Rombach v. Rombach, 75577

• Decision Date: 21 December 1993
• Docket Number: No. 75577,75577
• Citation: 867 S.W.2d 500
• Parties: Beverly A. ROMBACH, Respondent, v. William Walter ROMBACH, Appellant.
• Court: Missouri Supreme Court

Page 500

867 S.W.2d 500

Beverly A. ROMBACH, Respondent, v. William Walter ROMBACH, Appellant.

No. 75577.

Supreme Court of Missouri,

En Banc.

Dec. 21, 1993.

Lawrence G. Gillespie, Webster Groves, for appellant.

Susan M. Hais, James P. Carmody, Clayton, Theresa Counts Burke, St. Louis, for respondent.

PRICE, Judge.

Appellant William Walter Rombach ("Husband") appeals from the judgment that dissolved his marriage to Beverly Arri Rombach ("Wife"). We hold that Husband has standing to protest the trial court's failure to appoint a guardian ad litem. Nevertheless, nonappointment of a guardian in this case was not error under § 452.423.1, RSMo Supp.1990, because abuse or neglect was not pleaded and because the evidence admitted at trial was not sufficient to show actual abuse or neglect that would require the pleadings to be amended pursuant to Rule 55.33(b). We further hold that the trial court's distribution of marital property and the award of maintenance to Wife was not in error. The judgment is affirmed.

I

The parties were married on May 31, 1974. They have four children who are currently between the ages of eight and seventeen years. Wife filed a petition for dissolution of marriage on January 27, 1989.

On April 9, 1991, the trial court granted Wife a dissolution decree awarding her primary care, custody and control of the couple's four minor children, subject to Husband's temporary custody schedule. Husband was ordered to pay child support of $300.00 per month per child until emancipation. Husband was also ordered to maintain medical insurance for the minor children and to pay all nonreimbursed medical costs. Additionally, the trial court ordered Husband to pay Wife maintenance of $750.00 per month.

In its distribution of marital property the trial court awarded Wife the marital residence in which there was approximately $50,000.00 equity, computer equipment, a 1986 Chevrolet Caprice station wagon, and various bank accounts and insurance policies. The court awarded Husband the family business, Wally Rombach Productions, Inc., a 1989 Chevrolet Lumina, and various bank accounts and insurance policies.

On June 27, 1991, the trial court heard Wife's motion to amend the decree and Husband's motion for a new trial. The court made two amendments to the original decree. Wife was ordered to take full responsibility for the mortgage on the marital residence. Also, Wife was ordered to transfer the federal tax deduction available for the children to husband for as long as he stays current in his child support payments. The court denied Husband's motion for new trial.

Husband appeals from this result and raises three points of error. Husband's first point is that the trial court's failure to appoint a guardian ad litem sua sponte to represent the Rombach children was error under § 452.423.1, because Wife introduced evidence that constitutes allegations of abuse or neglect. Husband's second point of error is that the trial court used an improper valuation method in determining the value of good will for Husband's business in the distribution of marital property. Finally, Husband argues that the trial court's award of maintenance to Wife was excessive.

II

Husband's first argument on appeal is that the trial court erred in failing to appoint on its own motion a guardian ad litem to represent the interests of the Rombachs' minor children when Wife introduced evidence of child abuse and neglect. Husband relies on § 452.423.1, which states:

In all proceedings for child custody or for dissolution of marriage or legal separation where custody, visitation, or support of a child is a contested issue, the court may appoint a guardian ad litem. The court shall appoint a guardian ad litem in any proceeding in which child abuse or neglect is alleged. ¹

Although Wife did not allege child abuse or neglect in her pleadings, Husband contends that Wife's testimony at trial was sufficient to constitute allegations that Husband abused and neglected the Rombach children. In support of his argument, Husband cites portions of Wife's testimony stating that: Husband used profanity during an argument with Wife, which took place on the telephone; in an attempt to persuade his daughter to get off of a family room table, Husband called her a "fat little pig"; Husband poured a glass of water on one of his sons when the child was throwing a temper tantrum; Husband did not take the children to the hospital as quickly as Wife considered appropriate when injuries occurred; when one son had poison ivy on his leg, Husband wrapped the leg with an Ace bandage and allowed the child to participate in his soccer game; in an attempt to get the children into his car Husband resorted to grabbing, pushing, shoving and talking harshly; Husband aimed his automobile at one of his sons and began to back up in order to convey the impression that he would run the boy over with the car if he did not get in; and finally, Wife characterized Husband's general approach to disciplining the children as "physically and verbally abusive." Neither Husband nor Wife requested appointment of a guardian ad litem at trial.

(A)

At the outset, we must consider whether Husband has standing on appeal to raise the issue of nonappointment of a guardian ad litem. Husband did not raise the issue below, and it is unclear how appointment of a guardian would have been favorable to Husband's interests. Any evidence of abuse or neglect that may exist would implicate Husband as the guilty party.

Mandatory appointment of a guardian ad litem is not intended to benefit either of the parties in a dissolution proceeding. See Bereuter v. Bereuter, 655 S.W.2d 789, 790 (Mo.App.1983). Instead, the legislature enacted § 452.423.1 to protect children who may have been abused or neglected. It is for this purpose only that we will allow either parent standing to raise on appeal the issue of

nonappointment of a guardian ad litem. See Van Pelt v. Van Pelt, 824 S.W.2d 135, 139 (Mo.App.1992). If we do not give parents standing to raise this issue, the interests of our children may not receive the protection they deserve.

(B)

It is clear that § 452.423.1 mandates appointment of a guardian ad litem when child abuse or neglect is "alleged" in dissolution proceedings. The question before us is whether the mandatory appointment provision of § 452.423.1 is triggered by the introduction of evidence at trial, absent express allegations of child abuse or neglect in the pleadings. The court of appeals has struggled with this question. See e.g., Osmun v. Osmun, 842 S.W.2d 932, 935 (Mo.App.1992); Van Pelt v. Van Pelt, 824 S.W.2d 135, 139 (Mo.App.1992); King v. King, 793 S.W.2d 200, 203-04 (Mo.App.1990).

(i)

Resolution of this issue begins with the legislature's choice of the word "alleged" as opposed to the word "evidence" or other words of similar effect. "Alleged" has a commonly accepted meaning in the context of a lawsuit. ² Generally, it is understood to mean the assertion of claims or defenses in the pleadings. ³ Evidence, on the other hand refers to items of proof of facts that have been averred or alleged. ⁴

There is practicality to the distinction between an allegation and evidence in the context of § 452.423.1. For a guardian ad litem to be of the most benefit to the child, he or she must be involved from the pleading stage of the lawsuit. Only then will the guardian have an opportunity to investigate, discover and marshal those facts necessary to protect the interests of the child at trial. Needless to say, appointment of a guardian ad litem in midtrial will usually result in an almost impossible task for the guardian or a continuance that is costly in time, money, and emotion to all involved. Moreover, if mere evidence were the test, the trial court would be left with no discretion to ferret out cases where some evidence might arguably exist going to the issues of abuse or neglect, but the evidence is too ambiguous, vague, speculative or remote to justify such an action.

Accordingly, we hold that the mandatory appointment of a guardian ad litem pursuant to § 452.423.1 is triggered only by an allegation of child abuse expressly stated in a pleading and not by the mere introduction of evidence at trial.

(ii)

Our analysis, however, cannot end here. Rule 55.33(b) provides for the amendment of pleadings to conform to evidence at trial. The rule states:

(b) Amendments to conform to the evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the preservation of the merits of the action will be served thereby and the objecting party fails to satisfy the court that the admission of such evidence will prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

The language of the rule gives direction to the trial court both in situations where no objection is made to evidence of unpleaded facts or claims and in situations where objection is made. First, if the evidence is not objected to and it raises an issue that is tried by the implied or express consent of the parties, the issue shall be treated as if it were alleged and a motion to formally amend may be made even after judgment. The only discretion allowed the trial court is in determining whether the issue was tried by "implied consent" of the parties. If so, the pleadings "...