Court of Appeals of Missouri, Eastern District, Southern Division
PAUL L. PASTERNAK, Appellant,
DENISE M. PASTERNAK, Respondent
from the Circuit Court of St. Francois County. Honorable
Shawn R. McCarver.
APPELLANT: Christina L. Kime, Piedmont, Missouri.
RESPONDENT: Lawrence G. Gillespie, Gillespie, Hetlage &
Coughlin, L.L.C., Clayton, Missouri.
M. Hess, Judge. Lisa S. Van Amburg, C.J., concurs. James M.
Dowd, J., dissents in separate opinion.
M. Hess, Judge.
Pasternak (Father) appeals the trial court's judgment
awarding Denise Pasternak (Mother) $12,500 in attorney's
fees. In two points on appeal, Father claims that the trial
court erred in ordering Father to pay Mother's
attorney's fees because (1) the judgment was prohibited
by § 452.377.13, which precludes the award of
attorney's fees against any party who objects in good
faith to the relocation of the child's principal
residence, and (2) the judgment was not supported by
substantial evidence. We affirm.
Modification and Relocation Proceeding
and Father previously divorced and shared custody of their
children. In September 2012, Mother filed a motion to modify
child custody seeking sole legal and physical custody of the
children. Father objected to the motion. In May 2013, before
a hearing on the motion to modify, Mother filed notice of
proposed relocation, seeking to relocate the parties'
children from Farmington, Missouri to Silva, Missouri,
approximately 50 miles away. Father objected to the proposed
relocation and filed a counter-motion to modify, also seeking
sole legal and physical custody of the children. In August
2013, the trial court granted the relocation and gave Mother
sole legal custody of the children. Mother and Father
retained joint physical custody, but the court modified the
custody schedule. Mother requested attorney's fees for
these trial proceedings, which the trial court denied, noting
Father's good faith objection to the relocation.
appealed the trial court's judgment regarding both
relocation and custody (hereinafter, " 2013 appeal"
). After this Court's decision in August 2014, the case
was transferred to the Missouri Supreme
Court. The Supreme Court affirmed the trial court's
judgment, concluding that substantial evidence supported
relocation and modification of custody. See
Pasternak v. Pasternak, 467 S.W.3d 264 (Mo. banc
for Attorney's Fees for 2013 Appeal
2014, Mother filed a motion requesting $23,750 in
attorney's fees for the cost of the 2013
appeal. The parties stipulated that their
incomes, expenses, assets and liabilities were the same from
the time of 2013 modification and relocation proceeding
(hereinafter, " 2013 modification proceeding" ),
and neither party presented any additional evidence.
Mother's attorney testified that " probably a third
of [the total bill] would go toward relocation, and the rest
of it was just -- was maybe a mix." The trial court
suggested that Mother's attorney submit a bill
identifying his hours devoted to relocation, but the attorney
stated that because he did not " necessarily identify
what issues I [was] reviewing at any particular point,"
the one-third estimate was " as good as we're going
the hearing, the trial court awarded Mother $12,500 in
attorney's fees for the appeal. In its judgment, the
trial court noted that Father did not challenge relocation
alone in the 2013 appeal, but also raised points concerning
custody modification, including his request for sole legal
and physical custody. The trial court also considered "
all relevant factors, including but not limited to, the
merits of all aspects of [Father's] case on appeal."
Father appeals the award of attorney's fees.
will reverse the trial court's award of attorney's
fees only upon the showing of an abuse of discretion.
Aubuchon v. Hale, 453 S.W.3d 318, 325 (Mo. App. E.D.
2014). " To demonstrate an abuse of discretion, the
complaining party must prove that the award is clearly
against the logic of the circumstances ...