Wiest v. Wiest

• Citation: 273 S.W.3d 545
• Decision Date: 25 November 2008
• Docket Number: No. SD 28672.,SD 28672.
• Parties: Katherine Adrian WIEST, Petitioner-Respondent, v. Gerald Vincent WIEST, Respondent-Appellant.
• Court: Court of Appeal of Missouri (US)

273 S.W.3d 545

Katherine Adrian WIEST, Petitioner-Respondent, v. Gerald Vincent WIEST, Respondent-Appellant.

No. SD 28672.

Missouri Court of Appeals, Southern District, Division One.

November 25, 2008.

Greggory D. Groves, Springfield, MO, for Appellant.

John R. Lightner, Springfield, MO, for Respondent.

JEFFREY W. BATES, Judge.

Gerald Wiest (Appellant) appeals from a judgment dissolving his marriage to Katherine Wiest (Respondent). Appellant contends the trial court erred in granting Respondent's request for retroactive child support and awarding her a portion of Appellant's military retirement benefits.

In this court-tried case, our review is governed by Rule 84.13(d). In re Marriage of Dolence, 231 S.W.3d 331, 333 (Mo. App.2007).¹ We must affirm the trial court's dissolution judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).² As the party challenging the dissolution decree, Appellant bears the burden of demonstrating error. Elrod v. Elrod, 192 S.W.3d 738, 740 (Mo.App.2006). This Court views the evidence and all reasonable inferences derived therefrom in a light most favorable to the prevailing party; contrary evidence and inferences are disregarded. Vanderpool v. Vanderpool, 250 S.W.3d 791, 795 (Mo.App.2008); In re Marriage of Gilmore, 943 S.W.2d 866, 871 (Mo.App.1997). We defer to the trial court's determination of the witnesses' credibility and the weight to be assigned to their testimony. Dolence, 231 S.W.3d at 333-34. "The trial court is free to believe all, none, or part of the testimony of any witness." Youngberg v. Youngberg, 194 S.W.3d 886, 889 (Mo.App.2006). The foregoing principles have been utilized in summarizing the facts presented at trial.

Appellant and Respondent were married in May 1991 in Neosho, Missouri. Respondent had two children from a prior marriage: John, who was born in February 1982; and Steffen, who was born in June 1987.³ Appellant adopted the children in November 1993. In January 2002, the couple lived in Rapid City, South Dakota. They separated, and Respondent moved back to Neosho, Missouri, with the children. Respondent and the children resided with her mother.

Respondent filed a dissolution petition in November 2003, but it was never served on Appellant. Although he had agreed to accept service, he failed to do so. Respondent did not seek formal service on Appellant because of his expressed intention to seek relief under the Servicemembers Civil Relief Act.⁴ In spite of Respondent's act of filing a dissolution petition, she hoped the marriage was not over. When the case did not move forward, Respondent voluntarily dismissed the petition. Thereafter, Appellant filed his own dissolution petition, but he agreed to voluntarily dismiss it after Respondent asked him to do so. In September 2005, Respondent filed another dissolution petition, but it, too, was eventually voluntarily dismissed. Appellant was putting off the dissolution because he wanted to get back together with Respondent.

While all of this was occurring, Appellant continued to provide support to Respondent and the children after the couple separated. The parties had a joint checking account to which Respondent had access. Appellant allowed Respondent to continue to make withdrawals from the account, and Appellant added new funds to the account as well. Between 2002 and 2006, Respondent withdrew approximately $116,000 from that joint account to pay living expenses and educational costs for herself and the children.⁵ Appellant was aware of these expenditures. During that same time frame, Appellant also directly paid another $54,000 in living expenses and educational costs for Respondent and the children.

When Respondent filed her third dissolution petition in January 2006, however, Appellant ceased providing any support and cut off Respondent's access to the joint checking account. As of that date, John was emancipated. Steffen had turned 18 in June 2005, but he was still attending high school in Neosho. In the first semester of his senior year of high school, he took an emergency medical technician (EMT) course at Crowder College (Crowder) and received six hours of college credit. Respondent told Appellant that Steffen was taking this EMT class at Crowder.

Steffen graduated from Neosho High School in the Spring of 2006.⁶ In May 2006, he enrolled for 12 credit hours of college classes at Crowder. Respondent did not inform Appellant that Steffen had enrolled as a regular college student at Crowder. Steffen worked 35 hours per week while attending college. He successfully completed nine credit hours during the Fall 2006 semester and enrolled for another nine credit hours during the Spring 2007 semester. Appellant did not receive a copy of Steffen's initial enrollment document(s), his transcript or any notice of how many credit hours Steffen was taking until March 2007.⁷ These documents were provided to Appellant only after he had propounded interrogatories requesting the information. Respondent testified, however, that Appellant learned Steffen was in college soon after the January 2006 dissolution petition was filed.

Appellant had served in the United States Air Force from 1973 to 1987. He left the military and obtained a medical degree. In 1994, he returned to the Air Force. He was still on active duty as of the date of trial. Because he had served at least 20 years in the military, he would begin receiving a monthly payment upon retirement. The amount of the monthly payment would depend upon his total years of service and his rank at retirement. Appellant asked that he be awarded 100% of these future payments by the court. Respondent asked that she be awarded a portion of these future payments.

The trial court ordered Appellant to pay child support for Steffen in the amount of $1,217 per month retroactively to January 1, 2006. Respondent was awarded a portion of Appellant's future military retirement benefits. The court entered a qualified domestic relations order that divided the future benefit payments according to this formula: (1) the number of years of Appellant's military service during the marriage would be divided by the number of whole years of total military service; (2) the total benefit payment would be multiplied by this fraction to determine the marital share of the payment; (3) Respondent and Appellant would each receive one-half of this marital share; and (4) the remainder of the benefit payment would belong to Appellant as his separate, nonmarital property.

Because the court divided the military benefits in this fashion, Appellant was awarded a greater share of the other marital property. There were no marital debts to be divided. Excluding the future military retirement benefits, the court awarded Respondent marital assets valued at $90,137 and ordered Appellant to pay Respondent an additional $15,000. Therefore, Respondent was awarded current net marital assets totaling $105,137. The court also set apart to Respondent her nonmarital property valued at $7,850. Excluding the future military retirement benefits, Appellant was awarded marital assets valued at $145,532. After accounting for the $15,000 payment to Respondent, Appellant was awarded current net marital assets totaling $130,532. The court also set apart to Appellant his nonmarital property, which consisted of $2,500 in personal property and the nonmarital portion of his future military retirement benefits. This appeal followed.

Point I

In Appellant's first point, he contends the trial court erred in ordering the payment of retroactive child support for Steffen because he was no longer a minor as of the date of trial, and Respondent failed to follow the requirements of § 452.340.5 so as to be entitled to continued child support payments while Steffen attended college.⁸ The trial court's authority to award child support in this case is governed by § 452.340, which gives the court the discretionary authority to award child support retroactively to the date the petition was filed. See § 452.340.1; Erickson v Blackburn, 169 S.W.3d 69, 79 (Mo.App. 2005). An appellate court will not reverse absent an abuse of discretion. In re Marriage of Reese, 155 S.W.3d 862, 875 (Mo. App.2005).

The first prong of Appellant's argument is focused upon Steffen's age because he was almost 20 years old when the judgment was entered. Unless a statutory exception applies, a parent's obligation to pay child support generally ceases when the child reaches age 18. § 452.340.3. The relevant exception is found in § 452.340.5. In pertinent part, this subsection states:

If when a child reaches age eighteen, the child is enrolled in and attending a secondary school program of instruction, the parental support obligation shall continue, if the child continues to attend and progresses toward completion of said program, until the child completes such program or reaches age twenty-one, whichever first occurs....

Id. Respondent's last dissolution petition was filed on January 12, 2006. At that time, Steffen was still attending Neosho High School. This Court holds that the trial court did not abuse its discretion by deciding to award Respondent retroactive child support while Steffen completed his secondary education. See § 452.340.5. The court did abuse its discretion, however, in awarding such support retroactively to January 1, 2006 because the start date of the award predated the filing of the petition. Id.

The second prong of Appellant's argument addresses Respondent's alleged failure to comply with the notice and reporting requirements of § 452.340.5 so as to be entitled to continued child support payments while Steffen attended college. Appellant bears the burden of proving that he is entitled to an abatement of child support due to such noncompliance. See Scott v. Clanton, 113 S.W.3d 207, 211-12 (M...