Sportsman v. Sportsman

• Decision Date: 05 December 1966
• Docket Number: No. 24390,24390
• Citation: 409 S.W.2d 787
• Parties: Georgia SPORTSMAN, Appellant, v. Phillip SPORTSMAN, Respondent.
• Court: Missouri Court of Appeals

Page 787

409 S.W.2d 787

Georgia SPORTSMAN, Appellant, v. Phillip SPORTSMAN, Respondent.

No. 24390.

Kansas City Court of Appeals, Missouri.

Dec. 5, 1966.

C. B. Burns, Jr., Brookfield, for appellant.

Walter E. Allen, Brookfield, for respondent.

HOWARD, Judge.

This is an appeal from the action of the trial court in denying appellant's motion to modify a divorce decree by granting an increase in child support. The respondent husband originally filed his petition for divorce, but the divorce was granted on the cross-bill of appellant wife. The divorce was granted February 5, 1965, and the wife was given custody of three minor children, with an award of $125.00 per month as child support. The wife subsequently filed a motion to modify the decree by increasing the award for child support. A hearing on this motion was held May 8, 1965.

The evidence in the record before us is extremely sparse and many of the essential facts can be arrived at only by inference and deduction. We are not even presented with the contents of the divorce decree. However, it does appear that the three children, whose custody was awarded to the wife, were one boy, age 17, who was graduating from high school in the spring of 1965, and two younger girls, whose ages are not given, but one of them was referred to as 'the baby'. The husband was a railroad conductor, but he overlooked a train order and was 'pulled out of service' because of this dereliction on October 8, 1964. He testified that he lost five and one-half months work. It appears that under such circumstances he had no right to go back to work and could have been without railroad employment indefinitely and perhaps permanently. However, he did return to work as a railroad conductor some time prior to the hearing on the motion to modify, but after the divorce decree was granted. He was receiving no pay from the railroad at the time of the divorce decree. At the time of the decree, the husband was engaged in the pest control business and he was continuing to operate that business at the time of the hearing on the motion to modify. He testified that at the time of the divorce decree his income from the pest control business was 'practically nothing'. During the month of April, 1965, his gross income from the pest control business was $397.00 and he had contracts for monthly roach control services which amounted to $160.00 per month. At the time of the hearing, he was earning a little less than $500.00 a month as a railroad conductor. This was based on gross earnings of $750.00 for the last 45 days preceding the hearing.

The wife had been temporarily employed as a proof reader in a publishing house in a neighboring town, from which she received $50.00 per week, with a take home pay of $96.00 every two weeks. Apparently she secured this employment prior to the divorce decree but testified that it would terminate within two or three weeks after the hearing on the motion to modify. The 17 year old boy had part time employment after school and also did some work for his father at night and on weekends for which he received $2.00 per hour. The testimony concerning the exterminating business refers to 'boys' in the plural but no age is given for any other children of the marriage and the evidence does not reveal that the husband is supporting any other child.

The wife testified that the 17 year old boy desired to attend college in the fall of 1965, and that this would entail additional expense in the amount of $800.00 in fees for a year and together with room and board would total $1,700.00 to $1,800.00 per year, which she could not provide. She further testified that the children were out of clothes, and that other additional expenses would be necessary in the near future. In her testimony she intermingled her own individual expenses with those necessary for the children's support.

The husband testified to expenses in connection with his exterminating business far in excess of income. He commingled payments for child support, his railroad union dues and other personal expenses with his business expense. He was not represented by counsel at the hearing on the motion to modify, although he is represented by counsel on this appeal. It would serve no useful purpose to attempt to sift the evidence of expenditures, both because of the uncertainty resulting from the commingling above mentioned and because the itemizations were only partial and fragmentary. Furthermore, their reliability is questionable.

The husband, representing himself, undertook to cross examine the wife. This resulted in an inordinate amount of recrimination and bicketing. We conclude from this that neither party had lived up to the provisions of a property settlement agreement entered into at the time of the divorce decree. This was, of course, immaterial to any issue involved in the motion to modify the decree as to child support, but much of it was permitted over objection of the wife's counsel, with the statement by the trial court that it might reveal the wife's attitude. Such evidence should not have been admitted. The attitude of the wife is not determinative of, or material to, the issues of the needs of the children and the ability of the father to supply these needs. Even if the attitude of the wife should show reason for punitive action against her, this could not form the basis for punishing the children by refusing an increase in child support, which was otherwise shown to be necessary in their best interest. See Slaughter v. Slaughter, Mo.App., 313 S.W.2d 193.

In a matter such as this we must, on appeal, determine the facts from the record as in a trial de novo and render the judgment that should have been rendered. In this case there is no such conflict in the evidence as to call for us to defer to the finding of the trial court on such matters. See Hawkins v. Hawkins, Mo.App., 250 S.W.2d 817; Simmons v. Trenter, Mo.App., 327 S.W.2d 936; and Long v. Long, Mo.App., 357 S.W.2d 243.

In the present case the ability of the father to pay has radically changed since the date of the divorce decree. At that time he was laid off from his railroad employment for at least an indefinite period and received no income therefrom; he was apparently starting a pest control business, which was then bringing in practically no income. At the time of the hearing on the motion to modify, the husband was receiving a little less than $500.00 per month from the railroad, and his pest control business had progressed to the point where its gross income was $397.00 for the previous month and where he had a regular contractual income of $160.00 per month in such business. Even though we can not determine net income, this shows a marked change in the financial condition of the husband and his ability to adequately support his children. It appears that the wife and the three children in her custody were living in very overcrowded conditions in a small three room apartment about which the husband complained bitterly, and that her income from her temporary employment was...