S.L.J. v. R.J.

• Court: Missouri Court of Appeals
• Writing for the Court: DOWD
• Citation: S.L.J. v. R.J., 778 S.W.2d 239 (Mo. App. 1989)
• Decision Date: 13 June 1989
• Docket Number: No. 53845,53845
• Parties: S.L.J., Cross-Appellant, petitioner, v. R.J., Cross-Appellant, respondent, v. Harvey KAHN, Defendant.

Page 239

778 S.W.2d 239

S.L.J., Cross-Appellant, petitioner, v. R.J., Cross-Appellant, respondent, v. Harvey KAHN, Defendant.

No. 53845.

Missouri Court of Appeals,

Eastern District,

Division Three.

June 13, 1989.

Application to Transfer Denied Nov. 14, 1989.

R.J., St. Louis, pro se.

Elaine C. Bachman, Clayton, for petitioner.

DOWD, Presiding Judge.

Husband and wife both appeal the judgment as well as certain contempt citations entered in a dissolution action. We affirm.

Husband, R.J., and wife, S.L.J., were married in September 1973. The marriage produced two children: Robbie, born in 1976, and Danny, born in 1979. In June of 1984, wife separated from husband, taking the two minor children, and filed for dissolution in December 1984. Husband also filed a petition for dissolution at a later date. The parties dispute the occurrences between separation and trial, but it is clear that they exhibited animosity toward each other. In addition, conflict developed over the custody schedule, including a line of incidents concerning Robbie's refusal to enter his mother's custody unless she accepted the family dog. At various times, both parties filed motions for temporary restraining orders and contempt. Additionally, husband filed a civil suit against wife seeking half a million dollars in damages for alienation of affection. In 1986, a guardian ad litem was appointed to represent the children. Around early 1987, psychologists employed by the St. Louis County Juvenile Court conducted court-ordered examinations of the parties and the children.

Trial began on July 7, 1987. We will not attempt to relate the extensive and often conflicting evidence offered, but note that both parties and both children testified, as did a number of psychologists, other experts, and witnesses to certain events. After the eleven day trial concluded, the court entered its findings. With respect to the children, the court found it in their best interests that wife receive custody and husband receive "extensive periods of temporary custody and visitation." Specifically, the court found that although husband loves the children, he had embroiled them in the dispute with wife, had alienated Robbie's affections for his mother and had violated the pre-trial custody order. Because of custody violations on thirty-three days and because of husband's action in preventing telephone contact between wife and the children, the court granted two of wife's motions for contempt against husband. The rest of the parties' contempt motions were either denied or declared moot.

The family home, valued at $210,000, was ordered sold, with $165,000 of the proceeds going to wife. The other marital assets were divided among the parties as discussed below. The court found that wife, who had an education degree, experience as a secretary, and was studying for a paralegal degree, was capable of earning at least $15,000 per year and did not require maintenance. Husband, an attorney, had surrendered his license to practice in Missouri in 1984 although he retained his Illinois license and a Missouri real estate broker's license. Despite husband's claim that he was unemployed and unable to earn a positive net income for at least three years, the court found him capable of earning $32,000 a year, his earnings prior to surrendering his Missouri license. Husband was denied maintenance and required to pay child support of $220 per month per child. The court also ordered him to pay $25,000 of wife's attorney's fees.

Both parties and the minor child Robbie filed various post-trial motions which were denied. Now husband appeals to this court in an eight point brief and wife appeals with a one point brief.

Wife claims that the trial court erred in denying her maintenance. Section 452.335.1 authorizes a court to award maintenance when a party does not have sufficient property to provide for his reasonable needs and cannot "support himself through appropriate employment or is the custodian of a child whose condition ... makes it appropriate that the custodian not be required to seek employment." The trial court has great discretion in deciding whether to make such an award and its decision will not be overturned on appeal absent an abuse of discretion. Hahn v. Hahn, 739 S.W.2d 763, 764 (Mo.App.1987).

In the case at bar, the trial court found that wife could earn at least $15,000 per year "without detriment to the minor children" and that, combined with her property, was sufficient to meet her reasonable needs without maintenance. There was sufficient evidence to support these findings and we do not deem them to be an abuse of discretion.

Turning to husband's brief, we initially note that we are waiving his error of form. Husband requested and received permission to file a brief in excess of 100 pages, but not to exceed 120 pages. Husband in fact filed a 119 page brief, but it was not double spaced as required by Rule 81.17. Instead, the brief was one and a half spaced. Given the length of the brief, this error effectively added over 45 pages worth of extra lines. Although we overlook the error in this case, let this opinion serve as notice to the bar that any future violations of this nature will be seriously considered as grounds for dismissal.

We first address husband's second point which claims that "the trial court erred in ordering wife, a non-Jewish person, to raise the minor children within 'the traditional principles of Judaism.' " He initially argues that the court's order violated Article I section 7 of the Missouri Constitution, providing for separation of church and state. After arguing that the provision is void, husband attempts to show that custody should be awarded to him because he is a practicing Jew and wife, while born a Jew, has converted to Christianity. The implication is that husband will arrange for the children to be raised as Jews. At trial, however, wife expressed her desire that the children be raised in husband's faith as opposed to her own and claimed she was able and willing to provide such training. Both parties proposed and recommended to the trial judge that the children be raised as Jews. The trial court found that it was in the children's best interests that they be raised as Jews "until they reach the age of 16 when they may have the maturity to make their own religious decisions." He felt that failure to do so would "impair the emotional development of the children." Now that the trial court has accepted his arguments and proposals, husband claims the ruling implementing these decisions is unconstitutional.

A constitutional issue must be presented to and passed upon by the trial court or it is not preserved for appeal. Fahy v. Dresser Industries, Inc., 740 S.W.2d 635, 639 (Mo. banc 1987). If not so raised, a constitutional argument is waived. R.J.J. by Johnson v. Shineman, 658 S.W.2d 910, 915 (Mo.App.1983). At oral argument, husband's attorney admitted that the issue here was raised for the first time in the notice of appeal and the record supports this statement. Even though husband filed post trial motions, no mention of the questioned provision was made prior to the notice of appeal. Having failed to raise this constitutional challenge before the trial court, husband waived it. Even if we examined the provision and found it unconstitutional husband would not be entitled to the relief he seeks; we would merely strike the provision from the order. Given wife's acquiescence to raising the children as Jews, such an error would not be grounds to reverse the custody award.

Point III challenges the trial court's refusal to grant Robbie leave to intervene in post-dissolution proceedings and failure to grant a hearing on Robbie's motion for appointment of a new guardian ad litem. Patently, husband has no standing to appeal these rulings because he is not an aggrieved party. § 512.020, RSMo 1986. He attempts to draw standing from his status as Robbie's father and cites In re Estate of McCahon, 729 S.W.2d 67 (Mo.App.1987), in support. In that probate case, a mother was a party in her individual capacity and as guardian for her two children. When she attempted to appeal the paternity finding as to the child of decedent and another woman, the respondents claimed she was not aggrieved. The Southern District Court of Appeals held that she was entitled to appeal as guardian for the children, who were aggrieved parties, even though she could not appeal as an individual. Id. at 70.

McCahon does not apply to this case because husband is not appearing as Robbie's guardian. Under section 475.025, RSMo 1986, a parent is considered a "natural guardian" of his child "[i]n all cases not otherwise provided for by law." Section 452.490.4, RSMo 1986, allows the court to appoint a guardian ad litem for a child in custody cases. This appointment supersedes the parent's natural guardianship. See Todd v. Garrison, 417 F.Supp. 97, 102 (E.D.Mo.1976), aff'd 553 F.2d 103 (1977). The issue in question falls within the areas of interest superseded by the guardian ad litem appointment; consequently husband cannot act as Robbie's guardian in these matters while the appointment lasts. ¹ Because he is not appealing as Robbie's guardian, husband has no standing to raise these claims.

Husband also attacks the child support award of $220 per child per month. He claims the court failed to consider 1) the financial resources of the minor children; 2) wife's financial resources, including the property award and her employment; and 3) husband's poor financial condition. Section 452.340 sets forth the factors the trial court must consider in making a child support award; at the time of trial, prior to the 1988 amendments, the factors included the resources of the children, the resources of the custodial and non-custodial parent, and "the father's primary responsibility for support of his child." The award of support is within the trial court's discretion and will not be...