Wagner v. Wagner
| Decision Date | 01 February 1971 |
| Docket Number | No. 25428,25428 |
| Citation | 465 S.W.2d 655 |
| Parties | Nikia Ann WAGNER (Schulte), Plaintiff-Respondent, v. Tom Marshall WAGNER, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Louis Wagner, Kansas City, for defendant-appellant.
Hendren & Andrae by Henry Andrae, Jefferson City, for plaintiff-respondent.
On March 7, 1969, plaintiff was awarded a decree of divorce from defendant, on the ground of alleged indignities. Additionally she was granted custody of the one minor child of the parties, a boy, Robert Benjamin Wagner, 'subject to rights of defendant to reasonable visitation', and awarded child support in the sum of $200.00 per month.
On October 2, 1969, defendant filed a 'Motion to Modify as to Child Support' alleging that the award of $200.00 per month was unreasonable, unnecessary, and beyond his ability to pay; and, further, that plaintiff has denied him the reasonable rights to visit his child as allowed by the court. The motion prayed reduction of child support to $75.00 per month and specifically defined visitation rights, to-wit: 'from 10:00 A.M. on Saturday until 5:00 P.M., the following day, Sunday, of each week, and for a period of at least two weeks during the summer vacation and for such other reasonable times as the court may beem meet and proper.'
Defendant's motion was heard on October 23, 1969. On December 18, 1969, the trial court sustained the motion, reduced the child support allowance to $100.00 per month, and allowed visitation as follows: 'one weekend in two consecutive calendar months from 12 noon Saturday to 6:00 p.m. Sunday on 48 hours advance notice to plaintiff; right to take child to residence of defendant or to residence of paternal grandparents; for additional period of one week between June 1 and August 31; and for additional period of three days between December 18 and December 31, except that such three-day period shall not include December 24, 25 or 26.' Additionally, the court allowed plaintiff $150.00 for her attorney's fee. Only defendant has appealed from the modifying judgment.
Two questions are presented for decision in this review. Defendant contends that the trial court abused its discretion (1) by unduly restricting his reasonable rights of visitation with his child and (2) by entering the modified order requiring defendant to pay child support in an amount ($100.00 per month) in excess both of the child's needs and defendant's ability to pay. Defendant also complains of the allowance of $150.00 to plaintiff as her attorney's fee, on the ground that no written or oral request or motion was made for it. However, since plaintiff formally declares she has no desire to assert the validity of such allowance, we take no notice of the latter complaint.
Although plaintiff has not appealed from the judgment, she attempts to charge the trial court with error in modifying the decree as to defendant's visitation privileges on grounds that no substantial changed conditions subsequent to the original decree were shown, and that there was no showing the child's welfare required the modification. Plaintiff is satisfied with and urges our affirmance of the modified $100.00 child support award. It is a well recognized rule, and has been when only one party appeals from the judgment, when onlyone party appeals from the judgment, review is limited to contentions made by him, and allegations of error raised by respondent will not be considered. State ex rel. Caruthers v. Little River Drainage District, 271 Mo. 429, 196 S.W. 115, and numerous other cases digested in 3 Mo. Digest, Appeal and Error, k878. The rule is equally applicable to equity cases as well as law actions. In re Carlin's Estate, 226 Mo.App. 622, 47 S.W.2d 213; Junge v. Junge, Mo.App., 211 S.W.2d 733 (). Consequently, plaintiff will not be heard to complain against the modification of visitation privileges as ordered by the trial court, but is entitled to resist defendant's efforts to obtain further favorable modification by this court's decision.
At the time of the hearing on defendant's motion, he was twenty-three years of age--plaintiff, twenty-two. Their child was then several months past the age of three years. During the marriage, defendant had alternately engaged in employment and attended school. In 1966 he became stricken with Hodgkins disease, a severely disabling affliction. Thereafter, the parties and their child lived at the home of his parents for several months. Defendant has received extensive treatment as a patent at Ellis Fischell Hospital in Columbia for his malady, and, as an outpatient, still returns to that institution every three weeks for treatment. He also receives regular treatment in Kansas City.
In the fall of 1966, defendant and his family moved to Warrensurg, where they lived for a year (supported by the Wagners) and defendant attended school. In November, 1967, the family moved to Columbia, where defendant entered Ellis Fischell Hospital as a patient and plaintiff received employment at State Farm Insurance. Her income was insufficient to sustain the family of three and the 'deficiency' was supplemented by financial help from the Wagners. In plaintiff's words, 'Tom's parents did help us financially when either Tom nor I weren't working, or if we were.'
Sometime before plaintiff filed her divorce suit, defendant's malady had subsided sufficiently for him to return to work. Prior to the divorce hearing the parties entered into a property settlement agreement, which provided, in part, that defendant pay plaintiff child support in the sum of $200.00 per month, and that defendant would be allowed reasonable rights of visitation. Defendant was not represented when the property settlement was made, nor, having defaulted, was he present or represented by counsel when the divorce suit was heard on March 7th, 1969.
In September, 1969, he voluntarily terminated his employment and is now attending Rockhurst College. He has no income. His schooling is financed by his father and he is living at the home of his parents. His testimony indicated he would resume employment in February, 1970, inasmuch as he testified, 'I'm not going to be working until February, because I'm on a workstudy plan at school where you go to school a semester and you work a semester.'
At the time of the divorce plaintiff was working at Mid-Missouri Mental Health Center. In May following the divorce she married Carl Schulte, who was personnel director at her place of employment. Plaintiff, her present husband, and the child concerned now live in Jefferson City. Plaintiff is not employed but is attending school at Lincoln University. The child is left in the care of a babysitter for eight hours a day, a woman with seven children of her own, while plaintiff is at school. She pays the babysitter wages of $60.00 per month.
It is defendant's position that the conditions under which he has visited his child are not reasonably satisfactory or congenial; that misunderstandings have arisen as to the time and duration of his visits; and that plaintiff has unduly restricted the scope of his visitation. She has never permitted him to take the boy out of town or to have him overnight. Defendant is particularly distressed that she has never allowed him to take the child to the home of his parents in Kansas City, with whom he lives. Defendant testified:
Plaintiff resisted defendant's plea for such visitation privilege for several reasons. First, she undertook to asperse defendant's habits, temperament and general morality, relying in most part upon the grounds she had asserted as entitling her to a divorce. She also denigrated defendant's affection for and treatment of the child. Her evidence on those matters was controverted by defendant. Additionally, plaintiff claims that the child should not be 'exposed' to 'indulgent relatives for yet awhile' and should not be subjected to the 'unnecessary and dangerous highway travel' involved in the overnight visits the trial court has allowed. It ill behooves plaintiff to now disparage the influence of the boy's paternal grandparents and develop apprehension that his safety and welfare would be jeopardized by the highway travel necessary to accomplish the visits in question. Before the divorce and while the parties were still living together, plaintiff was content to leave the child in the sole care of defendant's parents regularly and often--once for a period of five days when plaintiff and defendant took a trip to California. During the year the parties lived in Warrensburg, defendant, accompanied by plaintiff and their child, drove practically every weekend (estimated by defendant at fifty times) to and from Kansas City, where they would 'go out' every night and leave the child with the Wagners. While living in Columbia, defendant drove to and from Kansas City, with plaintiff and their child, practically every month. On those occasions, the boy was again left in the care of defendant's parents for 'extended periods' of time. It is apparent from the record that defendant's parents have deep affection and concern for their grandson and that th...
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