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Librach v. Librach

Court of Appeals of Missouri, Eastern District, Fourth Division

May 14, 2019

DONNA LYNN (TATE) LIBRACH, Appellant,
v.
STANLEY L. LIBRACH, Respondent.

          Appeal from the Circuit Court of St. Louis County Honorable Sandra Farragut-Hemphill

          KURT S. ODENWALD, PRESIDING JUDGE.

         Introduction

         Donna Lynn (Tate) Librach ("Mother") appeals from the trial court's 2018 judgment (the "2018 Final Judgment") awarding joint physical and legal custody of youngest child ("A.L.") to Mother and Stanley L. Librach ("Father"), emancipating and eliminating child support for oldest child ("J.L."), awarding Father make-up visitation for A.L., and denying Mother's request for attorneys' fees. On appeal, Mother raises three points. In Point One, Mother alleges that the trial court erred in sua sponte statutorily emancipating J.L. and reducing child support to only one child. In Point Two, Mother asserts that the parenting plan is against the weight of the evidence because the trial court did not give proper weight to the recommendations of the guardian ad litem (the "GAL"), and the trial court plainly erred by not allowing the children to testify. In Point Three, Mother claims that the trial court abused its discretion when it denied her motion for attorneys' fees.

         The record before us lacks sufficient evidence regarding J.L.'s education to support the trial court's finding of emancipation. However, the record demonstrates that the parenting plan entered by the trial court was not against the weight of the evidence, and that the trial court did not abuse its discretion in denying Mother's request for attorneys' fees. Accordingly, we affirm in part and reverse and remand in part for the trial court to modify Father's obligation for child support consistent with this opinion.

         Factual and Procedural History

         Mother and Father married and had two children; J.L. and A.L. Mother and Father divorced in 2008. The judgment and dissolution decree awarded Mother and Father joint legal and physical custody of J.L and A.L. The original judgment was modified in 2011 (the "2011 Modification") to implement a new parenting plan. The 2011 Modification awarded Father Tuesday overnights and every other weekend from Friday evening until Monday morning during the school year. During the summer months, Father was awarded five weeks of custody. Pursuant to the 2011 Modification, Father was ordered to pay maintenance and $1011.00 per month in child support for the two children. Father was also required to maintain health insurance covering the children and to pay seventy-five percent of the children's uninsured expenses.

         Father filed a motion seeking family access in December 2015 in which he alleged Mother intentionally failed to comply with the 2011 Modification by denying him visitation over the last two years. In February 2016, Father additionally filed a motion for contempt and to abate child support. In that motion, Father asserted that Mother failed to comply with the 2011 Modification concerning Father's visitation rights and failed to communicate with Father despite the fact that Mother and Father shared joint legal and physical custody.

         In June 2016, Mother moved to modify custody, visitation, support, and maintenance as well as to determine amounts due and owing. Mother alleged that Father failed to exercise visitation under the 2011 Modification, the minor children no longer wished to visit with Father due to the deterioration of their relationship, and Father alienated himself from the children. Mother also claimed severe financial hardship due to Father's failure to pay expenses as ordered, an increase in costs associated with the care of A.L., and a decrease in her income. Mother further asserted that Father received a substantial increase in income. Father responded with a series of motions including a counter-motion to modify custody, visitation, support, and maintenance.

         The matter was heard during May 2017. At the time of trial, J.L. was seventeen years old and A.L. was fourteen years old. Neither child testified at trial. Father testified that J.L. was completing her junior year in high school, and that J.L. was very smart and did "fairly well" in school, even though, in his opinion, J.L. was not living up to her potential. Father also testified that Mother denied him visitation with both children; however, Father only sought make-up visitation with A.L. because of J.L.'s age and his deteriorated relationship with J.L. Father proposed an even-split schedule with A.L., which included overnight visitations. Mother countered that Father should not be allowed overnight make-up credit because the children refused to spend overnights with Father.

         Following trial, Mother, Father, and the GAL each submitted proposed parenting plans. The GAL recommended that the best interest of A.L. would be served by awarding joint legal and physical custody and by designating Mother as the residential parent. The GAL advised that A.L. not be allowed to decide custody on her own, but that the parents should enforce the parenting plan. The GAL expressed no safety concerns with Father and proposed awarding Father custody that included every other weekend and one night per week. Father, A.L., and A.L.'s counselor would determine the overnights.

         In December 2017, the trial court entered judgment (the "2017 Judgment"), granting Father's counter-motion to modify the 2011 Modification. The trial court determined that several substantial changes in circumstances had occurred, namely: (1) Father only received twelve overnight visits with A.L. from April 2014 through June 2015, (2) A.L. had not participated in visitation with Father from July 2015 to time of the trial, (3) Mother refused to facilitate a relationship with Father, and (4) Mother alienated A.L. from Father. The trial court found that Father's monthly income was $14, 192.00 and Mother's monthly income was $3, 732.00. The trial court decreased Father's child support and obligated Father to pay child support of $523.00 for only one child. The trial court awarded Father make-up visitation with A.L. and modified the 2011 Modification agreement in order to reflect the make-up visitation time with A.L. The trial court denied Father's motion for contempt. The trial court denied both Mother's and Father's requests for attorneys' fees, finding that both parties had the ability to pay their own fees and costs.

         In response to the 2017 Judgment, Mother filed a motion for new trial and a motion to amend the 2017 Judgment on multiple grounds, including that the trial court failed to rely on the GAL's recommendation, did not allow the children to testify at trial, and did not order child support for J.L. In March 2018, the trial court entered the 2018 Final Judgment in which it denied both motions and sua sponte found that J.L. was statutorily emancipated because she turned eighteen years old after trial and before the 2017 Judgment was issued. Thus, the trial court clarified its reason for reducing Father's child support obligations to only A.L. in the amount of $523.00. The trial court upheld all other provisions of the 2017 Judgment. Mother now appeals.

         Points on Appeal

         Mother raises three points on appeal. In Point One, Mother alleges that the emancipation of J.L. was not supported by the record because J.L. was in high school and only seventeen years old at the time of trial, and consequently, the trial court did not properly calculate child support. In Point Two, Mother argues two sub-points: first, Mother avers that the parenting plan was against the weight of the evidence because the trial court did not give weight to the GAL's proposed parenting plan; second, she contends that the trial court plainly erred in refusing to allow the minor children to testify. In Point Three, Mother posits that the trial court abused its discretion by not awarding her attorneys' fees because it failed to take into account the income disparity between Mother and Father.

         Discussion

         I. Rule 84.04 Deficiencies in Mother's Points Relied On

         The significant deficiencies of Mother's brief require us to first determine whether we should review the substance of Mother's claims. See Rule 84.04(d).[1] Mother's brief must:

(A) Identify the trial court ruling or action that the appellant challenges;
(B) State concisely the legal reasons for the appellant's claim of reversible error; and
(C) Explain in summary fashion why, in the context of the case, those legal reasons support the claim of ...

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