*1 Marriage In re The of Alice
TOOMEY, Appellant, TOOMEY, Respondent.
James Michael
No. 63433.
Supreme Missouri, Court of
En Banc. Card, II, appellant. Clayton, for P.
Daniel Seigel, Levitch, Alan Jay Charles L. St. Louis, respondent.
SEILER,
for
Judge.
emancipated
one of
children who
living
was
with her.
was
from the court
This ease
transferred
district,
opinion.
eastern
after
appeals,
of
principal
The
items of
are the
granted
on the
This court
transfer
hus-
family residence and husband’s interеst
in
ques-
band’s
to consider two
application
the pension plan. The residence has a value
1)
provides
a
award that
tions:
is
$140,000
$170,000, subject
of
to a deed of
pay all
for the husband to
educational ex-
$40,000.
testimony
trust of
Husband’s
a
penses
fig-
of children and sets minimum
pension plan
that
was “the California
by
ure unеnforceable
execution and thus
(with
type”
explanation
no
as to what he
void; 2)
prior
the fact
is
of a
meant),
$39,849”,
it
of
shows “a total
parties a
between the
factor for
designed
that it
at age
is
for retirement
in awarding
consider
and that “you cannot borrow or take it
ap-
maintenance? Pоrtions of
court of
out.”
is nothing
There
in the record as to
peals opinion are
quota-
used here without
$39,849
at,
figure
how the
was arrived
nor
tion marks.
is
copy
pension plan
any
there a
The
had been married for more
provisions.
its
Husband is indebted to a
twenty years prior
than
to their 1975 di-
upon
$29,400.
bank
note
prоp-
a
for
Other
vorce in Connecticut.1
children were
Six
account,
erty
of a checking
consists
automo-
during
marriage. They
born
remarried
biles,
furnishings.
and household
August
in Missouri on
1976. Wife filed
nurse,
Wife had been a registered
li-
petition
a
for dissolution on November
in
has
prac-
censed
Connecticut.
not
She
July
which was аmended
1979.
profession
years
ticed her
for 22
and her
Four of the children were minors at the
expired.
license apparently has
She had
present
Judg-
time of trial
action.
happy
not been
in the
and does
work
not
30, 1979.
ment was entered
profession
intend to follow the
in the fu-
time
At the
both
were
judicial
ture. The trial court took
notice
years
forty-nine
Respondent
old.
husband
that reciprocity existed between Connecti-
physician employed by
is a
Wash-
licensed
cut and Missouri
nurses.
respecting
Hus-
ington University
Hospital
at Barnes
band testified that
refresher courses in
City
City Hospital.
Louis
St.
at
nursing
persons
are available to
whose li-
$62,215.46. His
gross
His
income is
month-
expired.
censes have
There
no direct
which
take-home
after deductions
license,
evidence of the status of wife’s
no
include
life insurance and a
$19.50
evidence
availability
of positions, and no
pension plan
a
contribution toward
$329.58
respect
with
to thе income a nurse
$3,323.61.
is
The
pension contribu-
$329.58
expect
could
to receive.
testified that
She
Washington
University.
tion is matched
she was
with
present employ-
content
her
employed part-time
as a hostess in
Wife
ment because it
to be with
allowed her
gross
per
Her
month is
restaurant.
income
children
who
still аt home.
pay is
and her take-home
$396.00
$314.00
The trial
maintenance to
court awarded
per
ordinary living ex-
month. Husband’s
per
wife in the sum of
month for a
$1,509.
penses
approximately
Wife’s
years,
coincides
of five
which
with
living expenses
her
ordinary
estimate of
youngest
reaching twenty-one.
In
$1,569.
The cost of
for the four
dividing
property,
the court ordered the
$2,181
per
children is
clear. Wife listed
$150,000
sold for at
residence be
least
with-
month which allotted
to educational
in six months and the net proceeds divided
expenses. Husband
educational ex-
put
pension
equally;2
fund,
which had ac-
penses
per
at
month. Wife’s esti-
$645.53
solеly
expenses
during
cumulated
second mar-
mate of
for the
was in-
riage,
the cost of
was set aside
without
correct in
included
food
to the husband
original marriage
stayed
appeal.
1. The
date of
and of
This order has been
exact
appear
do not
in the record.
divorce
”
indicating whethеr or not it was marital
there is so much available now . . . . Dr.
granted
property.
custody
of the Toomey testified that he wanted to and was
to wife
minor children
and made an award
expenses
able
for the education
per
month as
for each of
testimony
children. His
indi-
($600 total).
the four minor children
*3
cated that
if his children wanted to attend
made an
support
additional award for
college
pay
he would
all expenses for the
requires the
pay
which
husband to
all edu-
colleges
Also,
his children selected.
his em-
expenses.
cational
ployer Washington University will pay up
annually
to
for tuition for each сhild
appeals
expense
$2300
Wife
the educational
part
college
university.
award which reads in
as follows:
at
addition,
In
Respondent
pay
to
for each
We do not
that paying
find
private
college
child all
school or
tuition
money directly
respective
institutions
costs,
housing
and
said sum to totаl no
interferes with the right of the custodial
month;
per
less than
said sums to be
parent
make
to
education decisions. The
paid directly
respective
educational
minimum amount due was for the amount
at
Respondent
institutions
such time as
currently paid by
Toomey
Dr.
receives statements therefor.
institu
tions the сhildren were attending. The or
Petitioner wife asserts this order is void
der to
directly
institutions
is sensi
because the amount is too indefinite to be
manner,
ble. In this
Toomey
Dr.
can make
and,
furthermore,
enforced
execution
in-
arrangements with the institutions of the
right
vades the
parent
custodial
to
best means to meet the expenses. Further
support
determine how child
is to be allo-
more, many items of
support
child
are made
cated.
directly
party
to a third
and
is within the
A trial court has broad discretion
discretion of the trial court to order accord
flexibility
and
in fashioning
child
ingly. E.g.,
700,
In re Lineberry, 9 B.R.
706
payments. The court must make an ordеr
(Bkrtcy.W.D.Mo.1981) (payments to ortho
that accommodates the needs of the minor
dontist);
Niederkorn,
Niederkorn v.
616
ability
children and the
of the parents to
(Mo.App.1981)
S.W.2d
539
(payment
Matheus,
meet those needs. Matheus v.
612
medical
insurance
company); Biggs v.
(Mo.App.1981);
S.W.2d
908
Allison v.
Biggs,
397
(Mo.App.1965)
S.W.2d
338
Allison,
540
(Mo.App.1976).
S.W.2d
(payments
private
for
school tuition and
is apparent
It
from the order that the trial
camps).
sought
to make this accommodation.
At the time of
three of the minor
remains whether
children attended school.3 The youngest
order is so indefinite as to the amount owed
private
two were in
high schools and one
to be unenfоrceable
execution and thus
college.
was in
Toomey
paying
an
respondent
void. The
was ordered to
average of
a month for tuition
costs,
all
housing
tuition and
“said sum to
expenses.
other
Mrs.
in her testi-
per
total no less than $665
month.” As
mony indicated that she did not want
above,
figure
discussed
represents
change the schools the children were at-
average monthly
respondent
sum
tending,
money paid
but wanted the
direct-
paying at the time of trial for the children’s
education,
to her.4 “I believe in
but as
education.
far as that amount
I think it
[$665]
overdone.” She testified that she
Loomstein v.
wanted
Mercantile Trust National
gеt
Ass’n,
the children to
financial aid “because
vorce as well as interim when the married, subsequent were not present and the dissolution. Such
is not the with (alimony) case maintenance only
which arises from the existence of the
marriage beginning in 1976 and terminat-
ing Similarly majority in 1979. recites proceeds
the fact the from the sale
parties’ previous Connecticut home was in-
troduced, justifies and concludes this intro-
ducing “totality evidence of the of their
relationship”. pro- It true that if these
ceeds exist as an asset of the parties,
present assets) (with value that of other question of maintenance.
However, readily apparent con- nexuses
necting (1) fact six children were born
of the prior marriage to the (2)
child support and value of current parties’ to the issue mainte- assets
nance, provide such link no between status
in a prior marriage and maintenance stem-
ming subsequent from a We dissolution.
may condemn, done, as the has majority excluding for properly parties’
evidence as circumstances *6 marriage, is irrel- first for such
evant to the issue of maintenance. To the
extent it is directed that such evidence be rehearing, respectfully
considered on I dis-
sent. Missouri, Respondent,
STATE of Bracy OLSON, Appellant.
Leonard
No. 62634. Missouri,
Supreme Court of
En Banc.
Aug.