Schaberg v. Schaberg
No. ED109200
Appeal from the Circuit Court of St. Louis County to Missouri Court of Appeals – Eastern District
Date Filed November 2, 2021
Trial Court Ruling Affirmed
The parties are a same sex female couple. D. Schaberg (hereinafter “Petitioner”) and J. Schaberg (hereinafter “Respondent”) were married on January 21, 2017. They are the parents of one child (hereinafter “Daughter”) who was born on April 2, 2017. The child was born via in vitro fertilization and Respondent is the biological parent. Petitioner filed for divorce in April 2018 and Respondent filed cross petition.
The trial court awarded sole legal custody of Daughter to Petitioner, but awarded joint physical custody of Daughter to both parties. The trial court adopted the GAL’s parenting plan, which it attached to the Judgment. The parenting plan provides for sole legal custody of Daughter to Petitioner , and further states that “[m]ajor decisions affecting the child shall be made by Petitioner: however, she shall confer with Respondent prior to making any final decisions regarding the minor child’s health and welfare.” As stated in the parenting plan, the trial court determined that granting Petitioner sole legal custody was in the best interests of Daughter. Respondent filed a post-trial motion to amend the Judgment that was denied by the Court.
Respondent raised four (4) points on Appeal:
- Respondent argues that she is the biological mother of Daughter, and that Petitioner lacks standing to raise issues relating to custody and support of Daughter because Petitioner is not Daughter’s biological parent, is not a presumed natural parent of Daughter under Section 210.822, and Petitioner never adopted Daughter during their marriage;
- Respondent argues that the trial court erroneously divided the marital debt incurred by the parties during their marriage because the trial court disregarded a $10,000 loan Petitioner took against her deferred compensation retirement plan during the litigation;
- Respondent maintains the trial court erred in issuing an inconsistent judgment which awarded Petitioner sole legal custody of Daughter but also required Petitioner to confer with Respondent before making any final decisions regarding legal custody issues; and
- Respondent contends that the trial court erred by ordering Respondent to pay Petitioner $414 per month for child support because the trial court included Daughter’s daycare as a “work related childcare expense” when the childcare expense was in fact “tuition” that should have been excluded from the trial court’s child-support calculations.
Point 1: DENIED. The Appellate Court agreed with Petitioner that Respondent raises the issue of standing for the first time on appeal. The record shows that Respondent did not challenge Petitioner’s standing either at trial or in her post-trial motions. The Appellate Court went on to note that, “normally, we will not allow a claim of error to be raised on appeal if it was not first presented to the trial court.” See 39 Bell LLC, 584 S.W.3d at 828. Instead, during trial, Respondent invited the trial court to acknowledge Petitioner’s standing to assert a right of custody when Respondent requested the trial court grant joint custody of Daughter to her and Petitioner in her counter-petition for dissolution of marriage and allowed the trial to proceed without otherwise challenging Petitioner’s standing.
The Appellate Court noted that Petitioner does have standing based on a “gender-neutral reading of RSMo 210.822 leaves no question that Petitioner is the presumed natural parent of Daughter.” The Appellate opinion further held that “. . . the holding in Obergefell requires that Section 210.822 apply equally to same-sex couples.”
Point 2: Denied. Respondent did not preserve the issue for Appellate Review.
Point 3: Denied. Respondent did not preserve the issue for Appellate Review.
Point 4: Denied. The Appellate Court noted that “ . . . we find the designation irrelevant here because Jamie has presented no evidence that tuition for a pre-school or daycare cannot be considered a work-related childcare expense for the purposes of Form 14.”
