court and `administrative' orders." The trial court also found unpersuasive Father's argument that the administrative consent order of December 17, 2002 was not really an "order" until it was filed with the Circuit Clerk of St. Louis County on January 21, 2003. In denying Father's Motion to Modify, the trial court concluded:

The Court was aware, at the time of the original trial, of Father's impending child support obligation for his two other children. Father was only denied the Line 2a credit, because he led the Court to believe that he was not yet obligated to support those children. This Father did, knowing full well a consent administrative child support order had already been entered and would indeed go into effect on January 15, 2003. Essentially, Father argues that, on the basis of facts that existed at the time of the original trial, the Court should now modify his child support obligation. With Father having withheld from the Court the very order he now relies upon to support his motion to modify, the Court finds no `change in circumstances' sufficient to support a modification of the original child support award.

The judgment also ordered Father to pay to Mother $7,500 for a portion of her attorney's fees. The trial court noted that the incomes of the parties are almost identical and both parties have working spouses and neither party was the "prevailing party." Regarding the award of attorney's fees, the court found Relying upon Section 452.355.2, RSMo, Mother seeks reasonable attorney's fees and costs. Undoubtedly, Mother's cross-motion for contempt `encouraged' Father, in July 2003, to consent to the transfer of $2,705.00 from his lawyer's trust account to the Family Support Payment Center. Similarly, Father's consent, in September 2003, to the transfer of over $10,000 from his retirement savings plan to satisfy the necessaries judgment mooted a major portion of Mother's cross-motion for contempt. The major goal of Mother's cross-motion for contempt having thus been accomplished, her litigation expenses should have been greatly reduced.

Mother has, however, been required to continue defending Father's motion to decrease child support. For the reasons set forth above, the Court finds that Mother's attorney's fees were unnecessarily increased by Father's actions in pursuing a motion of questionable merit.

Father appeals from the judgment denying his Motion to Modify.

Standard of Review

Our review of a judgment on a motion to modify is governed by the principles enunciated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Rustemeyer v. Rustemeyer, 148 S.W.3d 867, 870 (Mo.App. E.D.2004). We will affirm the judgment of the trial court unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32.

Discussion

Father raises three points on appeal.⁴ In his first point, Father argues that the trial court erred in not considering the administrative consent order to determine whether Father met his burden of proving a substantial and continuing change of circumstances since entry of the Paternity Judgment.

The provisions of any judgment respecting child support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable. Section 452.370.⁵

In the Paternity Judgment, the trial court specifically stated that Father had not been ordered to pay child support for two other children. At the hearing on the Motion to Modify, Father introduced an order obligating him to pay child support for two other children. As the trial court stated in its judgment denying the Motion to Modify, had Father been ordered to pay child support for two other children, as he now is obligated to do, the court would be required to calculate child support for Child under Form 14 with a Line 2a adjustment. Even though we defer to the trial court's determination of not being persuaded by Father's argument that the administrative consent order of December 17, 2002 was not really an "order" until...