Blevins v. Blevins

• Decision Date: 15 April 2008
• Docket Number: No. WD 68182.,WD 68182.
• Citation: Blevins v. Blevins, 249 S.W.3d 871 (Mo. App. 2008)
• Parties: John S. BLEVINS, Appellant, v. Allison Kay BLEVINS, Respondent.
• Court: Missouri Court of Appeals

249 S.W.3d 871

John S. BLEVINS, Appellant, v. Allison Kay BLEVINS, Respondent.

No. WD 68182.

Missouri Court of Appeals, Western District.

April 15, 2008.

Mark Hubbard, Platte City, for appellant.

James Boggs, Kansas City, for respondent.

PAUL M. SPINDEN, Presiding Judge.

John S. Blevins appeals the circuit court's judgment to modify his obligation to pay child support for his son and daughter. Blevins complains of several errors in the circuit court's Form 14 calculation. He also asserts error in the court's ordering him to pay one-half of his son's past college expenses. We affirm the circuit court's judgment in part and reverse and remand it in part.

On May 10, 1994, the circuit court ordered Blevins to pay $742 a month in child support. On August 2, 2004, Blevins' former wife, Allison Kay Roberts, filed a motion asking the circuit court to modify Blevins' child support obligation because the children were older, their expenses were greater, and Blevins' income had increased. She also averred that their son's expenses would increase because he was beginning college study that fall. She contended that these changes were substantial and continuing and warranted modification.

After a hearing on Roberts' motion, the circuit court ordered Blevins to pay $1520 a month in child support until his son became emancipated and $1201 a month after then.¹ The circuit court also ordered Blevins to pay half of his son's past college expenses, which the circuit court set at $9350. Blevins appeals.

Roberts moves to dismiss Blevins' appeal on the grounds that Blevins has not yet paid the $9350 and is in arrears on his child support obligation. She contends that a party that is not in compliance with a court's order is not entitled to affirmative relief. She cites Richman v. Richman, 350 S.W.2d 733, 735 (Mo.1961); Staples v. Staples, 895 S.W.2d 265, 267 (Mo. App.1995); and O'Neal v. Beninate, 601 S.W.2d 657, 658 (Mo.App.1980). In Staples, this court's Eastern District affirmed the circuit court's dismissing a party's motion to modify maintenance because he had an outstanding maintenance arrearage. 895 S.W.2d at 267. In O'Neal, the Eastern District extended this principle to apply to child support orders, but it found that a party's motion to modify could proceed because he was current in his child support payments. 601 S.W.2d at 658-59.

This principle, however, does not apply to Blevins' case. Blevins is appealing an adverse judgment. He is not seeking affirmative relief.² None of the cases cited by Roberts stands for the proposition that a party's compliance with a judgment while appeal of that judgment is pending is a prerequisite to the party's maintaining the appeal. We deny Roberts' motion to dismiss the appeal.

In his first point, Blevins asserts several errors in the circuit court's calculation of the Form 14 presumed child support amount. We accord the circuit court broad discretion in awarding child support. MacDonald v. Minton, 142 S.W.3d 247, 250 (Mo.App.2004). We will not disturb an award unless we find that the circuit court abused its discretion or "that the evidence is palpably insufficient to support the award." Vendegna v. Vendegna, 125 S.W.3d 911, 913 (Mo.App.2004).

Blevins first argues that the circuit court did not have competent and substantial evidence to support its determination that his monthly income was $9000. Blevins testified that his annual salary from a corporation in which he and his current wife are the only stockholders was $32,500, and he asked the court to find that his gross monthly income was $2708.

Roberts requested that the court use a much higher figure for Blevins' income. She offered Blevins' 2005 corporate tax return, which indicated that the corporation had taken a $150,000 depreciation deduction and a $25,000 travel and entertainment expense deduction that year. On the Form 14 that Roberts offered, she asked that the court find Blevins' monthly income to be $15,475. Roberts testified that she arrived at this amount by adding the depreciation and travel and entertainment expense deductions to Blevins' salary.

Blevins argues that competent and substantial evidence does not support the court's determination that his monthly income is $9000. We agree. If the court arrived at this amount by including a portion of the corporation's depreciation and travel and expenses deductions in Blevins' income, it erroneously applied the law. The directions for completing Form 14 discuss when consideration of depreciation and other deductions is appropriate in determining a parent's gross income:

If a parent receives rents or royalties or is self-employed, in a sole proprietorship, or business with joint ownership, "gross income" is gross receipts minus the ordinary and necessary expenses incurred to produce such receipts. Depreciation, investment tax credits and other non-cash reductions of gross receipts may be excluded from such ordinary and necessary expenses.

Form 14, DIRECTIONS, COMMENTS FOR USE AND EXAMPLES FOR COMPLETION OF FORM NO. 14, Line 1: Gross Income. In sole proprietorships or partnerships, taxes are not assessed against the business entities, but income and losses, including depreciation, pass through to the individual tax returns of the proprietor, partners, or, in the case of subchapter S corporations, the shareholders. See Thill v. Thill, 26 S.W.3d 199, 207 (Mo.App.2000) (discussing effect of depreciation on gross income of parent who was partner in a partnership and shareholder in subchapter S corporations). Depreciation and other deductions can reduce a parent's income from these types of businesses in a way that renders the income listed on the parent's individual tax return as not representative of the true amount of cash or benefit available to the parent and, therefore, available for supporting a child. Id.

None of these situations are involved in Blevins' case. Blevins' business was a C corporation—not a sole proprietorship, a business with joint ownership, or a subchapter S corporation. The corporation paid taxes on its income. Hence, the corporation—not Blevins or his wife—received the benefit of the depreciation and travel and entertainment expense deductions. Form 14's directions, permitting the circuit court to consider depreciation and other non-cash reductions of gross receipts determine gross income, did not apply to Blevins' C corporation.

Without the corporation's deductions, the record does not support the circuit court's determination that Blevins' monthly income was $9000. Although the circuit court heard evidence that the corporation had retained earnings and Form 14's directions permit the circuit court to include retained earnings in determining a parent's gross income after considering certain factors,³ the corporation's retained earnings for 2005 were only $32,000. The inclusion of the entire amount of the corporation's retained earnings would not support setting Blevins' monthly income at $9000.⁴

The evidence was insufficient to support the circuit court's determination that Blevins' monthly income was $9000. We reverse the child support award and remand to the circuit court to determine Blevins' monthly income based on the evidence and to recalculate the child support amount accordingly.

Blevins next argues that the circuit court's Form 14 calculation was incorrect because the circuit court did not impute income to Roberts. The court found Roberts' income to be $2222 a month, based on her testimony that she was working 20 hours a week and making approximately $27 an hour. Blevins contends that the court should have imputed income to Roberts because she testified that she "probably" could work full-time at the same hourly rate but chose to work only part-time.

Blevins waived any complaints about Roberts' income. In his proposed Form 14 calculation, he did not impute income to Roberts and used Roberts' income based on her working only part-time. Furthermore, Blevins testified that he was asking the circuit court "to be fair" and was "not imputing any additional income that [Roberts] might be making."

"A party may not complain on appeal of an error in which that party joined or acquiesced at trial." In re Marriage of Glueck, 913 S.W.2d 951, 956 (Mo.App. 1996). Blevins "cannot invite error by filing a Form 14 which had no income imputed to [the other party], and then complain when the trial court did as he requested." Harris v. Parman, 54 S.W.3d 679, 685 (Mo.App.2001).

Blevins next asserts that the circuit court's Form 14 calculation was erroneous because it included the $304 monthly premium that Roberts paid for additional health insurance as additional child-rearing cost. The circuit court's original judgment had ordered Blevins to maintain the children's health insurance. Blevins provided health insurance for the children.

Roberts acknowledged that Blevins had obtained a health insurance policy that covered the children, but she testified that she chose to buy additional health insurance as extra coverage. Blevins argues that he should not have to pay for both policies. He also contends that Roberts' health insurance policy is not limited to their two children; thus, the circuit court's including the entire amount of the monthly premium in its Form 14 calculation resulted in his paying a portion of health insurance coverage for Roberts' husband.

The circuit court has the discretion to order both parents to provide health insurance benefits for the children. Nelson v. Nelson, 25 S.W.3d 511, 522 (Mo. App.2000) (citing Section 454.603.7, RSMo). Blevins does not deny that the additional health insurance is beneficial to the children. Lenger v. Lenger, 939 S.W.2d 11, 13 (Mo.App.1997). We find that the circuit court did not abuse its discretion in including the cost of extra health insurance coverage as additional child-rearing costs in its Form 14 calculation.

The record is unclear, however, concerning whether or not the $304...