Roussin v. Roussin, 56656

• Decision Date: 26 June 1990
• Docket Number: No. 56656,56656
• Citation: 792 S.W.2d 894
• Parties: William E. ROUSSIN, Appellant, v. Barbara L. ROUSSIN, n/k/a Barbara L. Porter, Respondent.
• Court: Missouri Court of Appeals

Page 894

792 S.W.2d 894

William E. ROUSSIN, Appellant, v. Barbara L. ROUSSIN, n/k/a Barbara L. Porter, Respondent.

No. 56656.

Missouri Court of Appeals,

Eastern District,

Division Five.

June 26, 1990.

O'Loughlin, O'Loughlin & McManaman, Kenneth C. McManaman, Cape Girardeau, for appellant.

Biggs and Hensley, Philip Heagney, St. Louis, for respondent.

SIMON, Chief Judge.

Husband, William E. Roussin, appeals from an order entered February 14, 1989 as amended February 27, 1989 which modified certain provisions of his decree of dissolution to Wife, Barbara L. Roussin, n/k/a Barbara L. Porter. On appeal, Husband contends that the trial court's order as amended is against the weight of the evidence and constituted an abuse of discretion in: (1) failing to grant Husband actual physical custody of the parties' minor child at all times with certain specified exceptions; (2) failing to eliminate or reduce the amount of child support payable by Husband to Wife; and (3) ordering Husband to pay a total of $8250.00 as and for a portion of Wife's attorney fees. Additionally, Husband claims error in the trial court's failure to set an amount for a supersedeas bond for his child support obligation while this appeal is pending. We affirm.

The parties married December 28, 1971. Husband is an attorney, and Wife is a teacher. The marriage produced one child: John Mathew Roussin, born February 6, 1980. On October 31, 1984, Husband filed his petition for dissolution of marriage. A decree of dissolution was entered December 11, 1984 which incorporated by reference the terms of a separation agreement and a joint custody plan entered into by the parties. Pursuant to the decree, joint legal custody of the minor child was awarded to Husband and Wife. Actual physical custody of the minor child was awarded to Wife on a primary basis with Husband having temporary physical custody on alternate weekends, specified times during the week, specified times on holidays, and a block of time in the summer months.

Child support in the amount of $1000.00 per month was ordered to be paid by Husband. The decree further provided that disagreements in the custody arrangement shall be resolved through the use of a third party mediator, and that no motion to modify shall be commenced until attempts to resolve disputes through mediation have failed.

Sometime after the decree of dissolution was entered, both parties orally agreed to voluntarily rearrange the physical custody schedule for their minor son so that each party would have physical custody of John approximately fifty percent of the time. Husband's physical custody of John thereby was increased to every Monday and Tuesday and on alternate weekends. Husband did not, at that time, move for a reduction of child support commensurate with his increased physical custody.

Without engaging in third party mediation as required by the decree of dissolution, Husband filed a motion to modify child custody and child support on July 8, 1987. That motion was amended on August 12, 1987 and requested that legal and primary physical custody of the minor child be transferred to Husband, that Husband's child support obligation be dissolved, and that Wife be ordered to pay a reasonable sum as and for Husband's attorney fees. As grounds for his motion to modify, Husband alleged that Wife was endangering the morals and welfare of the minor child due to her cohabitation with a man to whom she was not married, refusal to confer with Husband regarding decisions, attempts to alienate the minor child's affections toward Husband, and failure to properly care for the minor child.

Subsequently, on June 20, 1988, Wife filed her own motion to modify child custody and child support along with a request for reasonable attorney fees. Wife requested that legal custody of the minor child be transferred to her, that she be granted continuous physical custody throughout the school week, that Husband be ordered to continue to pay all educational expenses and health care costs for the minor child as provided in the decree of dissolution, or in the alternative, that Husband's child support obligation be increased from $1000.00 to $1400.00 per month, and that Husband be ordered to pay Wife's reasonable attorney fees. As grounds for her motion to modify, Wife alleged that the parties' plan for joint legal custody was not working, Husband is unable to put the best interests of the minor child ahead of his own, and the educational costs and the costs of providing basic necessities for the minor child have increased since the entry of the decree of dissolution.

A hearing was held on the motions to modify at which the minor child, both parties, and their respective witnesses testified. By that time, both parties had remarried.

Subsequently, the trial court entered its order on February 14, 1989, finding that there had been a continuing and substantial change of circumstances regarding the legal custody of the minor child since the entry of the decree of dissolution. The trial court's order provided: (1) transfer of sole legal custody of the minor child to Husband; (2) maintenance of the physical custody arrangements as set forth in the separation agreement and joint custody plan made a part of and incorporated by reference in the original decree of dissolution; and (3) that Husband shall pay $7500.00 as a portion of Wife's attorney fees consistent with § 452.355 RSMo 1986.

On its own motion, the trial court amended its original modification order on February 27, 1989. The amended order clarified the exact times that Husband was to have physical custody of the minor child which tracked more closely the parties' oral arrangement regarding physical custody. The amended order further directed Husband to continue to pay child support in the amount of $1000.00 per month.

Husband then filed a motion for new trial or, in the alternative, to amend the judgment. Wife filed a motion to amend the judgment, and a motion for award of attorney fees for post-judgment legal services. On April 26, 1989, the trial court entered an order directing Husband to pay an additional $750.00 as and for a portion of Wife's attorney fees,...