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Collins v. Hertenstein11/15/2005
ritten orders entered after each apportionment hearing in this case, only the final one came close to complying with this procedure, and it did not, on its face, appear to include the totals from the first two apportionment hearings in the calculations. In this respect, we agree with Mr. Wilson that the circuit court violated section 537.095. The circuit court in Parr also made a procedural error, but the supreme court, finding no error with the apportionment to the parties, affirmed its judgment, as modified to conform with the statute. Id. While we do not believe that the circuit court abused its discretion apportioning the proceeds to the parties, because we have additional issues involving the attorney's fees and expenses and interest on the punitive damages settlement, however, we are unable to simply affirm and modify the judgment.
Apportionment Ratio
Before we address the attorney's fees and other issues, we will address Mr. Wilson's claim that the 91.3/8.7 apportionment was grossly disproportionate because the circuit court followed an incorrect legal standard in making its determination. After carefully reviewing 2,000 pages of apportionment-hearing transcripts, we do not believe that the circuit court applied the wrong standard or abused its discretion in deciding to approximate a 90/10 split between the parents. See Haynes v. Bohon, 878 S.W.2d 902, 904-05 (Mo. App. E.D. 1994) (court affirms 90/10 split between parents of deceased 14-year-old because child only saw father occasionally, and father's sporadic gifts of money and clothing did not amount to regular support); Glasco v. Fire & Cas. Ins. Co., 709 S.W.2d 550, 555 (Mo. App. W.D. 1986) (90/10 split between parents of deceased 12-year-old child upheld "since the evidence showed the father failed to support and maintained only minimum contacts with the child from 1972 until her death in 1984.").
The circuit court, which is in the best position to make credibility determinations, considered the time each parent had spent with the decedent, and used that as an approximate measure of the loss each suffered due to the death of their young son under section 537.095. While Mr. Wilson argues that it is the quality of the time spent with the decedent that matters in making a wrongful death apportionment, the testimony reveals that the decedent filled his father's shoes in his mother's single parent household during most of his 13 years, and only spent a limited amount of time with his father during the transitory interludes when Mr. Wilson was not incarcerated. Ms. Collins provided all necessary support to the child, while Mr. Wilson only occasionally gave the child money or paid for some of his clothes or food or activities. Those chores the child did while spending time with Mr. Wilson inured more to the benefit of those relatives with whom Mr. Wilson stayed while out of prison than to Mr. Wilson in his own right. Because the apportionment was not grossly excessive or inadequate, Kavanaugh, 937 S.W.2d at 246, we conclude that the circuit court did not abuse its discretion and must affirm its apportionment decision. Wright, 908 S.W.2d at 868-69.
In this case, the total judgment was $1.31 million. In total, Mr. Wilson was awarded $114,000 before paying attorney's fees and expenses. This amount is short of a ten percent award; if the circuit court, after reviewing the evidence in the case, confirms that Mr. Wilson should actually have received ten percent of the total, the award should be adjusted.
Attorney's Fees
Mr. Wilson claims that the circuit court erred in making three separate apportionments of attorney's fees and expenses and in not considering the cumulative effect of the e
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