Thorp v. Thorp
2013 Mo. App. LEXIS 38
Mo. Ct. App.2013Background
- Married May 30, 2006; minor child born December 2, 2004; parties separated in April 2008.
- Father filed for dissolution July 18, 2008; Mother failed to respond to custody petition.
- March 4, 2009 default dissolution judgment awarded Father sole physical custody; GAL plan later adopted.
- Parties continued week-to-week custody until Father’s preschool enrollment and enforcement of the default judgment.
- November 10, 2009 Mother moved to set aside default judgment; February 1, 2010 court granted that motion.
- November 8, 2011 judgment: joint legal and physical custody; Mother residential parent; Father’s income included DMAT earnings; Form 14 adjustments made; attorney’s fees and tax-exemption factors addressed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of appeal regarding setting aside default judgment | Father argues the default order was on appeal. | Mother contends timely appeal; court must dismiss if untimely. | Point I dismissed for lack of jurisdiction due to untimely notice of appeal. |
| Marital vs. non-marital status of Father's 457 plan | Plan acquired after default judgment; should be separate property. | Plan acquired after legal separation; still marital under §452.330.2. | Plan remains marital; 50% awarded to Mother affirmed. |
| Custody arrangement and GAL plan appropriateness | Father should have sole physical custody; residential parent should be Father. | GAL plan and joint custody with Mother as residential parent best for Minor. | Trial court’s joint custody with Mother residential parent affirmed; not against weight of evidence. |
| Inclusion of DMAT income in Form 14 | DMAT income should not be included as it is non-guaranteed/bonus. | Income from secondary employment is appropriate for Form 14; consistent over years. | Court did not abuse discretion; DMAT income properly included as gross income. |
| Adjustment of child support due to dependency exemptions | Form 14 presumption should control; tax exemptions not considered. | All relevant factors permit deviation; exemptions can adjust support. | Court did not abuse discretion; increased support to reflect tax exemption allocation justified. |
Key Cases Cited
- Popular Leasing USA, Inc. v. Universal Art Corp. of New York, 57 S.W.3d 875 (Mo. App. E.D. 2001) (timeliness and appellate jurisdiction rules for appeals in dissolution matters)
- Gordon ex rel. Martin v. City of St. Louis, 186 S.W.3d 395 (Mo. App. E.D. 2006) (finality of judgments; appeal from Rule 74.05(d) matters)
- Spino v. Bhakta, 174 S.W.3d 702 (Mo. App. W.D. 2005) (addressing effect of setting aside default judgments)
- In re Marriage of Strelow, 581 S.W.2d 426 (Mo. App. E.D. 1979) (property division; marital vs non-marital property)
- Murphy v. Carrón, 536 S.W.2d 30 (Mo. Banc 1976) (custody review standard; deference to trial court)
- Gulley v. Gulley, 852 S.W.2d 874 (Mo. App. E.D. 1993) (custody factors; employment as a factor in best interests)
- Coble v. Coble, 931 S.W.2d 206 (Mo. App. W.D. 1996) (tax exemptions and Form 14 considerations in dissolution)
- Eskew, In re Marriage of Eskew, 31 S.W.3d 543 (Mo. App. S.D. 2000) (broad discretion in Form 14 adjustments; tax implications)
- Toomey v. Toomey, 636 S.W.2d 313 (Mo. Banc 1982) (general discretion in child support determinations)