Toomey v. Toomey

• Decision Date: 06 July 1982
• Docket Number: No. 63433,63433
• Citation: 636 S.W.2d 313
• Parties: In re The Marriage of Alice TOOMEY, Appellant, v. James Michael TOOMEY, Respondent.
• Court: Missouri Supreme Court

Page 313

636 S.W.2d 313

In re The Marriage of Alice TOOMEY, Appellant, v. James Michael TOOMEY, Respondent.

No. 63433.

Supreme Court of Missouri, En Banc.

July 6, 1982.

Daniel P. Card, II, Clayton, for appellant.

Charles Alan Seigel, Jay L. Levitch, St. Louis, for respondent.

SEILER, Judge.

This case was transferred from the court of appeals, eastern district, after opinion. This court granted transfer on the husband's application to consider two questions: 1) is a support award that provides for the husband to pay all educational expenses of children and sets a minimum figure unenforceable by execution and thus void; 2) is the fact of a prior marriage between the parties a relevant factor for the trial court to consider in awarding maintenance? Portions of the court of appeals opinion are used here without quotation marks.

The parties had been married for more than twenty years prior to their 1975 divorce in Connecticut. ¹ Six children were born during this marriage. They remarried in Missouri on August 31, 1976. Wife filed a petition for dissolution on November 16, 1977, which was amended July 24, 1979. Four of the children were minors at the time of trial in the present action. Judgment was entered July 30, 1979.

At the time of trial, both parties were forty-nine years old. Respondent husband is a licensed physician employed by Washington University at Barnes Hospital and by the City of St. Louis at City Hospital. His gross income is $62,215.46. His monthly take-home pay after deductions which include $19.50 for life insurance and a $329.58 contribution toward a pension plan is $3,323.61. The $329.58 pension contribution is matched by Washington University. Wife is employed part-time as a hostess in a restaurant. Her gross income per month is $396.00 and her take-home pay is $314.00 per month. Husband's ordinary living expenses are approximately $1,509. Wife's estimate of her ordinary living expenses is $1,569. The cost of support for the four children is not clear. Wife listed $2,181 per month which allotted $691 to educational expenses. Husband put educational expenses at $645.53 per month. Wife's estimate of expenses for the children was incorrect in that it included the cost of food for one of the emancipated children who was living with her.

The principal items of property are the family residence and husband's interest in the pension plan. The residence has a value of $140,000 to $170,000, subject to a deed of trust of $40,000. Husband's testimony was that the pension plan was "the California type" (with no explanation as to what he meant), that it shows "a total of $39,849", that it is designed for retirement at age 65 and that "you cannot borrow or take it out." There is nothing in the record as to how the $39,849 figure was arrived at, nor is there a copy of the pension plan or any of its provisions. Husband is indebted to a bank upon a note for $29,400. Other property consists of a checking account, automobiles, and household furnishings.

Wife had been a registered nurse, licensed in Connecticut. She has not practiced her profession for 22 years and her license apparently has expired. She had not been happy in the work and does not intend to follow the profession in the future. The trial court took judicial notice that reciprocity existed between Connecticut and Missouri respecting nurses. Husband testified that refresher courses in nursing are available to persons whose licenses have expired. There was no direct evidence of the status of wife's license, no evidence of availability of positions, and no evidence with respect to the income a nurse could expect to receive. She testified that she was content with her present employment because it allowed her to be with the children who were still at home.

The trial court awarded maintenance to the wife in the sum of $350 per month for a period of five years, which coincides with the youngest child reaching twenty-one. In dividing the property, the court ordered the residence be sold for at least $150,000 within six months and the net proceeds divided equally; ² the pension fund, which had accumulated solely during the second marriage, was set aside to the husband without indicating whether or not it was marital property. The court granted custody of the minor children to wife and made an award of $150 per month as support for each of the four minor children ($600 total). The court made an additional award for support which requires the husband to pay all educational expenses.

Wife appeals the educational expense award which reads in part as follows:

In addition, Respondent to pay for each child all private school or college tuition and housing costs, said sum to total no less than $665 per month; said sums to be paid directly to the respective educational institutions at such time as Respondent receives statements therefor.

Petitioner wife asserts this order is void because the amount is too indefinite to be enforced by execution and, furthermore, invades the right of the custodial parent to determine how child support is to be allocated.

A trial court has broad discretion and flexibility in fashioning child support payments. The court must make an order that accommodates the needs of the minor children and the ability of the parents to meet those needs. Matheus v. Matheus, 612 S.W.2d 907, 908 (Mo.App.1981); Allison v. Allison, 540 S.W.2d 635, 636 (Mo.App.1976). It is apparent from the order that the trial court sought to make this accommodation.

At the time of trial, three of the minor children attended school. ³ The youngest two were in private high schools and one was in college. Dr. Toomey was paying an average of $665 a month for tuition and other expenses. Mrs. Toomey in her testimony indicated that she did not want to change the schools the children were attending, but wanted the money paid directly to her. ⁴ "I believe in education, but as far as that amount ($665) I think it is overdone." She testified that she wanted the children to get financial aid "because there is so much available now ...." Dr. Toomey testified that he wanted to and was able to pay for the education expenses of any of the children. His testimony indicated that if his children wanted to attend college he would pay all expenses for the colleges his children selected. Also, his employer Washington University will pay up to $2300 annually for tuition for each child at any college or university.

We do not find that paying the money directly to the respective institutions interferes with the right of the custodial parent to make education decisions. The minimum amount due was for the amount currently paid by Dr. Toomey to the institutions the children were attending. The order to pay the institutions directly is sensible. In this manner, Dr. Toomey can make arrangements with the institutions of the best means to meet the expenses. Furthermore, many items of child support are made directly to a third party and it is within the discretion of the trial court to order accordingly. E.g., In re Lineberry, 9 B.R. 700, 706 (Bkrtcy.W.D.Mo.1981) (payments to orthodontist); Niederkorn v. Niederkorn, 616 S.W.2d 529, 539 (Mo.App.1981) (payment to medical insurance company); Biggs v. Biggs, 397 S.W.2d 337, 338 (Mo.App.1965) (payments for private school tuition and camps).

The question remains whether the order is so indefinite as to the amount owed to be unenforceable by execution and thus void. The respondent was ordered to pay all tuition and housing costs, "said sum to total no less than $665 per month." As discussed above, the $665 figure represents the average monthly sum respondent was paying at the time of trial for the children's education.

Loomstein v. Mercantile Trust National Ass'n, 507 S.W.2d 669 (Mo.App.1974) and

Taylor v. Taylor, 367 S.W.2d 58 (Mo.App.1963), cited by appellant to support this contention, are distinguishable. In Loomstein, the provision to be enforced was that the father pay all college expenses without mentioning any sum or method of computation. The court held this to be unenforceable by execution, but added that the provision could well be a contractual obligation. Taylor was an attempt to enforce an alimony provision (25% of net income) under the old divorce law. Both cases are of questionable authority after the decision in Bryson v. Bryson, discussed below and Payne v. Payne, 635 S.W.2d 18 No. 63664 (Mo. banc, 1982).

A similar argument was made in Bryson v. Bryson, 624 S.W.2d 92 (Mo.App.1981). There, the husband was to pay the wife maintenance of $350 a month "or a sum equal to 33 percent of respondent's gross income from wages, whichever was greater." Id. at 94. This provision had been part of a separation agreement incorporated into the decree and thus was enforceable as a judgment. The court of appeals held that, although the amount of maintenance award was "facially uncertain," the maintenance provision was valid because the trial court upon motion could determine the amount due. Although Bryson involved a maintenance rather than a child support award, the philosophy of the court in finding a method...