Patton v. Patton, WD

• Decision Date: 07 July 1998
• Docket Number: No. WD,WD
• Parties: Terry Marie PATTON, Respondent, v. Gary Eugene PATTON, Appellant. 53824.
• Court: Missouri Court of Appeals

Page 139

973 S.W.2d 139

Terry Marie PATTON, Respondent, v. Gary Eugene PATTON, Appellant.

No. WD 53824.

Missouri Court of Appeals,

Western District.

Submitted Jan. 7, 1998.

Decided July 7, 1998.

Harold L. Caskey, Butler, for appellant.

Christopher Hoberock, Nevada, for respondent.

Before EDWIN H. SMITH, P.J., and SMART and ELLIS, JJ.

PER CURIAM.

Gary Eugene Patton appeals an order modifying a dissolution of marriage decree. Mr. Patton ("Gary") asserts that the trial court abused its discretion by refusing to order that Terry Marie Patton pay child support during the three summer months that Gary has custody of their minor child, Gina, refusing to abate Gary's support payment during these months or, in the alternative, by refusing to calculate an offset giving Gary credit for support that Mrs. Patton ("Terry") should pay during the summer months. Gary further contends that the court erred when it failed to find that it would be in Gina's best interests if Gary became her primary physical custodian. Gary challenges the court's award of attorney fees to Terry and the continuance granted by the court during the modification proceedings. Finally, Gary contends that the court violated the Americans with Disabilities Act and the Code of Judicial Conduct by refusing to allow his attorney, who is visually impaired, adequate time to review respondent's expert witness' report and to cross-examine that expert.

BACKGROUND

On August 8, 1995, the marriage of Gary and Terry Patton was dissolved by the trial court which awarded the parties joint legal custody of their daughter, Gina. Terry was awarded primary physical custody of Gina, and Gary was given liberal visitation rights. Gary's visitation was on alternate weekends and for two hours each Tuesday and Thursday evening during the school year. Summer visitation began a week after the school year ended and extended to the week before school began in the fall. Terry had custody Both parents lived in Nevada, Missouri. On January 15, 1996, Terry took Gina and moved to St. Louis, Missouri. Terry had not told Gary about the move, nor did she tell Gina until the time of the move. Terry testified that she did not tell Gary about the move until she was on the road to St. Louis because she was afraid he would be abusive to her. On the day following Terry's move to St. Louis, January 16, 1996, Gary filed a motion for contempt, a motion for modification, and a motion for temporary custody. On February 26, 1996, after an evidentiary hearing, the trial court found that Terry was not in contempt and denied Gary's motion for temporary custody.

of Gina on alternate weekends and for a two week visit during the summer. Gary also was granted visitation at other times, specifically Gina's spring break and during the Thanksgiving and Christmas holidays. Gary was ordered to pay child support in the amount of $282.75 per month. This figure had been adjusted to reflect the time that Gary had custody of Gina.

The hearing on the motion for modification was held October 6, 1996, and November 26, 1996. On October 6, Gary's attorney first asked the court for another court date when it appeared that the trial would last into the evening hours, but then informed the court that his co-counsel could finish that day. Terry's attorney informed the court that he could not continue into the evening. The trial court mentioned several open dates, but Gary's attorney had scheduling conflicts on those dates. Neither party objected when the case was continued to late November.

In the hearing, Terry testified that she moved to St. Louis because she had found a better paying job in St. Louis and that her objective was to go to school. She testified that Gina was doing well in school, was making friends in her neighborhood and was in Brownies. Terry said that Gary did not allow Gina to have friends. Terry also testified that Gina had been very excited at the opportunity to participate in her school's Christmas program. The Christmas program was scheduled to take place during Gary's visitation weekend. Terry offered to trade weekends with Gary. As an alternative, Terry suggested that Gary attend the program. However, after Gary talked to Gina, Gina dropped out of the program because Gary had given Gina the choice of being in the Christmas program or seeing him on that weekend.

The parties presented conflicting evidence concerning Gina's well-being. Terry testified that Gina was a cheerful child. In contrast, Gary claimed that when Gina was in his custody she was clingy, depressed and anxious. Both sides also presented testimony related to Gina's mental health. Gary's experts testified that Gina suffered from depression. However, Terry's expert testified that Gina did not have major depression, major anxiety or posttraumatic stress.

On the subject of Gina's mental health, Terry was allowed to call an expert witness out of time at the November hearing. This witness, Dr. Ann Duncan, testified concerning her fees for administering tests, preparing a report, and testifying. During cross-examination, Gary's attorney requested time to have Dr. Duncan's report read to him (Gary's attorney is visually impaired). The court granted counsel's request. Thereafter, counsel requested two more hours to continue the cross-examination. At that time it was nearly two o'clock. Dr. Duncan stated she needed to catch a plane at 4:15 p.m. The court told counsel that if Dr. Duncan was detained beyond three o'clock, her costs would be on his tab. Counsel stated that he had no further questions.

On November 27, 1996, the trial court entered its order modifying the dissolution decree. The judgment stated that the court had heard evidence and that its judgment was based upon that evidence. The trial court found a change of circumstances as a result of Terry's move to St. Louis and with respect to the amount of child support due under Rule 88.01. Primary physical custody of Gina remained with Terry. Gary's support obligation was increased to $342.00 per month and was not adjusted to reflect the time Gina spent with Gary during the summer. Gary was ordered to pay $3,500.00 of Terry's attorneys' fees. Gary appeals.

ABATEMENT OF CHILD SUPPORT DURING EXTENDED VISITATION

Review of the trial court's determination of a child support modification is performed under the auspices of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), which directs that the trial court's ruling 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. Peery v. Peery, 933 S.W.2d 912, 914 (Mo.App.1996). The evidence is viewed in the light most favorable to the judgment; all contrary evidence is disregarded. Leone v. Leone, 917 S.W.2d 608, 611 (Mo.App.1996). Unless the trial court has abused its discretion or has erroneously applied the law, we will not reverse its determination of an award of child support. Id. There is an abuse of discretion when the trial court's ruling is clearly against the logic of the circumstances and is so arbitrary as to shock one's conscience and indicates a lack of consideration. Rios v. Rios, 935 S.W.2d 49, 52 (Mo.App.1996).

Gary first argues that the trial court abused its discretion and erroneously applied the law by refusing to order that Terry pay child support during the three months of summer when Gina is in his custody. He complains that the court erred by its refusal to abate his support payments during the summer months or, in the alternative, by not calculating an offset to give him credit for the time Gina is in his custody. Under the terms of the original dissolution decree, Gary was ordered to pay child support in the amount of $282.75 per month, which allowed Gary credit for the time Gina spent with Gary during the summer.

Section 452.370.1, RSMo 1994 provides that "the provisions of any decree respecting maintenance or support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable." The same section establishes that if the financial circumstance of the parties would result in a change in the amount of support by more than 20%, a prima facie showing is made of a substantial and continuing change in circumstances. § 452.370.1, RSMo 1994. The trial court found a change in circumstances with respect to child support without reciting the facts on which it was relying. It increased the amount of Gary's child support payment, ordering that he pay $342.00 per month. In contrast to the original decree, no provision for abatement for the summer months was made and no finding was made that the amount was unjust.

Gary relies on Leone v. Leone, 917 S.W.2d 608 (Mo.App.1996) as justification for his argument that Terry should pay support during the summer months. He contends that Leone stands for the proposition that where the non-custodial parent has custody of the child for all but three weeks during the summer months, and there is no evidence that the custodial parent has expenses justifying an order of no support, the custodial parent should pay support or, in the alternative, payments should be annualized to take that amount into consideration.

In Leone, this court held that the trial court abused its discretion in failing to award child support to Father where Father had custody of the child for all but three weeks during the summer, as well as every Friday through Sunday during the school year. Leone, 917 S.W.2d at 612. In Leone the parties had nearly equal custody (roughly 51% to 49% in favor of Father) of the children when the entire year was considered. Id. In addition, Mother and Father had nearly equal incomes, and few assets. Id. Here, the parties have relatively equal incomes, with Gary making slightly more. The record fails to reveal anything about the parties' assets, but at the time of the dissolution in 1995, neither party had...