Schaberg v. Schaberg

• Decision Date: 02 November 2021
• Docket Number: No. ED 109200,ED 109200
• Citation: 637 S.W.3d 512
• Parties: Danielle M. SCHABERG, Respondent, v. Jamie E. SCHABERG, Appellant.
• Court: Missouri Court of Appeals

637 S.W.3d 512

Danielle M. SCHABERG, Respondent,

v.Jamie E. SCHABERG, Appellant.

No. ED 109200

Missouri Court of Appeals, Eastern District, DIVISION ONE.

FILED: November 2, 2021

Motion for Rehearing and/or Transfer to Supreme Court Denied December 13, 2021

Application for Transfer Denied February 8, 2022

For Appellant: Benicia A. Baker-Livorsi, 6 Westbury Dr. #D, St. Charles, MO 63301, Kelly B. Chevalier, 6614 Clayton Rd., Ste. 203, St. Louis, MO 63117.

For Respondent: Kimberly J. Bettisworth, 206 W. Argonne Dr., Ste. G2, St. Louis, MO 63122.

KURT S. ODENWALD, Presiding Judge

Introduction

Jamie E. Schaberg("Jamie")¹ appeals from the trial court's judgment dissolving her marriage from Danielle M. Schaberg("Danielle"), dividing marital property, awarding sole legal and joint physical custody of Jamie's biological child ("Daughter") born during her marriage to Danielle, and ordering child support.Jamie raises four points on appeal.Jamie first challenges the trial court's authority to enter any judgment relating to parental custody and child support.Jamie argues Danielle lacked standing to seek any court order pertaining to custody and support of Daughter because Danielle is not a presumed parent under Section 210.822² and did not adopt Daughter during their marriage.Jamie also contends the trial court erred in failing to correctly divide all marital debt incurred by Jamie and Danielle during their marriage, entered an inconsistent and unenforceable judgment by awarding Danielle sole legal custody of Daughter but requiring Danielle to confer with Jamie before making any final decisions, and improperly calculated childcare costs resulting in an erroneous order of child support.Danielle and Jamie's same-sex marriage does not deprive Danielle of her statutory standing as the presumed and undisputed natural parent of Daughter, who was born during the marriage.Accordingly, the trial court acted within its authority when entering its judgment on custody and support issues relating to Daughter.Jamie did not preserve for appeal her points relating to the division of marital debt and the award of sole legal custody due to an inconsistent and unenforceable judgment and we therefore deny these points.Lastly, because the trial court correctly determined that the cost of attending daycare was a work-related childcare expense, we deny Jamie's final point on appeal.Accordingly, we affirm the trial court's judgment.

Factual and Procedural History

Jamie and Danielle, both women, married on January 21, 2017.One child, Daughter, was born during the marriage on April 2, 2017.Long before they were married, Jamie and Danielle talked about raising a family and specifically discussed having a baby together.Both Jamie and Danielle agreed that Jamie would be the biological mother of the child via in vitro fertilization using a sperm donor selected by both Jamie and Danielle.

Danielle petitioned for dissolution of marriage in April 2018.Jamie counter-petitioned for dissolution in July 2018.In her amended petition, Danielle requested sole legal and sole physical custody of Daughter.Jamie sought joint legal and joint physical custody of Daughter.

During dissolution proceedings, Domestic Relations Services ("DRS") advised the trial court to appoint a guardian ad litem ("GAL") for Daughter and recommended that Jamie and Danielle be referred for psychological evaluations due to their conflicting accounts of Jamie's past abuse and medical conditions.The spouses consented to the evaluations and the trial court appointed a GAL to represent Daughter.Both spouses submitted separate proposed parenting plans.The GAL also submitted a proposed parenting plan.

Following trial, the trial court issued its final judgment ("Judgment") dissolving the marriage between Danielle and Jamie, dividing property, awarding custody of Daughter, and ordering child support.

Based on the evidence at trial, the trial court awarded sole legal custody of Daughter to Danielle, but awarded joint physical custody of Daughter to both Jamie and Danielle.The trial court adopted the GAL's parenting plan, which it attached to the Judgment.The parenting plan provides for sole legal custody of Daughter to Danielle, and further states that "[m]ajor decisions affecting the child shall be made by Danielle: however, she shall confer with Jamie prior to making any final decisions regarding the minor child's health and welfare."As stated in the parenting plan, the trial court determined that granting Danielle sole legal custody was in the best interests of Daughter.

In dissolving property between the spouses, the division of Danielle's deferred compensation retirement plan (the "Plan") is relevant on appeal.The trial court awarded Jamie half of the marital portion of Danielle's vested account balance in the Plan as of the date of the Judgment.The trial court ordered that the Plan's administrator exclude any premarital contributions by Danielle for the purpose of determining the marital portion.The trial court also ordered that any increase in value of the account from the date of marriage to the date of the entry of Judgment be included when calculating the marital interest.The trial court awarded Danielle the remaining balance of the marital portion of her vested account balance in the Plan, less Jamie's half of the marital portion.At the time of the trial, Danielle's total interest in the Plan was $25,875.During litigation, Danielle borrowed $10,000 against the plan for payment of living expenses, childcare and attorneys’ fees, reducing the benefits in the Plan to $15,875.The Plan's balance before Jamie and Danielle's marriage was $11,213, and the trial court calculated that $4,661 was accumulated during the marriage.The Judgment did not otherwise refer to Danielle's $10,000 loan taken against the Plan.

The trial court also awarded child support.In determining the amount of child support, the trial court considered the parties’ wages and expenses as reported at trial in their submitted Form 14s.³The trial court rejected both spouses’ proposed Form 14s and prepared its own.

Danielle's gross wages at the time of the trial were $5,273 per month.Jamie was earning $23.52 an hour, resulting in gross earnings of $4,076 per month.Daughter attends work-related childcare three to five days per week at a cost of approximately $1,063 per month.At trial, Danielle affirmed that the $1063 per month "tuition" attributed to Daughter's daycare was "really work-related childcare" for Daughter.Jamie did not object to Danielle's testimony regarding the work-related childcare costs.However, in her post-trial motion, Jamie argued that the childcare costs should have been excluded from the trial court's child-support calculations.

The Judgment ordered child support paid by Jamie to Danielle for Daughter in the amount of $414 per month.In determining the amount of child support, the trial court attributed $1063 per month as the reasonable work-related childcare costs of Daughter paid by Danielle.

Jamie filed a post-trial motion to amend the Judgment.Relevant to this appeal, Jamie's post-trial motion challenged the trial court's award of sole legal custody to Danielle and the cost of Daughter's daycare relevant to the award of child support.Jamie's post-trial motions were denied by law ninety days after filing pursuant to Rule 81.05.⁴Jamie now appeals.

Points on Appeal

Jamie raises four points on appeal.At the outset, Jamie contests the trial court's authority to entertain any requests made by Danielle relating to custody or support of Daughter because she, and not Danielle, was Daughter's parent.Specifically, Jamie argues that she is the biological mother of Daughter, and that Danielle lacks standing to raise issues relating to custody and support of Daughter because Danielle is not Daughter's biological parent, is not a presumed natural parent of Daughter under Section 210.822, and Danielle never adopted Daughter during their marriage.In her second Point on Appeal, Jamie argues that the trial court erroneously divided the marital debt incurred by the parties during their marriage because the trial court disregarded a $10,000 loan Danielle took against her deferred compensation retirement plan during the litigation.In Point Three, Jamie maintains the trial court erred in issuing an inconsistent judgment which awarded Danielle sole legal custody of Daughter but also required Danielle to confer with Jamie before making any final decisions regarding legal custody issues.In her final point, Jamie contends that the trial court erred by ordering Jamie to pay Danielle $414 per month for child support because the trial court included Daughter's daycare as a "work-related childcare expense" when the childcare expense was in fact "tuition" that should have been excluded from the trial court's child-support calculations.

Standard of Review

In appeals from a dissolution of marriage, we must determine whether the trial court's judgment is unsupported by substantial evidence, against the weight of the evidence, erroneously declares the law, or erroneously applies the law.Lollar v. Lollar, 609 S.W.3d 41, 45–46(Mo. banc 2020)(citingMurphy v. Carron, 536 S.W.2d 30, 32(Mo. banc 1976) ).

We view the evidence and the permissible inferences in the light most favorable to the judgment, disregarding all contrary evidence and giving deference to the trial court.Schuman v. Schuman, 612 S.W.3d 232, 235(Mo. App. W.D.2020)(citingBlomenkamp v. Blomenkamp, 462 S.W.3d 429, 432(Mo. App. W.D.2015) );Mehra v. Mehra, 819 S.W.2d 351, 353(Mo. banc 1991).If the trial court did not make a finding on a specific issue of fact, we will consider it "as having been found in accordance with the result reached."Rule 73.01(c);A.O. v. V.O., 593 S.W.3d 130, 135(Mo. App. E.D.2020).

The trial court is "free to believe or disbelieve all, part, or none of the testimony of any witness."Schutter v. Seibold, 540...