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Lynch v. Lynch

Court of Appeals of Missouri, Eastern District, Southern Division

January 7, 2020

LADONNA S. LYNCH, Respondent,
v.
PAUL C. LYNCH, Appellant.

          Appeal from the Circuit Court of Cape Girardeau County Honorable Craig D. Brewer.

          Philip M. Hess, Presiding Judge.

         Introduction

         Paul Lynch ("Father") appeals the trial court's judgment dissolving his marriage to LaDonna Lynch ("Mother"). Father claims seven points on appeal due to errors in the judgment dissolving marriage ("Original Judgment") as amended by a second judgment ("Amended Judgment"), which addressed the parties' post-judgment motions.

         First, Father claims the trial court erred in denying him joint legal custody of the three minor children. Father argues: he had a long career in education; there was no evidence of neglect or abuse; the court misused the eight-factor evaluation; he would be paying for 70% of numerous aspects of the children's lives with no control or legal custody; and he and Mother shared beliefs on how to raise the children. Mother claims she and Father have problems communicating and argues the trial court correctly made its finding for custody considering all of the factors involved in determining the best interests of the children. Father failed to show the trial court erred in its custody determination.

         Second, Father claims the trial court erred in calculating the amount of child support. Father argues the trial court failed to calculate the correct child support amount because it did not use the correct amounts for Mother's monthly gross income, the health insurance costs, or the credit Father was owed for overnight visitation. Mother responds the trial court adequately calculated these figures. We find the trial court made errors in calculating the presumed child support amount. We remand for the trial court to recalculate child support in accordance with this opinion and to reconsider if the correct presumed child support amount is just and appropriate.

         Third, Father claims the trial court erred in ordering payment of child support retroactively. Father argues Mother did not request retroactive child support and the award was not supported by the evidence before the trial court. Mother counters the trial court was able to award retroactive child support because there was evidence of nonsupport by Father during the time in question and Mother was not required to request it. We remand for re-calculation of retroactive child support in accordance with this opinion.

         Fourth and fifth, Father claims the trial court erred in ordering Father to pay 70% of the non-covered medical expenses and 70% of parochial school expenses for the minor children. Father claims the trial court arrived at 70% because of errors in calculating Mother's monthly income; therefore, he claims the errors in his second point require a recalculation of this proportion of expenses. Father argues he does not have any decision making ability to justify this high amount of medical expenses. Father also argues he does not have the financial ability to afford 70% of the parochial school expenses. Father argues he should not be forced to pay this proportion without decision making ability and he should only be expected to pay for parochial school if the child does go to a parochial school. Mother counters the trial court did not abuse its discretion because it considered all relevant factors in its decision to order Father to pay 70% of the parochial school expenses and 70% of the non-covered medical expenses.

         The trial court used the proportion of the parties' incomes to calculate the relative responsibility for non-covered medical expenses and parochial school tuition. If this proportion changes based on the newly completed child support calculations, the trial court must reconsider the 70% Father was ordered to pay using all relevant factors, including the parties' ability to pay.

         Sixth, Father claims the trial court erred in improperly distributing the marital debts without appropriate findings. Father claims the distribution of debt, assumedly based on the comparison of income analysis argued in his second point, is unfairly weighing against him. Mother counters the trial court considered all relevant factors in its distribution of the marital debts and did not abuse its discretion. Last, Father claims the trial court erred in its valuation of the family home when determining the distribution of property. Father argues the evidence of the purchase was dubious, he did not waive his marital rights to the home, and he received too small of a share of the value of the home. Mother again counters the trial court considered all relevant factors in its valuation of the family home and did not abuse its discretion. Father has failed to show the trial court abused its discretion in its distribution of marital assets, debts, and the family home.

         The calculation of the child support award is reversed. We remand with instruction to recalculate the proportion and amount of the parties' income and reconsider the effect of this calculation on child support and the division of expenses in accordance with the opinion.

         Factual and Procedural Background[1]

         Mother and Father married on September 12, 1992. They separated on October 14, 2014. Mother and Father had five children together, two of which were emancipated at the time of the judgment of dissolution. Father has been dating another woman since the separation. Mother claims Father had at least one affair during the marriage.

         Mother filed a petition for dissolution of marriage on February 25, 2016. Father filed a counter-petition on March 9, 2016. Father claimed he voluntarily paid Mother approximately $46, 000 between February 2016 and November 2017. Both Mother and Father filed a Civil Procedure Form No. 14 ("Form 14") proposing child support amounts to the trial court.

         Mother and Father filed separate parenting plans for their three unemancipated children. Mother wanted sole legal and physical custody of all three unemancipated children while Father wanted joint legal custody of all three children and joint physical custody of the parties' youngest child (the "Youngest Child").

         The parties generally agreed to the division of certain marital property, which included cars, certain household items, and some debt incurred by the parties. The parties requested the trial court separate and divide disputed marital/non-marital property which included: the marital equity in the parties' home; a growth fund; a bank account; a debt to the Knights of Columbus; and another unsecured debt. Mother sought 60% of the assets and 40% of the debts due to Father's marital misconduct.

         The trial court held hearings on April 6 and June 18, 2018.

         Original Judgment

         The trial court entered the Original Judgment on September 19, 2018. The trial court denied the custody arrangements proposed by the parties. Because the parents did not agree upon a parenting plan, the trial court had to make findings based on the eight factors under Section 452.375.2[2] and the public policy stated in Section 452.375.6 in determining these custody arrangements in the Original Judgment. The trial court granted Mother sole legal and physical custody of two of the three minor children. The trial court granted Mother sole legal custody but joint physical custody of the Youngest Child.

         To support this custody arrangement, the trial court found Husband was less than cooperative in counseling sessions with Mother for the Youngest Child. Based on credible testimony from the counselor, Father seemed indifferent and frustrated with the process.

         The trial court found Mother credibly testified regarding concerns about the parties' inability to communicate, Father's anger and aggression issues, and the effect of alcohol consumption on Father's decision. The trial court found Father "delegitimizes" the children's feelings, specifically, the Youngest Child. The trial court noted there is no evidence of physical abuse or neglect by either parent. But, the trial court found Father can be aggressive and quick to anger which affects the relationships between Father and the children. The trial court found the emotional health of the children, especially the Youngest Child, was not helped by the issues between Mother and Father and their inability to communicate or make decisions.

         When the trial court granted sole legal custody of all three unemancipated children to Mother, it found Father voluntarily stepped out of the older unemancipated children's lives and Father "demonstrated a lack of empathy toward [the Youngest Child] and an inability to communicate effectively with [Mother]."

         The trial court completed its own Form 14 as required when denying the parties forms to determine how much child support Father must pay to Mother. The trial court used Mother's income from social security disability and an estimate of her income from a part-time job in calculating the presumed child support amount ("PCSA"), a prerequisite to a final child support award. The trial court input the health insurance expenses provided by Father in its Form 14. The trial court granted no credit for overnight visitation to Father in its Form 14. The trial court granted retroactive child support to Mother starting in November 2017, the month Father stopped voluntarily paying support.

         The trial court was asked to consider transfers Mother made to herself from a Bancorp bank account ("Bancorp account"), one of Mother's non-marital accounts. Mother's brother was responsible for her finances and testified about Mother's fiscal history. A handwritten ledger, entered as an exhibit, showed money being transferred out of the Bancorp account at approximately $87, 500 per year from 2010 to 2016. The trial court characterized the transfers as gifts received from non-marital funds held by Mother's family. This exhibit also showed deposits into Mother's account throughout the relevant time periods. Some substantial deposits were described as "capital distributions." Throughout this time period, the account itself also gained "interest" month-to-month, according to this handwritten ledger.

         The trial court also ordered Father would pay 70% of all non-covered medical expenses and 70% of parochial school expenses. Mother was ordered to pay 30% of the non-covered medical and parochial school expenses.

         The trial court separated the parties' marital and non-marital assets. It ruled the parties' home was partially marital and partially non-marital. The trial court set apart considerable non- marital assets to Mother, including $50, 000 of equity in the parties' home, as non-marital property.[3] Father received his retirement as non-marital property.

         The trial court was asked to divide certain marital assets and debts. The disputed marital assets and debts were: the parties' home (valued at $215, 000);[4] a growth fund (valued at approximately $10, 000), a bank account (valued at approximately $500) a debt to the Knights of Columbus (approximately $10, 000, outstanding), and another unsecured debt of the parties (approximately $11, 000, outstanding).

         The trial court used statutory factors to determine how to divide the disputed marital assets and debts. The trial court ordered Mother receive a greater portion of the equity due to Father's marital misconduct. The trial court ordered Mother to pay Father $80, 000 as an equalization on the family home. The trial court awarded Father the growth fund and the bank account and ordered Father to pay the Knights of Columbus and the other unsecured debt. The agreed-upon division apportioned approximately $3, 850 of marital property to Mother and approximately $16, 000 to Father.[5]

         Amended Judgment

         On October 16, 2018, Father moved for a new trial or for reconsideration of the Original Judgment. On October 18, 2018, Mother moved to amend the Original Judgment and to re-open the case because evidence was uncovered after the case was submitted. On November 28, 2018, the trial court held a motion hearing during which counsel for both parties argued their post-judgment motions.

         On December 12, 2018, the trial court filed the Amended Judgment. The Amended Judgment did not modify custody arrangements. The trial court explained:

[Father] asserts that, for purposes of the Form 14, [Mother]'s trust income and partnership distributions should have been considered. The Court disagrees. The Court finds that while these transfers have occurred from time to time, they were special requests by [Mother] to the caretaker of her family's trust and not regular or mandatory distributions per special provision of the trust. [Mother] obtained these transfers, which are clearly non-marital transfers, for the purpose of supporting herself and the children during the separation. The Court finds any such transfers to be gifts and not earnings by [Mother] due to some activity or employment by her or on her behalf. To address [Father]'s other points regarding child support, [Father]'s own Form 14 submitted into evidence included a cost for health insurance of $521.00 per month, not $563.74 as he alleges in his Motion. Further, his own Form 14 included no overnight credit and the presumed child support amount in [Father]'s Form 14 is $178.00 higher than the Court's Form 14 and the figure for child support that the Court ultimately used. [Father]'s arguments are not well taken. Moreover, the Court finds the division of non-covered medical expenses and private parochial school tuition to be appropriate based on the parties' proportionate share of adjusted gross monthly income as set forth on its Form 14. [Father] may now argue that the children need not attend parochial school but the evidence was clear that this was the desire and decision of the parties during the marriage, that the children are excelling in their respective parochial schools, that the parties do have the financial means to pay for parochial school, and that it would not be in the best interests of the children to now require the children to attend public school.

(emphasis added).

         In the amended judgment, the trial court found the value of the family home was $265, 000. It ordered $50, 000 was a non-marital gift to Mother, so the marital equity was $215, 000. Father was awarded $80, 000 of this equity. The trial court allowed Mother to offset the $80, 000 owed to Father for the equity equalization on the home against child support arrearage and portions of debts owed to Mother for non-covered medical expenses and parochial school expenses. The court also explained Father was ordered to pay 70% of certain debts, including the non-covered medical, not as a part of the division of marital equity, but rather as a part of the ruling on the proportion of non-covered medical expenses.

         This appeal followed.

         Discussion

         Standard of Review for Dissolution Cases

         Dissolution proceedings are suits of an "equitable nature," so we will sustain the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Because the trial judge is in a better position to determine credibility of witnesses and weigh the evidence, we do not retry the case and accept as true the evidence and reasonable inferences therefrom in the light most favorable to the decision of the trial court, disregarding all evidence and inferences to the contrary. Mund v. Mund, 7 S.W.3d 401 (Mo. banc 1999); Slattery v. Slattery, 185 S.W.3d 692, 696 (Mo. App. E.D. 2006). "Weight of the evidence" refers not to the quantity or the amount of evidence but to its probative value. K.M.M. v. K.E.W., 539 S.W.3d 722, 732 (Mo. App. E.D. 2017). "The burden of demonstrating error is on the party challenging the divorce decree." Hernandez v. Hernandez, 249 S.W.3d 885, 888 (Mo. App. W.D. 2008).

         Poin ...


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