Blomenkamp v. Blomenkamp

• Citation: 462 S.W.3d 429
• Decision Date: 28 April 2015
• Docket Number: WD 77040
• Parties: Gale W. Blomenkamp, Appellant, v. Polly A. Blomenkamp, Respondent.
• Court: Court of Appeal of Missouri (US)

462 S.W.3d 429

Gale W. Blomenkamp, Appellant

v.Polly A. Blomenkamp, Respondent.

WD 77040

Missouri Court of Appeals, Western District.

FILED: April 28, 2015

Motion for Rehearing and/or Transfer to Supreme Court Denied June 2, 2015

Helen L. Wade, Columbia, MO for appellant, for Appellant.

Gary L. Stamper, Columbia, MO for respondent, for Respondent.

Before Division One: Thomas H. Newton, Presiding Judge, Lisa White Hardwick and Anthony Rex Gabbert

Opinion

Lisa White Hardwick, Judge

Gale Blomenkamp (Father) appeals from a judgment granting Polly Blomenkamp's (Mother) motion for modification of child support and child custody. Father contends the circuit court erred in: (1) finding a change of circumstances to support the child support modification; (2) calculating the amount of child support; and (3) finding the statutory requirements were met to justify a change of custody. For reasons explained herein, we find no error and affirm the judgment.

Factual and Procedural History

Gale Blomenkamp and Polly Blomenkamp were divorced on December 22, 2005. The dissolution judgment awarded the parties joint physical and legal custody of their two children, Krista and Bo, who were eleven years old and six years old respectively at the time of the divorce. The court approved a parenting plan whereby the parties agreed to alternate physical custody of the children every other week and neither party paid child support. This custody arrangement continued until late November 2011, when Krista moved in with Mother on a fulltime basis. At that time, Krista was seventeen years old and had become dissatisfied that Father did not treat her more like an adult. Bo continued to spend alternate weeks at both parents' homes after Krista moved in with Mother.

On February 17, 2012, Mother filed a Motion to Modify the Dissolution Judgment, in which she sought sole physical custody of Krista, an award of child support, and an order requiring the parties to proportionately share the children's college expenses. After a hearing in January 2013, the court granted the motion. The court found a change of circumstances had occurred because the “de facto move by Krista is evidence of a voluntary relinquishment of custody by Father.” The court made the following findings in awarding Mother sole physical custody of Krista:

The Court finds there has been a change in the circumstances of Krista Blomenkamp and of Mother since the decree of dissolution of marriage, and that modification of the decree to change physical custody from joint to sole in Mother is necessary to serve the best interests of the child. To fail to recognize that the 18–year–old daughter has not stayed overnight with her father's family more than occasionally for well over a year, has no intention of living in her father's household, graduates high school in the spring of 2013, plans to undergo Marine basic training and become a U.S. Marine reserve, and is to become a University of Missouri student when her Marine training and scholarship opportunity allow is to perpetuate a fiction of joint physical custody of this child which the Blomenkamps have long since left behind.

The modification judgment also ordered child support as follows:

[Father] is ordered to pay as child support one-third of the cost of post-secondary education costs and the amount of $786 per month for so long as he is obligated to pay support for both children, of which $573 is for Krista and $213 is for Bo; and [Father] is ordered to pay as child support one-third of the cost of post-secondary education costs and the amount of $213 for so long as he is obligated to pay support for Bo only.

Father appeals the custody and child support award in the judgment of modification.

Standard of Review

Our review of a modification of dissolution of marriage decree is limited to determining whether the judgment is supported by substantial evidence, whether it is against the weight of the evidence, or whether it erroneously declares or applies the law. Selby v. Smith, 193 S.W.3d 819, 824 (Mo.App.2006). In applying this standard, we view the evidence in the light most favorable to the judgment, disregarding all contrary evidence and giving deference to the trial court's determinations of credibility. Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991). The determination to award a modification in child support lies within the discretion of the trial court, whose decision will be reversed “only for abuse of discretion or misapplication of the law.” Smith, 193 S.W.3d at 824. Giving similar deference, we will not set aside a trial court's judgment on child custody unless we firmly believe that the decree is wrong and that the child's welfare requires another disposition. Hermann v. Heskett, 403 S.W.3d 136, 140 (Mo.App.2013).

Analysis

Modification of Child Support

In Point I, Father contends the circuit court erred in awarding child support in the modification judgment because Mother failed to meet the statutory requirement of proving a change of circumstances “so substantial and continuing as to make the terms [of the original judgment] unreasonable.” § 452.370.1, RSMo.¹ Specifically, Father argues that Mother failed to produce any evidence to show how her income or expenses have changed since the entering of the original decree in 2005. In response, Mother asserts there was evidence of changed circumstances in that: (1) both parties shared physical custody equally at the time of the 2005 dissolution, but now Krista lives with Mother on a full-time basis; and (2) the original divorce decree did not contemplate post-secondary education expenses, but Krista is now a high school senior with a bona fide intention to attend college.

“A change in the parties' financial circumstances or in the children's needs may evidence a showing of substantial and continuing change” as required by Section 452.370. Eaton v. Bell, 127 S.W.3d 690, 697 (Mo.App.2004). “Increases in the cost of living, which occur with the growth and maturing of children, have been held to constitute substantial and continuing change allowing for modification in child support.” Buckman v. Buckman, 857 S.W.2d 313, 318 (Mo.App.1993). Moreover, “[i]t has long been recognized that payment of college expenses can constitute a substantial change of circumstances.” Gordon v. Gordon, 924 S.W.2d 529, 535 (Mo.App.1996). In Leahy v. Leahy, 858 S.W.2d 221, 223 (Mo. banc 1993), the Missouri Supreme Court affirmed the trial court's finding of substantial change based, in part, on the fact that the child planned to attend college the following semester and such college expenses were unknown at the time of the prior order.

Here, Mother testified that Krista had received an acceptance letter from the University of Missouri with a prospective enrollment date for the Fall of 2013. Krista testified that she intended to enroll at that time. As in Leahy, the trial court found that Krista had “bona fide educational goals” and the prior dissolution decree made no mention of post-secondary educational expenses. The trial court also explicitly found that both Krista and Bo were of “appropriate” ages for the court's consideration of college expenses and that both parents had the ability to contribute to such expenses. See DeCapo v. DeCapo, 915 S.W.2d 343, 348 (Mo.App.1996) (stating that “[t]he trial court is in the best position to determine the financial capability of a parent to assist in the support of the parent's child, including college expenses”).

As the initial dissolution decree made no arrangement for the payment of post-secondary educational expenses, evidence of Krista's recent acceptance and intention to attend college was sufficient to establish substantial and continuing changed circumstances to justify modification of the initial decree.² Point I is denied.

In Point II, Father argues that the trial court erred in calculating the Form 14 presumed child support amount (PCSA) in three respects. First, he argues that the trial court should have included $950 of monthly rental income in its Form 14 calculation of Mother's gross income. Second, Father argues that the trial court erred in awarding him a 10% Line 11 adjustment for overnights spent with the children because he was entitled to a greater adjustment of 34%–50%. Third, Father contends the PCSA should have been rebutted based on his “non-duplicated, fixed expenses” for the children's extra-curricular activities.

Section 452.340 and Rule 88.01 mandate the use of Form 14 guidelines in determining child support. Woolridge v. Woolridge, 915 S.W.2d 372, 378 (Mo.App.1996). The trial court must calculate the child support amount pursuant to Form 14, either by accepting one of the parties' proposed calculations, or by rejecting the parties proposed Form 14s and preparing its own. Douglas–Hill v. Hill, 1 S.W.3d 613, 616 (Mo.App.1999). “There is a presumption that the amount of child support calculated pursuant to Form 14 is the amount of child support to be awarded.” Id. The PCSA, however, may be rebutted if the trial court finds it to be unjust or inappropriate after considering all relevant circumstances. Id.

Father notes that Mother receives $950 in monthly rental income from property she owns. He argues that the court erred in failing to include the rental proceeds in its Form 14 calculation of Mother's gross income. However, Father fails to acknowledge the evidence that Mother also pays $1,040 in monthly mortgage payments on the rental property. Father cites no authority for his contention that the $950 rental income must be included in the court's calculation under these circumstances. In light of the evidence that Mother's rental proceeds did not cover or exceed her mortgage expense on the property, the trial court did not abuse its discretion in excluding the proceeds from Mother's gross income on the Form 14 calculation.

Father also argues that the trial court erred in its calculation of the applicable adjustment for overnight stays under Line 11 of...