Domestic Relations: Retirement Account – Child Custody – Attorney’s Fees

(1)Where a father argued that his retirement plan should be considered his separate property because it began more than five months after a default judgment was entered in a dissolution, the default judgment was set aside so the default judgment does not determine when the parties were legally separated because it is as if it never occurred, and the father failed to show any other exception to rebut the presumption of marital property, so the award of 50 percent of the plan to the mother is affirmed.

(2)Where a father challenged an award of joint physical custody with mother as the residential parent, the trial court extensively considered the statutory factors and provided reasons for the custody award, and the father’s schedule as a firefighter may not prevent an award of primary physical custody but his hours and schedule could be considered by the court.

(3)Where a father in a dissolution challenged the inclusion on Form 14 of monthly gross income from his second job, the evidence showed that the income had been consistent, so the trial court did not abuse its discretion in including the income, and the court’s award of attorney’s fees to the mother is affirmed because the court properly considered the parties’ ability to pay.

(4)Where a trial court adjusted the presumed child support amount by adding $64 per month on the basis that the father was afforded the yearly dependent tax exemption, the court did not abuse its discretion because the presumption of the Form 14 guidelines amount is rebuttable and the court made the proper written finding that the presumed amount was unjust or inappropriate.

Dismissed in part; affirmed in part.

Thorp v. Thorp (MLW No. 64560/Case No. ED97995 – 22 pages) (Missouri Court of Appeals, Eastern District, Richter, J.) Appealed from circuit court, St. Louis County, Essner J. (Susan Roach and W. Edwin Roussin for appellant) (Karen Pittman-Pace for respondent).

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