Allen v. Allen, WD

• Decision Date: 03 February 1998
• Docket Number: No. WD,WD
• Citation: 961 S.W.2d 891
• Parties: Lynn L. ALLEN, Appellant, v. Bobbie J. ALLEN, Respondent. 53659.
• Court: Missouri Court of Appeals

Page 891

961 S.W.2d 891

Lynn L. ALLEN, Appellant, v. Bobbie J. ALLEN, Respondent.

No. WD 53659.

Missouri Court of Appeals Western District.

Feb. 3, 1998.

Richard A. Koehler, Butler, for appellant.

John Logan Pursley, Butler, for respondent.

Before ULRICH, C.J., and SMART, J., and TURNAGE, Senior Judge.

ULRICH, Chief Judge.

Lynn L. Allen (Husband) appeals the judgment of the trial court dissolving his marriage to Bobbie J. Allen (Wife). He claims that the trial court abused its discretion in (1) calculating the amount of child support payable by Wife, (2) awarding maintenance to Wife, and (3) ordering him to pay $5000 to Wife as part of the division of property. The judgment of the trial court is affirmed in part as modified and reversed in part. The case is remanded to the trial court for further findings.

FACTS

Husband and Wife were married June 15, 1980. Both had been previously married and had children from the prior marriages. In September 1992, Husband and Wife adopted two of Husband's grandchildren, Aaron, born May 14, 1986, and Ashley, born June 10, 1987.

During the marriage, the roles of Husband and Wife were fairly traditional. Generally, Husband was the wage earner, and Wife stayed home with the children. Husband first worked at Peerless in Ft. Scott, Kansas, and then at Ward Rebuilt in Fairfax, Kansas. Wife was employed outside of the home for a few months as a cake decorator. She started work as a part-time grocery store cashier after the separation.

Shortly after the children were adopted, Husband and Wife began experiencing problems. Wife attempted suicide in September 1994. As a result of the suicide attempt, Wife received therapy and medication that continued through the dissolution.

Husband and Wife separated on July 5, 1996. Thereafter, Husband withdrew $11,000 from the couple's checking and savings accounts. ¹ He then filed a petition for dissolution of marriage on August 5, 1996, asking the trial court to dissolve his marriage to Wife, award custody of the two minor children to him, order Wife to pay child support, and divide the marital property and debt. Wife filed a counter-claim on August 13, 1996, requesting the trial court to award her maintenance and attorney's fees.

During trial, Wife submitted a completed Form 14, and both parties introduced exhibits listing the marital property, their opinions of the property's value, and their respective incomes and expenses. Wife also filed exhibits relating to her attorney's fees, medical expenses, and psychiatric therapy.

The trial court issued its judgment and decree of dissolution of marriage on October 30, 1996. In its judgment, the trial court dissolved the parties' marriage, divided the marital property and debt and ordered Husband to pay $5000 to Wife, awarded custody of the children to Husband with reasonable visitation to Wife, ordered Wife to pay $187 per month in child support, and ordered Husband to pay Wife maintenance of $400 per month. Husband was also ordered to pay Wife's attorney's fees of $1000. This appeal followed.

STANDARD OF REVIEW

In a dissolution action, the judgment of the trial court must be affirmed on appeal unless it is not supported by substantial evidence, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Hoffmann v. Hoffmann, 676 S.W.2d 817, 818 (Mo. banc 1984); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The party challenging a dissolution decree bears the burden of demonstrating error. Crews v. Crews, 949 S.W.2d 659, 663 (Mo.App.1997).

A child support provision in a dissolution decree will be upheld unless the trial court abused its discretion or erroneously applied the law. Id. at 664. The trial court's award of child support will not be disturbed on appeal "unless the evidence is 'palpably insufficient' to support it." Id. (quoting Elliott v. Elliott, 920 S.W.2d 570, 575 (Mo.App.1996)).

The trial court also has broad discretion in ordering maintenance and dividing marital property. Crews, 949 S.W.2d at 663. In reviewing maintenance orders, "[t]he evidence is viewed favorable to the decree, disregarding evidence to the contrary and deferring to the trial court even if the evidence could support a different conclusion." Id. (quoting Allen v. Allen, 927 S.W.2d 881, 885 (Mo.App.1996)). An appellate court will not interfere with an award of maintenance unless it is "patently unwarranted or is wholly beyond the means of the spouse who pays maintenance." Allen v. Allen, 927 S.W.2d 881, 885 (Mo.App.1996). A trial court's division of marital property will only be disturbed on appeal if it is so "heavily and unduly weighted in favor of one party as to amount to an abuse of discretion." Crews, 949 S.W.2d at 663 (quoting Dodson v. Dodson, 904 S.W.2d 3, 6 (Mo.App.1995)).

I. CHILD SUPPORT

Husband's first point on appeal concerns the trial court's calculation of child support. He claims that the court abused its discretion when it deviated from the presumed correct child support amount calculated pursuant to Rule 88.01 utilizing Form 14 without a finding that the presumed amount was unjust or inappropriate.

Initially, Wife argues that Husband has waived any complaint he has with the trial court's award of child support because he failed to file a Form 14 with the court. Husband contends that he disputes only the trial court's deviation from the presumed amount, not the calculations in Wife's Form 14 including the presumed child support amount. He contends, therefore, that he was not required to file his own Form 14. Husband's contention is correct. If the parties agree upon the amounts to be used in completing a Form 14, only one form need be submitted. Luker v. Luker, 861 S.W.2d 195, 199 (Mo.App.1993). One party's failure to file a Form 14, therefore, acknowledges agreement with the Form 14 filed by the other spouse. Because Husband disputes the trial court's deviation from the presumed child support amount, he did not waive the issue on appeal by failing to file a Form 14.

Rule 88.01 and section 452.340 ² establish the procedure for determining child support. Woolridge v. Woolridge, 915 S.W.2d 372, 375 (Mo.App.1996). First, the trial court is required to determine and find for the record the presumed correct child support amount pursuant to a correct Form 14 calculation. Id. at 379. A rebuttable presumption exists that the amount of child support calculated pursuant to Form 14 is the amount of child support to be awarded. Rule 88.01; § 452.340.8. The use of Form 14 in calculating child support is mandatory and insures that the child support guidelines will be considered in every case as mandated in section 452.340.7 and Rule 88.01. Woolridge, 915 S.W.2d at 378-379.

Next, the trial court is required to consider whether to rebut the presumed correct child support amount as being unjust or inappropriate after consideration of all relevant factors. Rule 88.01; § 452.340.8; Woolridge, 915 S.W.2d at 379. If the trial court decides to rebut the presumed child support amount after consideration of all relevant factors, it is explicitly required by Rule 88.01 to enter a written finding or a specific finding on the record that the calculated amount is unjust or inappropriate. Rule 88.01.

In this case, the trial court, without explanation, set Wife's monthly child support obligation at $187. It found for the record that Husband's monthly income was $2283 and Wife's monthly income was $749. It also found that Husband received a social security payment for the children of $316 per month. It then computed combined child support costs to be $1067, which included work-related child care costs and health insurance costs for the children. The trial court, however, failed to determine on the record the presumed correct child support amount for Wife, ³ or the rebuttal of the presumed correct amount after consideration of all relevant factors.

Wife argues that the trial court determined the presumed child support amount as calculated on her Form 14 was unjust and inappropriate in that Husband received $316 in social security benefits on behalf of the children. She contends, therefore, that the court credited her presumed support obligation for that part of the social security benefits proportionate to her share of the combined income. While such a computation results in a child support obligation of $187 per month, no findings on the record by the trial court exist that such determinations were made. See Woolridge, 915 S.W.2d at 377 (although respondent asserted in her brief that both parties were advised of the court's reasons for a deviation from the presumed child support amount, the reasons were never articulated in the record).

Without an adequate record in this case regarding the presumed child support amount or a determination that the presumed amount is unjust or inappropriate, meaningful appellate review is impossible. Neal v. Neal, 941 S.W.2d 501, 504 (Mo. banc 1997); Woolridge, 915 S.W.2d at 380. The judgment of the trial court, therefore, is reversed, and the case is remanded to the court to determine for the record, pursuant to Woolridge, the presumed child support amount and, then, if the presumed amount is inappropriate, to make a proper record of the reason the presumed correct child support amount should be rebutted. Neal, 941 S.W.2d at 504.

II. MAINTENANCE

In his second point on appeal, Husband claims that the trial court abused its discretion in awarding Wife maintenance of $400 per month until she remarries or is earning (or is capable of earning) $1400 per month. He argues that the trial court failed to make the requisite findings under section 452.335.1 to award maintenance. He also contends that the court failed to consider his financial resources or Wife's affirmative duty to seek employment in setting the amount and duration of maintenance.

Section 452.335.1 provides that the trial court may grant a maintenance...