Suesserman v. Suesserman, 37043
| Decision Date | 27 July 1976 |
| Docket Number | No. 37043,37043 |
| Citation | 539 S.W.2d 741 |
| Parties | Irwin Raymond SUESSERMAN, Appellant, v. Petra Virginia SUESSERMAN, Respondent. . Louis District, Division Four |
| Court | Missouri Court of Appeals |
Robert L. Brown, Arnold, for appellant.
Irwin Raymond Suesserman sued for dissolution of his mariage to Petra Virginia Suesserman. Now he appeals from a default judgment ordering dissolution and awarding Petra child maintenance in the sum of $87 per week, contending that the award is excessive.
His first point is that the court erred in permitting the filing of a letter from Petra relating to the case and in considering the letter as an answer to his petition. Appellant's first knowledge of the existence of the letter was when he discovered it incorporated in the transcript on appeal. The letter, addressed to 'Mr. C. B. Long,' purports to have been written by Petra, although her signature is omitted. The letter, addressed to this unidentified person, is unsigned, unacknowledged, uncertified and was never served upon Irwin or his attorney. It does not purport to be a formal answer to the petition. It should have been lodged in the file in circuit court but not filed in the case. In the letter reference was made to plaintiff's ability to make money as a musician. When Irwin was on the witness stand the court examined him with respect to his musicianship. We find no prejudice to Irwin arising out of his examination with reference to his musical experience and ability.
Appellant's principal point is that the court erred in awarding child support of $87 per week; that the award is grossly excessive in view of appellant's testimony that his take-home pay is only $182.50 per week and that after paying his personal living expenses only $55.85 per month remains available for child support, and his uncontroverted testimony that Petra grosses $160 per week and lives in a rent-free apartment.
Section 452.340, RSMo 1969 authorizes the court in a proceeding for dissolution of marriage to order either or both parents owing a duty of support to pay an amount reasonable or necessary for support of children born of the marriage, after considering all relevant factors, including the father's primary responsibility for child support; the financial resources of both parents' and of the children; the financial needs of the noncustodial parent; their standard of living; the physical and emotional condition and educational needs of the children.
The mother of the children, Petra, a resident of California, was served by publication. She defaulted and was not represented by counsel in the trial court and is not represented in this Court. The only testimony was offered by Irwin, the father. He is a gunsmith. He works for Browning Arms Company. His gross wages are $490.40 every two weeks. After deductions his take-home pay is $365.01 every two weeks or $182.50 per week net. He initially testified that he had no other source of income, but upon examination by the trial court revealed his considerable past experience in the field of music, as a professional drummer. At trial Exhibit A was marked, identified and presumably admitted in evidence and considered by the court. We are informed that Exhibit A is a list of appellant's estimated personal expenses and living costs and that it shows a net balance available for child support of $55.85 per month (the amount appellant is willing to pay). The difficulty is that Exhibit A has not been filed in this Court for our examination and consideration. This is the same situation encountered in Bryan v. Bryan, 452 S.W.2d 293 (Mo.App.1970). The burden of demonstrating error and the incorrectness of the judgment entered below is upon appellant. Parking Systems, Inc. v. Kansas City Downtown Redevelopment Corp., 518 S.W.2d 11 (Mo.1974); Massman Const. Co. v. Kansas City, 487 S.W.2d 470 (Mo.1972); Weston v. Great Central Ins. Co., 514 S.W.2d 17 (Mo.App.1974); State ex rel. Mayfield v. City of Joplin, 485 S.W.2d 473 (Mo.App.1972). Appellant having failed to file Exhibit A in this Court we are unable to make an independent determination of the reasonableness of the items of personal expenses appellant claims reduce the amount available for child support. In this situation we defer to the trial court's determination as to what amount is available for child support after deducting reasonable and necessary living expenses of the wage earner, for the reason that in the absence of an apparently important exhibit 'it must be presumed that its contents 'were favorable to the judgment entered and unfavorable to ...
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...evidence of actual outlays for food, clothing, shelter as well as for medical, dental and miscellaneous expenses. Suesserman v. Suesserman, 539 S.W.2d 741 (Mo.App.1976). By the same token in fashioning a decree for child support the trial court should consider the father's capacity to pay. ......
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