Colborne v. Colborne
2011 Mo. App. LEXIS 366
Mo. Ct. App.2011Background
- Merger decree awarded Mother sole custody of two children with Father visitation; Father obligated to pay child support and to share college expenses.
- Daughter enrolled at Rockhurst University in 2007; Mother paid full expenses and sought reimbursement from Father.
- 2008–2009 hearings modified custody and support; court found daughter's support abated due to failure to provide required transcripts, and son's support abated since he lived with Father; refunds and arrearages were ordered.
- Court held neither Parent owed college expenses for 2007–2008 and 2008–2009; later found daughter could incur expenses for 2009–2010 and beyond, with Father responsible for son's college expenses.
- Mother appealed, arguing (a) improper abatement for daughter's noncompliance, (b) misapplied college-expense condition, (c) improper abatement of son’s support, and (d) retroactive modification issues.
- Appellate review affirmed in part, reversed in part, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was abatement of daughter's support correct? | Mother argues nonofficial transcripts satisfied law; trial court misapplied 452.340.5. | Father contends failure to provide official transcript/correct notice breaches requirement. | Remanded; unresolved due to conflicting evidence on compliance. |
| Did the decree require attending the most expensive college for reimbursement to apply? | Mother contends decree allowed attendance choice; applying for grants/scholarships suffices to trigger shared costs. | Father argues no reimbursement if college selection not aligned with decree's conditions. | Reversed in part; the court erred in denying reimbursement based on college choice. |
| Did Mother voluntarily relinquish custody of the son warranting support abatement? | Mother asserts no voluntary relinquishment; move was not consented to by Mother. | Father claims de facto relocation with implied consent due to scheduling changes. | Affirmed that Mother relinquished custody; abatement sustained. |
| Is retroactive abatement of support permissible before service of modification motion? | Mother challenges retroactive abatement before service date; argues abatement and modification are distinct. | Father relies on abatement provisions tied to custody relinquishment dates. | Denied; abatement proper given custody relinquishment date; retroactivity limited to abatement context. |
Key Cases Cited
- Murphy v. Carron, 536 S.W.2d 30 (Mo. banc. 1976) (standard of review for trial court judgments)
- Jansen v. Westrich, 95 S.W.3d 214 (Mo.App. S.D. 2003) (abatement/notice requirements under §452.340.5)
- Peine v. Peine, 200 S.W.3d 567 (Mo.App. W.D. 2006) (semester-by-semester compliance; abatement framework)
- Waddington v. Cox, 247 S.W.3d 567 (Mo.App. E.D. 2008) (unofficial documents may suffice as official for §452.340.5)
- Eckhoff v. Eckhoff, 71 S.W.3d 619 (Mo.App. W.D. 2002) (appellate deference to trial court findings)
- Ricklefs v. Ricklefs, 111 S.W.3d 541 (Mo.App. W.D. 2003) (transcripts requirement for college-expense enforcement)
- Morton v. Myers, 21 S.W.3d 99 (Mo.App. S.D. 2000) (remand when record prevents fair judgment)
- Harris v. Rattini, 855 S.W.2d 410 (Mo.App. E.D. 1993) (de facto move not always nonvoluntary relinquishment)