Wenger v. Wenger

• Court: Missouri Court of Appeals
• Writing for the Court: SIMON
• Citation: Wenger v. Wenger, 876 S.W.2d 735 (Mo. App. 1994)
• Decision Date: 05 April 1994
• Docket Number: No. 62757,62757
• Parties: Mona Denise WENGER, Respondent, v. Steven W. WENGER, Appellant.

Page 735

876 S.W.2d 735

Mona Denise WENGER, Respondent, v. Steven W. WENGER, Appellant.

No. 62757.

Missouri Court of Appeals Eastern District, Division Three.

April 5, 1994.

Motion for Rehearing and/or Transfer to Supreme Court Denied May 4, 1994.

Application to Transfer Denied June 21, 1994.

Eisen, Gillespie & Hilton, Lawrence G. Gillespie, Webster Groves, for respondent.

David L. Campbell, St. Louis, for appellant.

SIMON, Presiding Judge.

Steven W. Wenger, father, appeals from an order of the trial court granting the motion of Mona Denise Wenger, mother, to modify a dissolution decree and denying father's amended cross-motion to modify. On appeal, father contends the trial court erred in (1) granting mother an increase in child support; (2) making the increase in support retroactive; (3) awarding mother attorney fees; (4) assessing guardian ad litem fees against him; and (5) denying his cross-motion to modify the temporary custody and visitation provisions of the dissolution decree. We affirm.

Mother and father were married on October 6, 1984. One child, Rebecca Lynn Wenger ("Becky"), was born of the marriage, on January 13, 1986. On July 21, 1987, mother and father entered into a separation agreement. With respect to custody of Becky the separation agreement provided, in pertinent part, that mother shall have primary physical custody, with father to have temporary physical custody on alternate weekends from 6:00 p.m. Friday to 7:00 p.m. Sunday, alternate holidays, Father's Day, two weeks during the summer upon notice to mother by May 15, and at such other times as may be agreed upon by mother and father. The agreement provided, however, that father's temporary custody, in all events, shall not coincide with the times father has custody of Laura Christine Wenger, father's child from a previous marriage. The agreement also provided that father shall at no time leave Becky unattended with, and in the physical custody of, his parents, William F. Wenger and Wanda Lee Wenger. The agreement also contained the following pertinent provisions: (1) father pays mother $310.00 per month for support of Becky; (2) father maintains medical, hospitalization and dental insurance for Becky and, additionally, is responsible for one-half of medical expenses not covered or paid in full by insurance; (3) father has the right to claim Becky as an exemption for federal and state income tax purposes provided he complies with the support and medical expense provisions of the agreement and provided also that he pays mother one-half of all amounts which he received under the returns as a result of his right to claim Becky as an exemption. The custody and support provisions were incorporated in the decree of dissolution, issued on July 21, 1987. On March 30, 1990, mother filed a motion to modify the dissolution decree seeking an increase in child support, and seeking an order for father to pay a proportionate share of any work related day care expenses incurred by mother for Becky, retroactive to the filing of the motion to modify. Mother's motion to modify also sought an order for father to pay her attorney fees and for costs to be taxed against father.

On June 12, 1990, father filed a cross-motion to modify, seeking to remove the dissolution decree's custody restrictions regarding father's other daughter and regarding father's parents. Father's cross-motion to modify also sought to modify the dissolution decree by: (1) allowing father to claim Becky as a dependent for income tax purposes without paying any sums to mother in connection with that right; (2) deleting the provisions requiring father to pay one-half of medical expenses not covered or paid in full by insurance; (3) allowing father to give written notice at least thirty days in advance of the summer temporary custody he will exercise, instead of on May 15; (4) granting father temporary custody of Becky from 10:00 a.m. Saturday to 7:00 p.m. Sunday on alternate weekends, and on Wednesday from 5:00 p.m. until 8:00 p.m. on those weeks father works the midnight shift; and (5) increasing father's summer custody of Becky from two weeks to four weeks. Father's cross-motion also sought an order pursuant to § 452.342 R.S.Mo.Cum.Supp.1993 (all further statutory references are to R.S.Mo.Cum.Supp.1993 unless otherwise noted) requiring mother to furnish father with a regular summary of expenses paid by her on behalf of Becky.

On September 9, 1991, father filed an amended cross-motion to modify stating that since the date of the dissolution decree, there have been changed circumstances so substantial and continuing as to make the terms of the decree unreasonable, including: (1) mother cohabitates with a male person, to whom she is not married, who has repeatedly engaged in and continues to engage in acts of violence and various criminal activities in the presence of Becky; (2) mother has failed to keep her home reasonably safe in that said home is structurally unsound and unsanitary at all times when the minor child is present and in the custody of mother; (3) upon information and belief, mother has subjected the minor child to or has knowingly allowed Becky to be subjected to physical, sexual and emotional abuse and continues to do so; (4) mother has repeatedly and unreasonably withheld and interfered with father's rights to visitation with and temporary custody of Becky and has intentionally attempted and continues to attempt to alienate the affections of Becky away from father. Father's amended motion sought an order modifying the dissolution decree as follows: (1) father have sole care, custody and control of Becky; (2) mother not be allowed temporary custody of Becky; (3) mother not be allowed visitation with Becky except under supervision as directed by the court; (4) mother be ordered to pay father a reasonable sum for child support, retroactive to the date of the filing of father's amended cross-motion to modify; (5) mother be ordered to make all future payments of child support to the clerk of the court as trustee and that mother execute an assignment of wages for this purpose; (6) mother be enjoined and forbidden to allow Becky to be in the presence of mother's male cohabitant under any circumstances.

After a hearing, at which the interests of Becky were represented by a guardian ad litem, the trial court sustained mother's motion to modify and denied father's amended cross-motion. The trial court modified the order of child support contained in the dissolution decree and ordered father to pay mother $520.00 per month for the support of Becky, retroactive effective January 1, 1991. The trial court's order noted that the child support amounts were determined in accordance with authorized support guidelines. The trial court also ordered father to pay mother's attorney $4000.00 as and for attorney fees, and ordered father to pay $2371.00 to the guardian ad litem as and for attorney fees. This appeal follows.

Our review is governed by the well-known principles of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We will affirm the trial court's judgment unless there is no substantial evidence to support it, unless it is against the weight of evidence, or unless it erroneously declares or applies the law. Id. at 32[1-3]. Further, "[a]s trier of fact, it is the function, indeed the duty, of the trial court to decide the weight and value to be given to the testimony of any witness. On appeal, we view the evidence in a manner favorable to the decree and disregard contradictory evidence." Wynn v. Wynn, 738 S.W.2d 915, 918 (Mo.App.1987). "We defer to the trial court even if the evidence could support a different conclusion." Id. Since no findings of fact or conclusions of law were requested or issued, we deem all facts to be found in accord with the trial court's order. Cornell v. Cornell, 809 S.W.2d 869, 874 (Mo.App.1991).

In his first point, father claims the trial court erred in granting mother an increase in child support from $310.00 to $520.00 per month because there was no change in circumstances shown so as to justify such a modification, and the increase exceeded the amount provided by the chart, exceeded the amount requested by mother, and exceeded the amount necessary for the support of Becky.

With respect to modification of child support obligations, this court has stated:

It is axiomatic that the provisions regarding child support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms of the original decree unreasonable. In determining what constitutes substantial and continuing change of circumstances, the court is to consider all financial resources of both parties, including the extent to which their expenses should be shared by a present spouse. The burden is upon the party seeking modification to establish the changed circumstances. However, if the current support deviates from the support prescribed by the guidelines and the criteria set forth in Rule 88.01 by twenty percent or more, a prima facie case of a ... change in circumstances so substantial and continuing as to make the present terms unreasonable has been established. Once this is established, the trial court must determine a new child support obligation in conformity with Rule 88.01.

Rule 88.01 directs the trial court to consider all relevant factors, including the following criteria: (1) the financial resources and needs of the child; (2) the financial need and resources of the parents; (3) the standard of living the child would have enjoyed had the marriage survived; (4) the physical and emotional condition of the child; (5) the educational needs of the child. Rule 88.01 specifies that there is a rebuttable presumption that the amount of child support calculated pursuant to Civil Procedure Form No. 14 is the amount of child support to be awarded. The Rule further specifies that this presumption is rebutted if the trial court enters...