Griffith v. Griffith

HAROLD L. LOWENSTEIN, Judge.

A recent social commentary laments a system that allows the arithmetic by which things are counted to become more important than the things being counted. The same can be said here by strictly complying with the statute at hand. By strictly adhering to Section 452.340.5, Missouri citizens can be assured that it will be unnecessarily difficult for this young woman to become a nurse. No one can quibble with the conclusion that the record does not contain direct evidence explaining Daughter’s “lost semester” in the spring of 2003. One can quibble, however, with the conclusion that the legislature intended to deny support to a student who graduated from high school early, began taking college courses immediately thereafter, and worked fifteen to twenty hours per week, *469while living with her mother. Application of the statute results in Daughter’s emancipation and is counterproductive to all concerned. Although the statute must be followed, it should be amended. For this reason, I concur in the result of emancipation but dissent on appellate costs and attorney’s fees.

The law sets forth three requirements for determining whether a child is excused from completing the requisite number of college hours per semester. Here, the “manifest circumstances” requirement has not, on its face, been satisfied; however, this should not end the inquiry.

Beyond the surface, there are intangible facts that cry out for affirming the judgment. This case involves a mother who works as a nurse for the county and makes $8,100 per month. Although Father grosses more than $159,000 a year, he pays less than $800 per month in child support, and has set up an account for his daughter with a balance of less than $3,000. Daughter lives at home with Mother and works fifteen to twenty hours per week. She has consistently demonstrated a pattern of being a serious student. Daughter took six hours of college-level courses during her last year in high school, three hours the following summer, and another six hours during the fall semester in which she turned 18. Daughter wants to be a nurse, a profession not easily entered into nor filled to overflowing.

Strict compliance with the statute results in Daughter no longer receiving support from Father. It will be more difficult for Daughter to afford the costs of attending college, resulting in one less potential nurse. The trial court issued a sensible and fair judgment by abating support for the semester when Daughter enrolled in only one class but wallowed in the morass of algebra. The court’s approach would not lead to a squandering of Father’s money. Instead, it would support Daughter, who, rather than giving up after a disastrous semester, continued with college, completed twelve hours during the fall semester, and had enrolled for twelve additional hours the semester the motion was heard.

Careful planning would have allowed algebra to be postponed until a more feasible time. Mother and Daughter, however, like many in their situation, did not have the resources to carefully plan so as to avoid termination of child support. Here, the decision to take less than the necessary number of hours following Daughter’s 18th birthday resulted in terminating her support for college. Other than algebra, Daughter has received B’s in all courses taken while in high school or at college.

The legislature seemingly intended the law to extend the period during which child support is owed beyond the time a child turns 18, so as to allow a reasonable, steady, and inevitable march toward advanced education. Here, this purpose has been thwarted. Daughter started the march before most, but because she unfortunately stumbled during a critical semester, all child support has been terminated.

The facts of each case are different. Suffice it to say, this is not a case where the child quit during the semester because of problems with a boyfriend, Draper v. Draper, 982 S.W.2d 289, 294 (Mo.App.1998), or of a mistaken idea as to prerequisites for taking a course, Meuschke v. Jones, 134 S.W.3d 783, 788-89 (Mo.App.2004). The trial court should have been free to infer that Daughter was a diligent student who sought the benefits of higher education and was on a path at a relatively young age to graduate, and that she was not merely plodding through an easy curriculum to scam Father out of money.

*470The legal system survives by allowing trial judges to make fair and reasonable decisions. This is precisely what the trial judge did in this case. If the law as written; i.e., the language stating “circumstances manifestly dictate,” must result in the drastic remedy of emancipation, then the legislature should rewrite Section 452.340 so that a trial judge is not compelled to reach such a conclusion.

The general assembly could amend the present language to exempt a child, who for instance, graduates from high school early and takes college credit while working, from being penalized when a temporary blip in college course work occurs. Language permitting a trial judge to abate support during a period when steady and earnest college education is evident would be welcomed. For example, the legislature could insert the following provision: “When the judge is firmly convinced on the evidence that the child has pursued a path of continuous attendance and will continue to do so, then the court may, instead of declaring the child emancipated, enter a judgment abating support for a period of up to five months.” Consequently, the all- or-nothing decision would be avoided. If such an amendment would lead to children taking more college credits in high school, working fifteen to twenty hours a yveek, both before and after turning 18, and picking themselves up after stumbling over a difficult course, then so be- it. The policy of this state is to encourage children to pursue higher education. Perry v. Perry, 114 S.W.3d 865, 868 (Mo.App.2003).

Mother’s attorney’s fees and costs should be awarded by this court for her appellate expenses. While part of her efforts have now been held for naught, Mother’s position on the emancipation issue has merit and considering the relevant factors, she should not have to accept the burden of those costs and fees here. Morton v. Myers, 21 S.W.3d 99, 108-09 (Mo.App.2000).

I, therefore, most reluctantly concur with the majority opinion on the issue of emancipation. I would award mother reasonable fees for her attorney and for costs on appeal.