In the Missouri Court of Appeals  

Eastern District DIVISION ONE 

 TRACY M. ATKINSON,  )   No. ED99492  )       Respondent, )     )     Appeal from the Circuit Court   v. )     of St. Charles County  )    DOUGLAS D. ATKINSON, )   Hon. Richard K. Zerr   )     Appellant. ) FILED:    March 4, 2014  

Douglas Atkinson (Father) appeals the trial court’s judgment in favor of his former 

spouse, Tracy Dinella (formerly Atkinson) (Mother), on his motion to terminate child support for 

their daughter in college (Daughter).  We reverse and remand. 

Background 

The trial court entered its original judgment and decree of dissolution in 2001. Pursuant 

to the parties’ settlement agreement, the court awarded joint legal custody of Daughter (then age 

9).  Husband was ordered to pay child support.  From 2004 to 2006, the parties litigated various 

motions and judgments to modify financial awards.  As pertinent here, at the time of Father’s 

present motion, existing judgments ordered him to pay child support of $150 per month plus half 

of all educational expenses not exceeding in-state tuition at the University of Missouri. 

Daughter graduated from high school in May 2010, moved to Warrensburg, began 

working part-time at her aunt’s salon, and entered college at the University of Central Missouri 

that August.  After her freshman year (summer 2011), Daughter moved into an apartment, and 

Father agreed to pay $250 per month for her rent and living expenses addition to the court-

ordered $150 per month in child support.  Father paid these amounts directly to Daughter.  

Mother provided Father with a copy of Daughter’s class schedule and tuition bill before each 

semester.  Father had access to Daughter’s transcripts through the university’s online portal.  

Daughter enrolled in 12 credit hours for her sophomore year (2011-2012).  At the 

beginning of that fall semester, on August 26, 2011, Daughter was arrested for driving while 

intoxicated.  Shortly after her release, she overdosed on acetaminophen and cold medicine, 

which she regurgitated and metabolized without medical intervention.  When she informed 

Mother of these events, Mother insisted that Daughter meet with Mother’s therapist in St. Louis 

the following weekend.  Mother, her husband, and Daughter met with Nancy Wiseman, a 

licensed clinical social worker, for approximately 70 minutes to discuss Daughter’s recent 

actions, and Daughter was urged to join Alcoholics Anonymous and seek psychological 

counseling.  Wiseman would later testify that, although Daughter exhibited some symptoms of 

depression, Wiseman did not make a formal diagnosis and did not see Daughter’s overdose as a 

serious suicide attempt. 

In the following weeks, Daughter continued to work part-time at her aunt’s salon but 

withdrew from two of her fall classes (after the tuition reimbursement deadline), thereby 

reducing her course load to eight credit hours.  Father learned of Daughter’s DWI and class 

withdrawals sometime in late November or early December 2011, prompting him to cease 

monthly payments and file an affidavit for termination of child support based on Daughter’s 

failure to maintain at least nine credit hours while working part-time, as required by §452.340.5.  

When Daughter learned of the affidavit, she changed her password to the university portal to 

thwart Father’s access.  At trial, Father would concede that his relationship with Daughter was 

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strained and he never contacted her directly to obtain the new password, but regardless he was 

unable to access Daughter’s records after November 2011.1 Following his affidavit in December, 

in January 2012 he filed a motion to terminate support based on not only Daughter’s 

emancipation by virtue of her reduced course load but also her failure to provide Father with her 

transcripts, each as required by §452.340.5.  Mother filed a cross-motion for contempt based on 

Father’s suspension of payments.  Both parties sought recovery of their respective legal fees. 

At trial, Mother sought to rebut Daughter’s emancipation under §452.340.5 by invoking 

the exception for diagnosed health problems, citing Daughter’s alleged depression following the 

DWI.  Mother adduced the deposition of Nancy Wiseman, who testified that, although she didn’t 

undertake a formal diagnosis, Daughter exhibited some symptoms of depression. To disprove 

that claim, Father offered evidence of Daughter’s drinking and “partying” at college both during 

and after the fall 2011 semester.  The trial court excluded his evidence as irrelevant but allowed 

Father to make an offer of proof depicting Daughter’s exploits on social media.   

The trial court heard two days of testimony and ultimately denied Father’s motion for 

termination and ordered him to pay all amounts owed for Daughter’s fall semester.  Specifically, 

the court found that Daughter suffered from depression and was therefore excused from carrying 

the statutory minimum of nine credit hours.  The court also deemed Father in arrears for $150 per 

month in child support, $250 per month by the parties’ private agreement, and certain additional 

amounts for tuition, for a total of $8,765.  Father appeals, asserting four points of error: (1) 

Father’s agreement to pay $250 per month for living expenses was between the parties and not a 

judgment and hence not enforceable by the court; (2) Father’s support obligation terminated 

when Daughter (a) became emancipated by reducing her course load below nine hours, and she 

                                                 1 Mother’s answer to interrogatories supplied an incorrect password, and an impromptu attempt at trial using the purportedly correct password was unsuccessful. 

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was not diagnosed with depression as required for the statutory exception to apply and/or (b) 

failed to provide Father access to her academic records by changing the portal password; (3) 

evidence of Daughter’s social activity was relevant to rebut the claim of depression; and (4) 

Father is entitled to an award of attorney fees under §452.375.7 due to Mother’s failure to keep 

him apprised of Daughter’s health, education, and welfare. Mother cross-appeals asserting that 

the trial court erred in denying her motion for attorney fees. 

Standard of Review 

On appeal, the trial court’s judgment will be affirmed unless there is no substantial 

evidence to support it, it is against the weight of the evidence, or it erroneously declares or 

applies the law.  Jansen v. Westrich, 95 S.W.3d 214, 217-18 (Mo. App. 2003), citing Murphy v. 

Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).   

Discussion 

 Emancipation 

 We begin with Father’s second point, as it resolves the first three.  Father contends that 

the trial court erred in denying his motion to terminate child support because Daughter became 

emancipated when she reduced her course load to eight credit hours.  Section 452.340.5 provides 

for the continuation of child support after age 18 up to age 21 so long as the child remains 

enrolled in college, either full-time with a minimum of 12 hours or part-time with a minimum of 

nine hours plus employment of 15 hours per week. Daughter ceased to satisfy this condition 

when she dropped two classes in October 2011.  However, the statute provides an exception to 

the nine-hour minimum when a child’s “diagnosed health problem limits the child’s ability to 

carry the [requisite] number of credit hours.” §452.340.5.  The trial court specifically found that 

Daughter was diagnosed with depression after her DWI, thereby excusing her full compliance 

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with the statute, so Father remained liable for child support for that semester. Mindful of our 

standard of review on matters of fact, after careful review of the full record, we find no 

substantial evidence to support the trial court’s finding that Daughter was diagnosed with 

depression.  The only evidence presented on this issue consisted of Nancy Wiseman’s deposition 

testimony, in which she specifically denied making any formal diagnosis: 

Q: Did you diagnose her with depression pursuant to the DSM diagnostic criteria? 

A: I did not diagnose her with depression on that date.  She meets the criteria for depression on September 5th, 2011. 

Q: Well, doesn’t the diagnostic criteria require a minimum of ten hours of individual therapy or counseling time prior to making a diagnosis of depression? 

A: And, as you know, I did not diagnose her with depression.  She met the criteria.  She did not continue coming in to see me, did she? 

Q: But in order to meet the criteria for depression, you need to have --- 

A: Enough time with them. 

Q: ... There’s a big distinction between “she looked like she might be depressed” and “she is diagnosed as depressed.” Okay?  And after a 70-minute session, there’s a distinction. Can you say that she was more like she looked like she might be depressed, or can you say she’s diagnosed as depressed? 

 A: I cannot say I diagnosed her with depression. 

When interpreting a statute, this court must determine the intent of the legislature, giving 

the language its plain and ordinary meaning, and giving meaning to each word.  Waddington v. 

Cox, 247 S.W.3d 567, 570 (Mo. App. E.D. 2008).  Each word in a statute is presumed to have 

meaning, and any interpretation rendering language superfluous is not favored.  White v. White, 

293 S.W.3d 1, 9 (Mo. App. W.D. 2009).  The foregoing principles dictate that a child’s health 

problem be diagnosed in order to invoke the statutory exemption, and the record before us belies  

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the trial court’s finding that Daughter was diagnosed with depression.  Compare Pickens v. 

Brown, 147 S.W.3d 89 (Mo. App. W.D. 2004) (child diagnosed with ADHD excused from 

statutory requirement).  Absent a diagnosed health problem excusing Daughter’s failure to 

maintain the statutory requirements, Father’s support obligation terminated in October 2011 

when Daughter’s course load fell below nine hours.  Father’s point II is granted, rendering moot 

his points I and III. 

 Attorney Fees 

 For his fourth point, Father asserts that the trial court erred in denying his request for 

attorney fees because the award is mandatory under §452.375.7 when one parent refuses to share 

information about the child’s health, education, and welfare.  Specifically, the statute entitles a 

parent to recover costs associated with obtaining the information being withheld.  Father claims 

that his legal fees, which exceeded $20,000 before this appeal, were necessary to obtain 

information about Daughter’s academic status (through the university portal) and about her 

mental health care (from Nancy Wiseman). 

 The trial court found, and the record confirms, that Daughter has chosen to exclude 

Father from her life.  Daughter did not inform Father about the events of the fall 2011. Daughter 

changed her portal password to block his access to her records.  It is not apparent, however, that 

Daughter’s obstructive behavior can be imputed to Mother for purposes of shifting attorney fees. 

The information-sharing responsibility of §452.340.5 rest with the child, and clearly Daughter 

shirked hers in this regard. But Mother maintained communication with Father via email and 

sent him Daughter’s schedule each semester purportedly “to be nice” and to serve as “back-up” 

to Daughter’s omissions (and to prompt his payment, to be sure).  While the record reveals 

certain omissions or oversights during the discovery process (e.g., the password, Daughter’s W-

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2s), we cannot say that Mother “refused to exchange information” as contemplated under 

§452.375 or that her conduct was so egregious as to warrant an award of attorney fees.  Father’s 

fourth point is therefore denied. However, as Father is ultimately the prevailing party on the 

central issue before the trial court, Mother’s cross-appeal for attorney fees is also denied. 

Conclusion 

 Father’s child support obligation terminated in October 2011 when Daughter ceased 

to satisfy the requirements of §452.340.5.  The trial court’s judgment is reversed and the case is 

remanded to permit the court to calculate Father’s recoupment, with interest, and to enter 

judgment accordingly. 

        __________________________________      CLIFFORD H. AHRENS, Judge  Roy L. Richter, P.J., concurs. Glenn A. Norton, J., concurs. 

- Eastern District