Adams v. Adams (In re Adams)

• Decision Date: 18 November 2013
• Docket Number: No. SD 32449.,SD 32449.
• Citation: 414 S.W.3d 29
• Parties: In re the MARRIAGE OF Sunny Rae ADAMS and Farris Wayne Adams. Sunny R. Adams, Petitioner–Respondent, v. Farris W. Adams, Respondent–Appellant.
• Court: Missouri Court of Appeals

414 S.W.3d 29

In re the MARRIAGE OF Sunny Rae ADAMS and Farris Wayne Adams.Sunny R. Adams, Petitioner–Respondent,

v.Farris W. Adams, Respondent–Appellant.

No. SD 32449.

Missouri Court of Appeals,

Southern District,

Division Two.

Nov. 18, 2013.

Michael L. Jackson, Jackson, MO, for appellant.

Allen E. Moss, Jr., Cape Girardeau, MO, for respondent.

JEFFREY W. BATES, P.J.

Farris Adams (Husband) appeals from the trial court's judgment dissolving his marriage to Sunny Adams (Wife). The judgment ordered Husband to pay $974 per month as child support for their two children, who were nine and six at the time of trial. Husband presents three points. In Point I, he contends the trial court erred in ordering the child support award because the trial court's Form 14 calculations were incorrect, and the award placed “an unsupportable financial burden” on him. In Point II, Husband argues the trial court erroneously found that Husband and Wife agreed to split the children's future post-secondary educational expenses. In Point III, Husband argues the trial court erred in ordering Husband to pay a lump sum to Wife to equalize the division of property because there was no evidence that Husband had the means to make a lump sum payment. Finding no merit in any of Husband's points, we affirm the trial court's judgment.

Prior to trial, the parties stipulated that they would share joint legal and joint physical custody of the children, and they agreed to a custody schedule. The primary issues at trial were the calculation of child support and the division of marital property. Both Husband and Wife testified, and they each submitted a Form 14. The trial court rejected both forms and prepared its own. The trial court's Form 14 calculated that Husband owed presumed child support in the amount of $974 per month. The court believed Wife's testimony that she incurred monthly childcare costs in the amount of $590. The court found that the parties had agreed Husband would pay future childcare costs for one child, and the court ordered Husband to pay all outstanding childcare bills. The judgment provided that the children would receive health insurance through Wife's employer because it was the “best available coverage at [that] time.” Both the childcare and health insurance costs were included in the court's Form 14 and used to calculate the presumed child support amount Husband was ordered to pay. The judgment also stated that the parties had agreed to split future post-secondary educational expenses equally.

The court also heard evidence on marital assets and debts. The judgment valued the items of marital property and divided them between the parties. The court determined Husband's company, Adams Masonry, LLC, (Adams Masonry) and all its assets were marital property. The court awarded Adams Masonry, valued at $20,500, to Husband. Husband received $42,550 of the marital estate, and Wife received $14,360. In order to make the division of property equitable, the court ordered Husband to pay Wife $14,095 within ninety days of the entry of judgment. This appeal followed. Additional facts necessary to the disposition of the case are included below as we address Husband's three points on appeal.

Our review in a court-tried case is governed by Rule 84.13(d), and we must affirm the trial court's judgment unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. In re Marriage of Noland–Vance, 344 S.W.3d 233, 237 (Mo.App.2011).¹ The party challengingthe decree bears the burden of demonstrating error. Id. We view the evidence in the light most favorable to the judgment and defer to the trial court regarding credibility determinations and assigning weight to witness testimony. Youngberg v. Youngberg, 194 S.W.3d 886, 889 (Mo.App.2006). “The trial court is free to believe all, none, or part of the testimony of any witness.” Id. In addition, we consider all fact issues upon which no specific findings were made to have been found in accordance with the result reached. Rule 73.01(c); Surrey Condominium Ass'n, Inc. v. Webb, 163 S.W.3d 531, 536 (Mo.App.2005).

Point I

In Husband's first point, he contends the trial court erroneously calculated his monthly child support obligation because: (1) the court incorrectly valued Wife's monthly childcare and health insurance expenses; (2) the court denied Husband an overnight visitation credit; and (3) the award placed “an unsupportable financial burden” on Husband. Husband's first point contains multiple allegations of error, is multifarious in violation of Rule 84.04(d) and preserves nothing for appellate review. Atkins v. McPhetridge, 213 S.W.3d 116, 120–21 (Mo.App.2006). Because the deficiencies do not impede our disposition on the merits, however, we exercise our discretion to review Husband's point ex gratia. Jeffus v. Jeffus, 375 S.W.3d 862, 863 n. 1 (Mo.App.2012).

In the first sub-part of Point I, Husband argues that the child support award is not supported by the evidence or is against the weight of the evidence because of the childcare and health insurance costs that the trial court included in its Form 14 calculation.

“Not supported by substantial evidence” and “against the weight of the evidence” are two separate challenges to the evidentiary basis of the trial court's judgment, each requiring “a distinct analytical framework [.]” Houston v. Crider, 317 S.W.3d 178, 186–87 (Mo.App.2010). A not-supported-by-substantial-evidence challenge requires the completion of three sequential steps. The appellant must:

(1) identify a challenged factual proposition, the existence of which is necessary to sustain the judgment;

(2) identify all of the favorable evidence in the record supporting the existence of that proposition; and,

(3) demonstrate why that favorable evidence, when considered along with the reasonable inferences drawn from that evidence, does not have probative force upon the proposition such that the trier of fact could not reasonably decide the existence of the proposition.

An against-the-weight-of-the-evidence challenge requires completion of four sequential steps. The appellant must:

(1) identify a challenged factual proposition, the existence of which is necessary to sustain the judgment;

(2) identify all favorable evidence in the record supporting the existence of that proposition;

(3) identify the evidence in the record contrary to the belief of that proposition, resolving all conflicts in testimony in accordance with the trial court's credibility determinations, whether explicit or implicit; and,

(4) demonstrate why the favorable evidence, along with the reasonable inferences drawn from that evidence, is so lacking in probative value, when considered in the context of the totality of the evidence, that it fails to induce belief in that proposition.

Id. at 187. Failure to follow the applicable framework means the appellant's argument is analytically useless and provides no support for his or her challenge. Id. at 188.

That principle applies here. Husband has completely ignored the evidence presented at trial and instead provided his own “recalculation” of Wife's childcare and insurance costs using figures that were not part of the evidence presented at trial.² In determining the evidentiary support for the trial court's judgment, we are not permitted to consider matters outside the record on appeal. Reliable Roofing, LLC v. Jones, 302 S.W.3d 232, 234 (Mo.App.2009). Because Husband's arguments are analytically useless, we deny this prong of his argument.

In the second prong of Point I, Husband argues that the trial court erred by denying him a 10% downward adjustment of his child support obligation because he is supposed to have overnight custody of the children at least 92 nights per year. We disagree. As explained in the directions and comments to Form 14, Line 11, a parent obligated to pay support generally is entitled to an adjustment based on the number of overnight periods of custody exercised by that parent per year.³ Generally, “[i]f the paying parent has custody or visitation of the child between 92 and 109 days per year, the circuit court must make a ten percent adjustment in the child support obligation.” Russell v. Russell, 210 S.W.3d 191, 198 (Mo. banc 2007). However, the general directions contain a caveat and two exceptions:

CAVEAT: Except as provided in the next paragraph, an adjustment on line 11 shall not be allowed unless the adjusted monthly gross income of the parent entitled to receive support (line 3) exceeds the amounts set forth in the table below for the appropriate number of children.

1 child

2 children

3 children

4 children

5 children

6 children

$1,350

$1,700

$1,900

$2,100

$2,300

$2,600

Notwithstanding the amounts set forth in the table above, an adjustment may be given if:

(1) The parent entitled to receive support is unemployed or underemployed because the expenses of that parent are paid, in whole or in part, by a person with whom that parent cohabits, or

(2) The adjusted monthly gross income of the parent obligated to pay support (line 3) less the presumed child support amount (line 12) is equal to or less than the amounts set forth in the table above for the appropriate number of children.

Form 14, Line 11, Caveat (footnote omitted and underlining added).

Here, Wife's adjusted monthly gross income of $1,631 was below the $1,700 threshold in the caveat.⁴ Therefore,the mandatory adjustment at issue in Russell does not apply. Husband relies upon evidence that his adjusted monthly gross income of $2,000, minus the presumed child support amount of $974, was sufficient to invoke the second exception to the caveat. That exception, however, merely provides the trial court with the discretionary authority to grant an adjustment. See Form 14, Line 11, Caveat (“ an adjustment may be given ”); Sarwar v. Sarwar, 117 S.W.3d 165, 172–73 (Mo.App.2003) (indicating the use of the word “may” in the...