Panettiere v. Panettiere

• Decision Date: 01 April 1997
• Docket Number: No. WD,WD
• Citation: Panettiere v. Panettiere, 945 S.W.2d 533 (Mo. App. 1997)
• Parties: Anna Marie PANETTIERE, Respondent, v. Frank Joseph PANETTIERE, Appellant. 51654.
• Court: Missouri Court of Appeals

Page 533

945 S.W.2d 533

Anna Marie PANETTIERE, Respondent, v. Frank Joseph PANETTIERE, Appellant.

No. WD 51654.

Missouri Court of Appeals Western District.

April 1, 1997.

As Modified May 27, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 27, 1997.

Mary Ann Drape, Kansas City, for appellant.

Kay Madden, Kansas City, for respondent.

Before BRECKENRIDGE, P.J., and SPINDEN and LAURA DENVIR STITH, JJ.

BRECKENRIDGE, Presiding Judge.

Frank J. Panettiere (Husband) appeals the trial court's judgment dissolving his marriage to Anna M. Panettiere (Wife). He contends that the trial court erred by ordering him to pay child support in addition to college tuition and other expenses. He also appeals the court's division of marital property and its failure to recognize a marital debt owed to his father. The judgment is affirmed in part, and reversed and remanded in part.

Husband and Wife were married on June 15, 1974. They have three children: Margaret Ann Panettiere, born on July 19, 1975; Frances Ann Panettiere, born on October 29, 1977; and Salvatore Frank Panettiere, born on August 21, 1982. At the time of trial, Margaret had completed her second year of college at Northwest Missouri State University. Frances had recently graduated from high school and planned to attend Northwest Missouri State along with her sister. The youngest child, Salvatore, was twelve at the time of trial.

Wife filed a petition for dissolution of marriage on April 8, 1994, in the Circuit Court of Jackson County. On July 19, 1995, the trial court entered an order dissolving the marriage and awarding the parties joint legal custody of the children with primary physical custody to Wife. The custody order is not challenged on appeal. Both parties waived maintenance in open court.

The trial court ordered Husband to pay child support in the amount of $207 per child, for a monthly total of $621. Although each party submitted a Form 14 to assist the court in its determination of the presumed amount of child support, the court rejected the parties' forms and calculated its own Form 14 using numbers most closely resembling those submitted by Wife. ¹ In addition, the court found the Form 14 support amount "unjust and inappropriate with regard to college tuition and unreimbursed medical expenses," and ordered each party to pay one-half of the tuition costs for the children's post-secondary education. Husband was ordered to provide medical insurance and the parties were ordered to divide equally "all medical, dental, orthodontic, optical, psychiatric, psychological and prescriptive drug costs not covered by insurance."

At the time of the trial, the parties owned a home in Lee's Summit, Missouri, along with three rental properties located in Blue Springs, Missouri. All of these properties were acquired during the marriage. The parties stipulated that the rental properties had a combined debt of $279,707 and that the equity in the properties totalled $102,793. The parties also stipulated that the value of the marital home equalled $170,000, but they disagreed on the amount of equity in the home due to Husband's claim that there was an outstanding loan from his father which was used to pay off the mortgage on their home.

With regard to the parties' real property, the trial court expressly found "[t]hat no competent evidence was presented to substantiate [Husband's] claim the parties owe money to [Husband's] father for the marital home, there being no deed of trust or note evidencing a loan." Therefore, the trial court found that the equity in the home was equal to the stipulated value of $170,000. Wife was awarded the marital home and Husband was ordered to execute a quit-claim deed to Wife for the home. In return, Husband was to receive a promissory note from Wife in the amount of $15,000, secured by a deed of trust against the marital home. Husband was awarded the rental properties and Wife was ordered to execute a quit-claim deed to Husband for each property.

The court further found that there were four cars acquired by the parties during the marriage, and awarded Wife the 1994 Mercury Sable and Husband the 1991 Oldsmobile Cutlass. The two cars driven by the daughters, 1992 and 1994 Mitsubishi Eclipses, were set aside to the daughters. This disposition was based on a finding that the cars were intended as gifts from Husband, even though the cars were titled in Husband's name at the time of trial.

The trial court also considered and assigned responsibility for the marital debts. Husband was expressly ordered to hold Wife harmless for the debts assigned to him and to fully indemnify her for any expense incurred, including attorney fees, resulting from the non-payment of any debt assigned to him. Wife was ordered to do the same for the debts assigned to her. Husband was assigned the responsibility to pay the mortgages for the rental properties and the loans on the two cars set aside to the daughters, as well as other smaller debts. Wife was assigned the responsibility to pay the loan for her car, along with the debts she had accumulated since the parties separated.

Husband presented evidence that his father, Salvatore Panettiere (Mr. Panettiere), loaned Husband and Wife approximately $80,000 during the course of their marriage, including the amount he claimed was an indebtedness on the marital residence. Wife acknowledged money had been received from Mr. Panettiere, but disputed that there was an obligation to repay any funds received. The court ruled that "[a]ny monies owed to Salvatore Panettiere is [sic] a moral obligation on the part of [Husband]."

A dissolution decree will be affirmed unless there is no substantial evidence to support it; it is against the weight of the evidence; or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Woolridge v. Woolridge, 915 S.W.2d 372, 375 (Mo.App.1996). The party challenging a dissolution decree bears the burden of demonstrating error. Woolridge, 915 S.W.2d at 375; Cofer v. Price-Cofer, 825 S.W.2d 369, 373 (Mo.App.1992). A judgment should be set aside with caution and only on a firm belief that the judgment is wrong. Fulton v. Adams, 924 S.W.2d 548, 551 (Mo.App.1996).

Husband initially argues that the court's order awarding child support was an erroneous application of the law and not based on substantial evidence. He claims that he should not be required to pay the loans on the daughters' cars and one-half of the college tuition costs for the children's post-secondary education in addition to the Form 14 amount of child support for each child.

As part of its order for child support, the trial court ordered each party to pay one-half of the cost of tuition. The court entered this order after finding that "[t]he evidence was not sufficient to determine the actual cost of tuition, room and board, fees, books or other expenses," and stating that it was unwilling to speculate to enter an order regarding all college expenses. Specifically, the order read:

6. The parties shall each pay one half of tuition costs at an institution of vocational or higher education should the minor children attend such institution. Said obligation shall be limited to the equivalent of tuition at Northwest Missouri State, for a total of eight (8) semesters, and after application of all available financial aid.

In addition, the court ordered Husband to pay $207 per month per child, the amount calculated by the court pursuant to Form 14.

At trial, both parties presented evidence regarding the expenses, in addition to the costs of tuition, which the children attending college would incur, such as room and board, books, and other living expenses. The testimony of a party as to a child's expenses is sufficient evidence on which to base an award of child support, and the expenses need not be proved with absolute particularity. DeCapo v. DeCapo, 915 S.W.2d 343, 350 (Mo.App.1996); Davies v. Davies, 887 S.W.2d 800, 804 (Mo.App.1994). As the trial court found, however, the lack of particularity prevented the court from entering an order requiring each parent to pay a portion of the specific non-tuition expenses. But, the evidence did demonstrate that the children at college have needs beyond tuition. Wife, as the primary custodian receiving support payments, is responsible for the children's living expenses while they are away at college. See Echele v. Echele, 782 S.W.2d 430, 438 (Mo.App.1989). By requiring Husband to pay Form 14 support for the children attending college, the court is ensuring that Husband contributes to their non-tuition expenses.

Husband further argues that the court's child support award is different from what either of the parties requested and, therefore, is not supported by the evidence. At trial, Husband expressed his wish to either pay child support for the daughters or one-half of tuition costs, but not both. Wife asked the court to order Husband to pay sixty percent of all college expenses, rather than regular child support. Both parties were in agreement that Husband should pay support for their son, but they could not agree on the amount.

The trial court did not err in choosing not to award support pursuant to the request of one or both parties. It is well settled in Missouri that a trial court has wide discretion in setting child support awards. Holmes v. Holmes, 878 S.W.2d 906, 909 (Mo.App.1994). The court setting the award is not bound by any agreement between the parties, nor is it required to enter an award according to the wishes of one or both parents. Jones v. Jones, 903 S.W.2d 277, 281 (Mo.App.1995) ("Agreements between parents that concern minor children are merely advisory.").

Next, Husband argues the child support award is an erroneous application of the law for two reasons. First, he contends the amount ordered is "facially vague" and uncertain with respect to the costs of tuition because the order does not mirror...