Brown v. Hoefer

• Decision Date: 27 April 2001
• Citation: Brown v. Hoefer, 41 S.W.3d 926 (Mo. App. 2001)
• Parties: (Mo.App. S.D. 2001) John A. Brown, Petitioner/Appellant v. Cynthia J. (Hoefer) Childress, Respondent/Respondent. 23748 0
• Court: Missouri Court of Appeals

41 S.W.3d 926 (Mo.App. S.D. 2001)

John A. Brown, Petitioner/Appellant v. Cynthia J. (Hoefer) Childress, Respondent/Respondent.

23748

Missouri Court of Appeals Southern District

04/27/2001

Appeal From: Circuit Court of Butler County, Hon. John Bloodworth

Counsel for Appellant: Kendra Brinkley Scott

Counsel for Respondent: John M. Albright

Opinion Summary: None

Parrish, P.J., and Montgomery, J., concur.

Kenneth W. Shrum, Judge

John A. Brown("Appellant") appeals the denial of his motion to modify a child support judgment.He asserts the trial court erred in calculating the presumed support amount under Rule 88.01 and Form 14.¹Specifically, Appellant claims the court erred when it refused to make the Line 11 adjustment on Form 14.²We disagree.The trial court did not err as charged.We affirm.

FACTS

Appellant sired a child (born March 1, 1993) with Cynthia J. Childress("Respondent").The couple never married.Sometime in 1995, Respondent instituted a paternity suit against Appellant.The court found Appellant was the child's natural father and ordered Appellant to pay $249 per month in child support.

In 1997, Appellant moved to modify the judgment seeking specific visitation with the child.The court agreed and set a visitation schedule.Also, Appellant's support obligation was increased to $357 per month.

In 1999, Appellant again requested modification of the judgment.By his second motion, Appellant asked for additional visitation, joint legal custody, and a recalculation of his child support obligation.The court entered a judgment on June 11, 2000, which increased Appellant's visitation with the child from 72 overnight visits per year to 102.The court denied the joint legal custody request because "the parties have demonstrated their inability to communicate civilly due to their disdain for one another."Additionally, the court found Appellant was "not entitled to a line 11 adjustment" on the Form 14.³The only issue on this appeal is whether the trial court erred in denying Appellant a "Line 11" adjustment.STANDARD OF REVIEW

The standard of review here is that set forth in Murphy v. Carron, 536 S.W.2d 30(Mo.banc 1976).Short v. Short, 947 S.W.2d 67, 69(Mo.App.1997).The trial court's decision must be affirmed unless it is unsupported by substantial evidence, against the weight of the evidence, or misstates or misapplies the law.Murphy, 536. S.W.2d at 32[1];Short, 947 S.W.2d at 69.

DISCUSSION AND DECISION

Appellant's sole point relied on and argument in support thereof asks this court to interpret the Form 14, Line 11 adjustment and its directions and comments for use.In the directions and comments for use, there exists a caveat which reads as follows:

"If the parent receiving child support under a judgment, decree or order entered before October 1, 1998, is not receiving modifiable maintenance, then no adjustment on this line 11 shall be awarded in any proceeding to modify an award of child support."

Appellant acknowledges that a "literal reading" of this caveat would result in his never benefiting "from a Line 11 adjustment for amounts expended on overnight visitations."Despite this concession, Appellant asks this court to interpret Line 11 and its caveats contrary to the explicit language and, in doing so, find the trial court erred as a matter of law in not allowing the Line 11 adjustment.In urging reversal, Appellant argues his situation is not an evil which the purpose of the caveat sought to eliminate.Appellant claims the caveat sought to alleviate the problems of a non-custodial parent who was paying non-modifiable maintenance from reducing child support without the court being able to consider an increase in maintenance to supplement the decrease in child support.We decline Appellant's invitation to construe this clear, explicit, unambiguous rule.

If a rule of the Supreme Court of Missouri is unclear so that construction is necessary, appellate courts rely on cannons of statutory construction to arrive at its meaning.Scoggins v. Timmerman, 886 S.W.2d 135, 137[3](Mo.App.1994);Short, 947 S.W.2d at 71[8]."These cannons are, for the most part, an expression of principles deduced from common sense and long experience."Short, 947 S.W.2d at 71.However, cannons of construction are not to be resorted to where the language of the rule is clear and unambiguous.In such instances, "rummaging among the statutory canons of construction to devise a different meaning is impermissible."State ex rel. Missouri Pacific v. Koehr, 853 S.W.2d 925, 926(Mo.banc 1993).We cannot impose a different effect and form to a supreme court rule than that written if the meaning of the rule and form is clear and unambiguous.Scoggins, 886 S.W.2d at 138.The fact that Respondent was not receiving modifiable maintenance is one which is uncontested.When the trial judge disallowed Appellant the Line 11 adjustment, he was merely following the unequivocal language of the rule.The trial judge and this court both must be guided by what the Supreme Court of Missouri said in Form 14...