Niederkorn v. Niederkorn
| Decision Date | 28 April 1981 |
| Docket Number | No. 41067,41067 |
| Citation | 616 S.W.2d 529 |
| Parties | Sheryl NIEDERKORN, Petitioner-Respondent, v. James NIEDERKORN, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Irving L. Cooper, Clayton, for respondent-appellant.
Charles P. Todt and Susan M. Hammer, Clayton, for petitioner-respondent.
Appeal by husband in a dissolution of marriage proceeding. Husband contends: (1) that the trial court erred in awarding to wife the federal income tax exemption for the couple's only child; (2) that the trial court's decree awarding temporary custody to husband was flawed in several respects; (3) that the trial court erred in ordering husband to keep his life insurance policy in full force and effect, with the child as beneficiary; (4) that the trial court erred in ordering husband to maintain medical insurance coverage on the child and in ordering wife to maintain dental insurance coverage on the child; (5) that the trial court's award to wife of $225 per month from husband for child support was excessive; (6) that the trial court's award of attorney's fees to wife was against the weight of the evidence; (7) that the trial court erred in ordering husband to pay to wife $2,000 in a lump sum. We affirm in part, reverse in part and remand for modification.
A statement of relevant facts follows. Additional facts will be introduced as needed in discussing the issues.
The parties were married on June 19, 1965. They have one daughter, Stacey, who was twelve years of age at the time of trial. The marital home is valued between $40,000 and $50,000. Wife provided the down payment for the home, in an amount between $6,000 and $8,000.
Wife's gross income from employment has been $14,000 a year, leaving her approximately $714 monthly take-home pay. Husband's gross income as a teacher has been about $15,500 per year, or $824 monthly take-home pay. In addition, husband makes extra money during the summer. The parties disagree as to the amount, but husband apparently concedes that he can make at least $1,500 extra in the summer. The parties agree that wife provided roughly fifty-two percent of the family income during the course of the entire marriage.
The parties agree that husband had a balance of $169 per month left over after expenses. At trial, a good deal of evidence was admitted concerning the amount of husband's monthly expenditures for recreation, which apparently consisted principally of golf games and wagers thereon. Husband testified that he spent $135 per month on these activities, but there is evidence in the record to support wife's contention that the actual figure was over $200 per month.
Husband and wife separated in November of 1977. Prior to that time, wife had a savings account in her own name in the amount of $4,000. Husband had a $1,500 savings account. At the time of separation, husband took $3,000 from wife's savings account. Of that $3,000, he testified that he used $1,000 to pay off family debts, an additional sum to establish a separate residence and that he kept the balance. Wife testified that living conditions were intolerable and that husband would not agree to leave the home unless wife surrendered the $3,000 in question. Wife stated that her husband's departure necessitated her purchase of a car, on which she owed $114 per month.
At the time of the hearing below, husband had two life insurance policies. One was in the amount of $5,000. The other, obtained from his employer, varied in value from year to year. Daughter Stacey was the beneficiary under both policies.
Wife prayed for custody, child support, marital property, the family residence, attorney's fees, costs and for such other orders as the court deemed just and proper. Husband admitted custody in his answer. The parties stipulated that the family residence be set off to wife.
Wife testified that Stacey had notice of the dissolution hearing. When questioned about temporary custody, wife stated that she would like a day's notice from husband and that she did not wish her daughter to be exposed to one Carolyn Meyerholz. Wife identified the party as a former student of her husband's, five or six years older than her daughter. Wife described her daughter as being angry at Carolyn Meyerholz.
The court below, with counsel and parties present, announced the appointment of a guardian ad litem for the child. The guardian was instructed to notify the child of future hearings and to interview the child regarding temporary custody, with particular attention to the child's reaction to Carolyn Meyerholz. The guardian filed a written report eleven days before the next hearing stating that, based on his interview of the child, he believed Carolyn Meyerholz to be a disturbing influence on Stacey.
At the hearing following this report, the court entered judgment dissolving the marriage, awarding primary custody of Stacey to wife, and setting off the real property to wife, with her to assume the indebtedness thereon. The court noted that the parties waived maintenance. Husband does not appeal from these determinations nor from several other portions of the judgment.
Husband contends on appeal that the trial court erred in awarding to wife the federal income tax exemption for the dependent child, on the grounds that the award was against the weight of the evidence, was contrary to the provisions of the Internal Revenue Code, and was not prayed for by wife. We disagree. Wife made a general prayer for relief. A prayer is not strictly a part of the pleadings and does not bind a court of equity. A general prayer for relief permits the balancing of all the equities that are within the scope of the pleadings and the evidence. In Re Marriage of Morriss, 573 S.W.2d 101, 103 (Mo.App.1978); Allen v. Allen, 433 S.W.2d 580, 583 (Mo.App.1968); Cannon v. Bingman, 383 S.W.2d 169, 173 (Mo.App.1964). Missouri courts have jurisdiction over the question of which party receives the federal income tax exemption. Roberts v. Roberts, 553 S.W.2d 305, 307 (Mo.App.1977). In Roberts, the petitioner had requested such an award from the trial court but we cannot conclude that the absence of a specific request as in the case at bar takes this matter out of the court's hands. Once rightfully in possession of a case of this type, the court will not relinquish the matter without a full and complete determination of the rights and liabilities of the parties with respect to the controversy involved. Craig v. Jo B. Gardner, 586 S.W.2d 316, 325 (Mo.banc 1979); Morriss, supra, 103; Allen, supra, 583-584; Cannon, supra, 173.
The controversy involved here concerns the financial positions of the parties and the means by which their daughter will be supported. The federal exemption bears directly on the financial positions of the parties. An award of the tax exemption to one party is nearly identical in nature to an order that the other party pay as child support a sum equal to the value of the exemption. Such an award is therefore surely within the scope of the pleadings and evidence related to the wife's request for child support in this case.
The award of the exemption to wife in this case was not contrary to the provisions of the Internal Revenue Code. Under the Code, the dependent exemption is awarded to the taxpayer whose dependent receives "over half of (his) support ... from the taxpayer ... (if the dependent is) ... a son or daughter of the taxpayer." 26 U.S.C.A. § 152(a). The Code contains a special rule, however, for awarding the exemption to a non-custodial parent. The award goes to a non-custodial parent if: (1) he provides at least $1,200 per year to support the child; and (2) the custodial parent does not clearly establish that she provided more than half the support. 26 U.S.C.A. § 152(e)(2).
In the instant case, husband provided well over the required $1,200, but we do not think the trial court erred in finding that wife clearly established that she provided more than half the child's support. Husband was ordered to pay $225 per month to support the child. Wife presented evidence at trial that she expended $220 per month on the child alone. Wife further testified that some of the "General Expenses" of $522.80 per month and of the "Other Expenses" of $169.50 per month, which she listed separately from the child's expenses in her budget submitted to the court, were attributable to the child. These expenses included "Car Operation" and "Utilities." Wife testified that she frequently used the car for purposes related to the child alone.
The trial court was free to believe wife's testimony in these matters. The trial court could reasonably have concluded from her testimony that more than $5 per month out of the "General" and "Other" expenses were attributable to the child alone. Such a conclusion would support the trial court's award of the exemption to wife under the requirements of the Internal Revenue Code, 26 U.S.C.A. § 152(e)(2). Therefore, we uphold the trial court's order on this question.
The court below awarded primary custody of Stacey to wife. Regarding temporary custody, the decree reads as follows: "Reasonable rights of visitation and temporary custody upon at least 7 days' notice to petitioner and child and at no time during temporary custody will child be required to be in the presence of Carolyn Meyerholz."
Husband maintains that an order giving him "reasonable rights of visitation and temporary custody" is too vague to be enforceable. Husband cites for us no case holding such a decree too vague to be enforced, nor are we aware of any. On closer examination, the crux of husband's position seems to be not that the order is too vague to be enforced but that the lack of a definite visitation schedule will encourage further disagreement and contention between the parties.
It is true, as husband maintains, that this court has made a similar order...
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