Sleater v. Sleater

• Decision Date: 27 February 2001
• Citation: 42 S.W.3d 821
• Parties: (Mo.App. E.D. 2001) June Sleater, Respondent/Cross-Appellant, v. William Sleater, Appellant/Cross-Respondent. ED77541 0
• Court: Missouri Court of Appeals

42 S.W.3d 821 (Mo.App. E.D. 2001)

June Sleater, Respondent/Cross-Appellant, v. William Sleater, Appellant/Cross-Respondent.

ED77541

Missouri Court of Appeals Eastern District

02/27/2001

Appeal From: Circuit Court of St. Louis County, Hon. George W. Draper, III

Counsel for Appellant: Bruce F. Hilton

Counsel for Respondent: Jody H. Wolff

Opinion Summary: William Sleater (husband) appeals from the trial court's judgment and decree of dissolution of marriage, claiming the trial court erred in its award of maintenance, child custody and support, property division, and attorney's fees. June Sleater (wife) cross-appeals, asserting the court erred in its division of marital property, failure to award retroactive child support and maintenance, ordering wife to contribute financially to her children's educational and medical needs, and division of tax dependency exemptions and tax refunds. Husband also appeals the trial court's grant of wife's attorney's fees on appeal.

Division Two holds: This Court remands to the trial court to indicate whether the maintenance award is subject to future modification in compliance with section 452.335.3 RSMo 1994. Also, because the trial court rejected the parties' proposed parenting agreement and ordered its own custody plan, this Court remands for the trial court to make written findings detailing the specific relevant factors (1) making its plan in the best interest of the children, and; (2) resulting in the rejection of the parties' proposed agreement pursuant to section 452.375.6 RSMo (Supp. 1999). In all other respects, this Court affirms the judgment and decree of dissolution.

Clifford H. Ahrens, Presiding Judge

William Sleater ("husband") appeals from the trial court's judgment and decree of dissolution of marriage, claiming the trial court erred in its award of maintenance, child support, property division, and attorney's fees. June Sleater ("wife") cross-appeals, asserting the court erred in its division of marital property, failure to award retroactive child support and maintenance, ordering wife to contribute financially to her children's educational and medical needs, and division of tax dependency exemptions and tax refunds. Husband also appeals the trial court's grant of wife's attorney's fees on appeal. We affirm in part and reverse and remand in part.

The marriage of husband and wife was dissolved on November 22, 1999. Although neither party requested that the court file findings of fact and conclusions of law, the court included such findings and conclusions in its judgment. The parties have three children who were ages 18, 16, and 12 at the time of trial. The trial court awarded wife $400.00 per month for maintenance. In addition, the court prepared its own Form 14 and awarded wife child support in the amounts of $950.00 for three children, $822.00 for two children, and $532.00 for one child.

Husband filed a motion for new trial or in the alternative, to amend judgment or hear additional evidence, claiming he was fired from his job due to company restructuring. Wife also filed a motion for new trial, or to amend or alter judgment. On February 15, 2000, the trial court, pursuant to the post-trial motions, amended the child support to $677.00 for three children, $575.00 for two children, and $391.00 for one child and changed the valuation date of the Charles Schwab account to the date of dissolution.

Husband and wife both appealed. Thereafter, wife filed a motion for her attorney's fees on appeal and on March 28, 2000, the trial court granted wife's motion and ordered husband to pay $2,750.00 on wife's attorney's fees. Husband timely appealed. The three appeals were consolidated.

Husband raises numerous claims of error in nine points and sub-points on appeal.¹ Two of husband's claims of error require remand. Husband claims in his second point relied on that the trial court erred in failing to state whether the maintenance was a modifiable order.² Wife concedes error. Section 452.335.3 RSMo 1994³ provides that the "maintenance order shall state if it is modifiable or nonmodifiable." The trial court entering the judgment and decree of dissolution is required to indicate whether the order for maintenance is subject to future modification. Whitworth v. Whitworth, 878 S.W.2d 479, 485 (Mo. App. 1994). "Reversible error results when a judgment awarding maintenance does not designate the award as either modifiable or non-modifiable." Goodin v. Goodin, 5 S.W.3d 213, 219 (Mo. App. 1999). Here the trial court failed to make such designation.

In his ninth point, husband asserts the trial court erred in ordering a different physical custody arrangement than the one the parties had originally agreed to. The parties' pre-dissolution agreement stated that they would share joint legal and physical custody of their three children. If the parties could not agree as to physical custody of the youngest child, then the parties would alternate physical custody of the child every two days during the workweek, every other weekend during the school year, and four weeks each during the summer. The parties asked the court to incorporate their custody agreement into the dissolution decree. The trial court did award joint legal and physical custody to husband and wife. However, it did not include the parties' agreement in the decree. Instead, the trial court's judgment granted wife the primary physical custody of the children, with husband to have custody one night each week, alternating weekends, and six weeks during the summer, divided into three 14 consecutive day periods.

The statute vests the trial court with discretion to order a child custody plan in accordance with the best interests of the child. Section 452.375.2 and section 452.375.9. "The trial court has broad discretion in making provision for child custody and we will not interfere with the trial court's decree unless the welfare of the children compels such interference." Schwartzkopf v. Schwartzkopf, 9 S.W.3d 17, 21 (Mo. App. 1999). Parent's wishes as to children's custody, though relevant, are not binding on the trial court. In re Marriage of Chorum, 959 S.W.2d 900, 903 (Mo. App. 1997). Agreements between parents that concern minor children are merely advisory. Id. Here, the trial court did have authority to order a different parenting plan.

However, husband additionally claims that the trial court did not comply with section 452.375.6 RSMo (Supp. 1999) when it rejected the parties' parenting plan and created its own. Section 452.375.6 RSMo (Supp. 1999) provid...