Loetel v. Loetel

KENNEDY, Judge. Trial court modified child support and visitation provisions of decree by reducing father’s child support obligation for two children (Christine, 7, and Stephanie, 9,) from $450 to $300 per month; and by ordering mother to provide transportation for children from her home in Springfield, Missouri, to father’s home in Platte County for visits, he to furnish return transportation. The original decree had provided for father to provide transportation both ways. Modification reduced number of visits, but extended length of visits. The mother has appealed. We affirm the judgment. The evidence showed the following changes in circumstances since the original decree: The mother had settled a claim for damages for medical malpractice in her own behalf and in behalf of one of the children, seven-year-old Christine, who was severely disabled as a result of the alleged malpractice. By the terms of the settlement, the defendants paid to the child $264,800 in cash and in addition thereto the beginning sum of $2,000 per month, increased at a compound rate of 3% per annum until the child reached age 18. (In the tenth year the monthly amount would be $2,610.) At age 18 she was to receive a beginning sum of $4,000 per month for life, also increased at a compounded annual rate of 3% per annum. (In the 20th year, the monthly amount would be $7,016, in the 40th $12,-668.) The payments were guaranteed for 30 years with respect to one-half the annuity payments and for 32 years with respect to the other half. If the child dies before those respective guaranteed periods have passed, the remaining payments will be paid to the mother. The mother in her own behalf received $10,000 “up front” and then $15,000 per annum for 30 years. There is no evidence about attorney’s fees by which the settlement figure was reduced. We rather think from the testimony that the attorney’s fees came from the up-front cash, and none from the annuities. The father received nothing in the settlement so far as the evidence shows. The mother says the trial court should not have considered the amounts received by the child in settlement of the personal injury claim. We think the mother is wrong in this contention. Section 452.340, RSMo 1978, lists the child’s resources as a factor to be considered in fixing child support. A change in the child’s resources may be considered by the trial court upon motion to modify, especially where it is alleged as a reason for modification of child support. The language in § 452.370, RSMo Supp.1984, which says the court upon motion to modify shall consider “all financial resources of both parties, including the extent to which the reasonable expenses of either party are, or should be, shared by a spouse or other person with whom he or she cohabits, and the earning capacity of a party who is not employed” does not limit the subjects which the court may consider; the court is not confined to those subjects which are expressly mentioned in § 452.370 but obviously may consider a wide range of circumstances which bear upon the amount of child support. The mother’s case of In Re Marriage of Hoak, 364 N.W.2d 185 (Iowa 1985), does not support her position. There the court held that the custodial mother should not be required to convert to cash certain non-income producing stock of a closely-held corporation, which stock had been received by the children as a gift from the father before the divorce, in order to relieve a well-to-do father of child support payments in whole or in part. The court does recognize, however, that “[t]he children’s resources should be considered” and [237] also says: “[W]e consider that it would not be inappropriate if [the mother] would use the income from the present accounts which provide interest or dividends, including the Heritage preferred stock, for the support of the children.” Hoak, 364 N.W.2d at 190-91. See also Trunko v. Trunko, 642 S.W.2d 673, 677, n. 7 (Mo.App.1982), regarding use of custodial funds set aside for the express purpose of education of the children in the event of husband’s death or disability. In the present case, there is no restriction upon the use of the child’s funds received in the personal injury settlement. The evidence indicates that the funds were in a guardianship estate under the supervision of the Probate Court. They would be available for the child’s support, § 475.125.-1, RSMo Supp.1984. It is noted that the court has not eliminated the father’s child support obligation, but has simply reduced it. Of course there is no question that the mother’s resources from the settlement are entirely proper for the court’s consideration, §§ 452.340(3) RSMo 1978; 452.370.1, RSMo Supp.1984. She had been earning $15,000 per year as a legal secretary before the settlement. She has quit that employment, but from January 1 to September 24, 1984, she had earned about $1,000 as a real estate agent. Christine’s needs do not put employment out of the question for the mother, should she desire to take employment. Christine attends public school. She has made marked improvement. Her sister, Stephanie, age nine, sometimes cares for Christine for brief periods in her mother’s absence, as does mother’s present husband. Another factor which has changed since the original decree is the mother’s remarriage. Her new husband earned $15,234 in 1983, as shown by his income tax return. His income must be considered by the court under § 452.370.1, RSMo Supp. 1984. The support for which the mother may look to her spouse directly bears upon her own resources which are available for the support of the children. The wife objects to evidence of or consideration by the court of the reduction in husband’s income from $21,640 per an-num at the time of the original decree to $19,476 at the time of the modification. It is true that this reduction in income was not pleaded in his motion to modify as a change of circumstances, but we do not understand the husband to be relying upon the reduction in income to justify the child support modification. He relies mainly upon the personal injury settlement. The wife is probably correct in arguing that this 10% reduction in the husband’s income would not support a reduction in child support payments. Magaletta v. Magaletta, 691 S.W.2d 457 (Mo.App.1985); Ward v. Ward, 534 S.W.2d 593 (Mo.App.1976). Excluding any consideration of the husband’s income reduction, however, there is still enough evidence in this record to support the trial court’s decision. Nonetheless, it was required by statute, § 452.340(6), RSMo 1978, and § 452.370.1, RSMo Supp. 1984, that the court consider the husband’s resources and it was perfectly in order for him to hear and to take into account evidence of the husband’s present income, whether more or less than it was at the time of the original decree. The mother since the original decree, upon her remarriage, had moved from Platte County, the place of her former residence and that of the husband, to Springfield, Missouri. The evidence fully justifies requiring the mother to furnish the children’s transportation one way upon less frequent visits to the father’s home. The evidence on this point does not require close examination in this opinion. The judgment is affirmed. TURNAGE, J., concurs. CLARK, C.J., dissents in separate opinion.