Owsley v. Brittain, WD 64812.

• Decision Date: 07 February 2006
• Docket Number: No. WD 64812.,WD 64812.
• Citation: 186 S.W.3d 810
• Parties: Brenda D. OWSLEY f/k/a Brittain, Appellant, v. Clayton J. BRITTAIN, Respondent.
• Court: Missouri Court of Appeals

186 S.W.3d 810

Brenda D. OWSLEY f/k/a Brittain, Appellant, v. Clayton J. BRITTAIN, Respondent.

No. WD 64812.

Missouri Court of Appeals, Western District.

February 7, 2006.

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Seth D. Shumaker, Kirksville, MO, for appellant.

Milton E. Harper, Jr., Columbia, MO, for respondent.

Before EDWIN H. SMITH, Chief Judge, HAROLD L. LOWENSTEIN, ROBERT G. ULRICH, PATRICIA A. BRECKENRIDGE, JAMES M. SMART, JOSEPH M. ELLIS, VICTOR C. HOWARD, THOMAS H. NEWTON, RONALD R. HOLLIGER, LISA WHITE HARDWICK, Judges, and FRANK D. CONNETT, JR., Sr. Judge.

THOMAS H. NEWTON, Judge.

Ms. Brenda D. Owsley appeals from the circuit court's modification judgment, challenging its rulings on child support, child-support arrearages and abatement, the attorney's fee award, and certain evidentiary issues. Finding error on one issue, we affirm in part and reverse in part.

The parties (Ms. Owsley and Mr. Clayton J. Brittain) were married and had one child, John, who was born in 1984. They divorced in 1993 and were awarded joint legal and physical custody.¹ Mr. Brittain was also ordered to pay child support. In 1997 the judgment was modified by awarding sole legal and physical custody of the child to Mr. Brittain; Ms. Owsley was ordered to pay $249 per month in child support during the school year, and Mr. Brittain was obligated to pay $196 per month during the summer months when John visits with his mother. In 2002, his senior year in high school, John moved in with his mother; and neither party paid child support. In September 2002, Ms. Owsley filed a motion to modify child custody and amended the motion in February 2003. Ms. Owsley sought sole physical custody² and joint legal custody. She also sought to terminate her child-support obligation and impose a support obligation on Mr. Brittain.

While the motion was pending, John graduated from high school and enrolled in college. To prepare for trial and calculate Mr. Brittain's support obligation, his attorney made numerous attempts in 2003 to obtain information from Ms. Owsley regarding her finances and John's college enrollment, financial aid, and employment. The parties stipulated that neither Ms. Owsley nor John provided written notification to Mr. Brittain regarding college enrollment, the courses, or his grades for semesters beginning in fall 2003 and ending in summer 2004. On August 24, 2004, one day after the new semester began, Mr. Brittain did receive the documentation necessary to continue his support obligation under section 452.340.5.³

Following a bench trial in September 2004, the circuit court determined that John's earnings justified a deviation from the presumed child-support amount and ordered Mr. Brittain to pay child support to Ms. Owsley of $137 per month from October 1, 2002, through August 31, 2003, and, thereafter, commencing in January 2005. The court further determined that child support should abate from September 1, 2003, through December 31, 2004, for John's failure to comply with section 452.340.5. Ms. Owsley's child-support arrearages of $5,027.10 and Mr. Brittain's child-support arrearages of $831.10, both determined as of September 1, 2004, were set aside. Finally, legal fees of $4,000 were awarded to Mr. Brittain due to the "extraordinary amount" of time and legal services required to defend the action.

Ms. Owsley raises six points on appeal and asserts that the circuit court erred in: (i) abating child support from September 1, 2003, through December 31, 2004; (ii) assessing attorney's fees against her; (iii) incorrectly calculating Mr. Brittain's child-support obligation; (iv) making an inconsistent, vague, and unenforceable order regarding child-support arrearages; (v) failing to consider Ms. Owsley's request for attorney's fees; and (vi) failing to allow Ms. Owsley to question the parties' child concerning notice to Mr. Brittain about his college enrollment.

In a bench-tried case, we affirm the circuit court's decision unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Meyer v. Block, 123 S.W.3d 316, 321-22 (Mo. App. W.D.2003). We defer to the court's credibility determinations and view the evidence and all reasonable inferences in the light most favorable to the court's judgment. Id. at 321. We disregard all contrary evidence. Id. Regarding the exclusion or admission of evidence, trial courts have considerable discretion, and we will not reverse an evidentiary ruling unless that discretion has been abused. Campbell v. Campbell, 929 S.W.2d 757, 762 (Mo. App. W.D.1996).

As to attorney's fees in child-support cases, the circuit court's decision is presumed correct, and we defer to its determination. Sullivan v. Sullivan, 159 S.W.3d 529, 542 (Mo.App. W.D.2005). The complaining party bears the burden of overcoming the presumption that the circuit court has considered all of the factors under section 452.355.1. Id. And we will not reverse a circuit court's award or denial of attorney's fees in such cases, unless the complaining party shows that its decision was "against the logic of the circumstances and so arbitrary and unreasonable as to shock one's sense of justice." Bauer v. Bauer, 38 S.W.3d 449, 457 (Mo.App. W.D. 2001) (citation omitted). We consider the circuit court to be an expert on attorney's fee issues, and it may consider a spouse's unreasonable conduct during the proceedings that may have increased the other spouse's fees. Id.

With respect to continuing eligibility for child support after the child reaches age eighteen, section 452.340.5 provides in relevant part:

If the child is enrolled in an institution of vocational or higher education not later than October first following graduation from a secondary school or completion of a graduation equivalence degree program and so long as the child enrolls for and completes at least twelve hours of credit each semester, not including the summer semester, at an institution of vocational or higher education and achieves grades sufficient to reenroll at such institution, the parental support obligation shall continue until the child completes his or her education, or until the child reaches the age of twenty-two, whichever first occurs. To remain eligible for such continued parental support, at the beginning of each semester the child shall submit to each parent a transcript or similar official document provided by the institution of vocational or higher education which includes the courses the child is enrolled in and has completed for each term, the grades and credits received for each such course, and an official document from the institution listing the courses which the child is enrolled in for the upcoming term and the number of credits for each such course.

(emphasis added).

Our rules of statutory construction require this court to determine the intent of the legislature by considering the plain and ordinary meaning of the words used in the statute. Jones v. Dir. of Revenue, 832 S.W.2d 516, 517 (Mo. banc 1992). Furthermore, if the language of the statute is clear and unambiguous, there is no room for construction. Id.

According to Ms. Owsley, she was the obligated parent for child support until the circuit court modified the parties' support obligations in 2004. Hence, she was not required to provide proof of John's enrollment or other documentation under this section. She argues, "Since Mr. Brittain was not the obligating parent under Section 452.340.5, whether he received such documentation from the child is immaterial and the provisions of Section 452.340.5 would not apply as it pertains to the father in this case." To the contrary, Mr. Brittain was obligated under the 1997 court order to pay child support to Ms. Owsley during the summer months. Regardless, the statute does not distinguish between obligated and non-obligated parents. To remain eligible for support, the child is simply required to provide the documentation to "each parent," and we see no reason to interpret the statute otherwise. See Mayes v. Fisher, 854 S.W.2d 430, 432 (Mo. App. W.D.1993) (where statutory language is unambiguous, resorting to statutory construction is unnecessary).

Ms. Owsley further contends that even if the section does apply, the child was not required to provide proof of enrollment with respect to his first semester, and the summer semester is also exempt from the reporting requirements. While the Missouri Supreme Court has acknowledged that "[t]here appear to be no reporting requirements for the first semester" under this section, eligibility for support during that semester may be established "simply by proof of enrollment." In re Marriage of Kohring, 999 S.W.2d 228, 233 (Mo. banc 1999). There is no indication in Kohring about how the child complied with this requirement, and we will not address that issue now.⁴ Regarding the summer semester, the only exception noted in the statute relates to the 12-credit hour requirement and not to the notification requirements, which are set forth in a separate sentence and relate without exception or qualification to "each semester."

According to the stipulation filed by the parties and the evidence introduced at trial, before 2004 John did not provide any information to his father, either oral or written, official or unofficial, that he was enrolled in college for the fall 2003 semester. The parties have also stipulated that, except for documents provided on August 24, 2004, John did not provide any written documentation to Mr. Brittain regarding "the courses in which he was enrolled, the number of credit hours, and his grades for the Fall 2003 semester, Winter 2004 semester and Summer 2004 semester."⁵ Accordingly, the circuit court did not err in finding Mr. Brittain's support obligation abated between September 2003 and August 2004.

The court did err, however, in finding that, because the specified documentation was...