Smith v. Smith

• Decision Date: 25 October 1977
• Docket Number: Nos. 37637 and 38921,s. 37637 and 38921
• Citation: 558 S.W.2d 785
• Parties: Dixie J. SMITH, Respondent, v. Kenneth W. SMITH, Sr., Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 785

558 S.W.2d 785

Dixie J. SMITH, Respondent, v.Kenneth W. SMITH, Sr., Appellant.

Nos. 37637 and 38921.

Missouri Court of Appeals, St. Louis District, Division Four.

Oct. 25, 1977.

Maniscalco, Clancy, Pittman & Bagot, George J. Bagot, Clayton, for appellant.

Klutho, Cody & Kilo, Attys., Inc., Edward C. Cody, St. Louis, for respondent.

NORWIN D. HOUSER, Special Judge.

In November, 1973Dixie J. Smith filed a motion to modify the March, 1970 order awarding her $25 per week for the support of 11-year-old Barbara Ann, child of her marriage with Kenneth Smith.She sought an increase on the basis of increased cost of living, decreased purchasing power of the dollar and an increase in her ex-husband's ability to pay.She also asked for attorney fees and expense money.In January, 1974 the ex-husband filed a countermotion to modify.He sought a reduction on the basis of a decrease in his earnings, and an order requiring the ex-wife to contribute to the support of the child because of her financial ability in view of the fact that since the divorce she had obtained employment and financial independence.He also asked for an order requiring the ex-wife to pay his attorney fees and "costs of litigation and costs of court."

During four days in August and September, 1974 the two motions were tried to the court.In July, 1975the court sustained Dixie Smith's motion and overruled Kenneth Smith's motion, and made an order requiring the ex-husband to pay $40 per week for child support.Barbara Ann was then 16 years old.The ex-husband appealed the orders made on both motions.The ex-wife filed a motion for attorney fees and expenses to be incurred on appeal.The court sustained that motion and allowed $750 attorney fee and $75 expenses.The ex-husband appealed this separate order.The two appeals were consolidated and

will be disposed of in one opinion.Case No. 37637

On the Motions to Modify the Order Relating toChild Support

Examination of the lengthy pleadings, interrogatories, answers to interrogatories and exhibits, including numerous individual and corporate income tax returns, bank ledger sheets, financial statements, and other documents, the 354-page transcript and sixty pages of appellate briefs leads inevitably to the conclusion that the trial court's order increasing the child support by $15 per week was inadequate and that the father is financially able to meet the actual necessities of the situation.

Kenneth Smith is a real estate broker who does business through a wholly-owned, one-man corporation.He owns a number of income-producing properties, having acquired three such properties since 1970.He has also built himself and his new family a $30,000 home in Ladue on a lot which cost $10,000.Gross rentals from his real estate holdings approximate $50,000 per year.His borrowings require sizeable payments of principal and interest.Gross cash receipts increased each year:

Year Ending  Total Cash Receipts
                 6-30-1970              $ 67,612
                 6-30-1971               172,824
                 6-30-1972               183,389
                 6-30-1973               254,317
                

He conceded nontaxable income in the form of depreciation taken on his personal tax returns as follows: 1970, $10,000; 1971, $10,000; 1972, $10,500; 1973, $10,647.Records show his equities in various properties are increasing at the rate of $10,200 annually because of the large annual payments he is devoting to the reduction of indebtedness.These payments run about $3,500 to $4,000 per month.He admitted his total indebtedness against his real estate was reduced by the sum of $29,974 during the first eight months of 1974.His financial statement as of January 1, 1974 showed assets of $448,121 (including real property interests valued at $429,000) and liabilities of $381,373, thereby showing a net worth of $66,747.Corporate tax returns show an increase in the value of the corporate assets from $38,000 on June 30, 1971 to $101,225 on June 30, 1974.Since the 1970 divorce he has bought 500 shares of General Dynamics stock valued at $10,000; has kept his 100 shares of TWA, and other stocks; has acquired three parcels of income-producing property, built a new home and reduced his mortgage indebtedness by $10,000 or more each year.He testified that his living costs were $10,200 per year for himself, his new wife and her child.

Dixie Smith received $20,000 alimony in gross at the time the divorce was granted in 1970.At that time she was not employed.The $20,000 had dwindled to $3,200 in 1974.At the time of trial she was employed.Her monthly take-home pay was $553.90 per month.Her net income as shown on her 1973 income tax return was $6,825.

There is undisputed evidence that the expense of maintaining Barbara Ann and supplying her needs of food, clothing, medical and dental care, laundry and cleaning, and for recreation, school and personal items in 1974 was $323 per month.

Appellant contends that it was error to modify the child support award upwards because there was a failure to prove either a need for greater support, or that his ability to pay had so changed as to make the original award unreasonable.He claims that the real estate market had been depressed; the real estate business bad; that he has had no income from his real estate company since 1970; that while at time of trial in 1970he had a job and a salary of $13,300, in 1974he had no salary and no income except rental income (which was less than in 1970); that his debts were greater in 1974 than in 1970; that he was living on money borrowed on his life insurance policies; that a $40 weekly award is unreasonably high and constitutes a manifest abuse of discretion.Appellant points out that the ex-wife is working and has an income but he makes no contention that the court should have entered a child support order against her.We are aware of the rule that when only one party appeals, review is limited to contentions made by the appellant; that allegations of error made by respondent will not be considered, and a respondent's complaints about a modification of an order in a domestic relations case will not be heard.Wagner v. Wagner, 465 S.W.2d 655, 657(1, 2)(Mo.App.1971);3 Mo.Dig. Appeal and Error k878(6).The ex-husband alone has appealed these two orders; the one increasing the child support award, the other denying a reduction of the amount awarded.The ex-wife did not appeal either ruling, and therefore allegations of error made by the ex-wife would not be heard.In defending these appeals, however, the ex-wife has not alleged error or complained about the rulings.To the contrary, in the concluding sentence of her brief she states that the trial court ruled correctly, and the decision should remain undisturbed, "unless in the interests of justice, this Court should order Appellant to pay an additional amount of child support on the grounds that needs of the child dictate such action and ability of Appellant to pay requires such payment."

Appellant's first two points on appeal raise the question of the need of Barbara Ann for increased financial support, and whether the amount awarded is "unreasonably high in relation to * * * appellant's income and earning capacity and accordingly constitutes a manifest abuse of discretion * * * ."By thus inviting appellate review of the question "How much?"appellant has opened the issue of the amount of money required to promote the welfare of the child, consistent with the financial ability of appellant to pay.We deal here with the sole issue of support for a minor child.This appeal does not involve maintenance or a division of the marital property.Where support of a minor child is involved we are not bound by any agreement of the parties or by a particular judgment of the trial court.The guiding star for our decision is the welfare of the minor child.Once the welfare of the child is in judgment the court must make the necessary orders to promote that welfare, within the indicated limitation, and technical considerations must give way to that overriding consideration.¹Tried to the court without a jury, these cases are to be reviewed both on the law and the evidence as in cases of an equitable nature.Rule 73.01 3.(a);§ 510.310(4), RSMo 1969.We must " * * * give such judgment as (the trial court) ought to have given, as to (us) shall seem agreeable to law,"Rule 83.13(c), and not only order a reduction if we find the amount excessive but also order the amount increased if we find the award inadequate to meet the reasonable needs of the child, Richter v. Richter, 532 S.W.2d 903(1, 2)(Mo.App.1976), and that appellant has the financial ability to pay an increased amount.

There is ample evidence of changed conditions making the...