Buchanan v. Buchanan, WD

• Decision Date: 21 April 1992
• Docket Number: No. WD,WD
• Citation: 828 S.W.2d 946
• Parties: Michael W. BUCHANAN, Respondent, v. Barbara Jean BUCHANAN, Appellant. 44580.
• Court: Missouri Court of Appeals

Page 946

828 S.W.2d 946

Michael W. BUCHANAN, Respondent, v. Barbara Jean BUCHANAN, Appellant.

No. WD 44580.

Missouri Court of Appeals Western District.

April 21, 1992.

James J. Wheeler, Keytesville, for appellant.

Cynthia A. Suter, Kyser and Suter Law Office, Moberly, for respondent.

Before KENNEDY, P.J., and FENNER and BRECKENRIDGE, JJ.

BRECKENRIDGE, Judge.

Barbara Buchanan appeals from an order of the trial court modifying a decree of dissolution. She contends that the trial court erred by: (1) not calculating child support in accordance with Supreme Court Rule 88.01; and (2) denying her attorney's fees. The judgment is affirmed in part; reversed in part and remanded with directions.

The marriage of Barbara Buchanan and Michael Buchanan was dissolved on January 4, 1989. The decree dissolving the marriage provides for joint custody of the couple's two children, Brenda and Lance. Physical custody of the children was given to Barbara. Michael was ordered to pay $300.00 per month in child support, $150.00 per month per child, until the child enters college; then $200.00 per child per month paid directly to the child attending college. On May 30, 1990, Barbara filed a motion to modify the decree. In her motion Barbara asked for an increase in child support in conformity with Rule 88 and for her attorney's fees.

At the time of the hearing, Michael was employed as a bank vice president with an annual salary of approximately $45,000.00. Barbara's annual income was approximately $12,000.00. The daughter, the oldest child, was a resident student at William Jewell College. The cost of her tuition, room and board was shown to be $10,005.00. She received $11,529.00 in scholarships, grants and loans, $4,500.00 of which she will be required to repay. The daughter has a car on which her father had made a $1,000.00 down payment and paid a couple of the $60.00 loan installments. The balance of the loan payments have been deducted from the portion of child support paid directly to the daughter. From time to time, Michael also provided some of her clothing in addition to the child support he was obligated to pay. Barbara primarily pays for the daughter's clothing and extras, testifying at the hearing that she had spent over eight hundred dollars in the first two months of the school year.

The son, the younger child, was a junior in high school at the time of the hearing. He worked part time, primarily in the summer, using the money he made for gasoline, insurance and other expenses. The son had the use of a car provided by his father. Beyond what Michael was required to pay in child support, from time to time he also provided clothing, he paid one-half the cost of a tutor and his present wife provided spending money to the son.

In the original dissolution action Barbara received marital property valued at $11,275.00 and was allocated $3,490.00 in marital debt to repay. Barbara has not remarried. Michael received marital property valued at $64,500.00 and assumed $78,553.00 in marital debts. Michael has remarried. His present wife is employed and receives child support for her child who lives with her and Michael.

The trial court entered its order modifying the dissolution decree on December 31, 1990. In its order the court found that the child support provided by the original decree was less than 80% of that provided for under the guidelines established by Rule 88.01. The court then modified the decree, awarding $300.00 per month for support of the daughter, $200.00 to be paid directly to her and $100.00 to be paid to Barbara, and $200.00 per month for support of the son. The aggregate amount awarded, $500.00, is less than the $734.00 sum reached by following the support guidelines. The court found that the guidelines were inappropriate under the circumstances of this case. Specifically, the court found:

Because of Petitioner's continuing obligation to pay marital debts at the rate of $675 per month, and the fact that the co-parenting plan places a non-specific obligation on Petitioner to maintain a co-parenting atmosphere, the fact that he has done so, and that the co-parenting of the children under the joint custody plan has worked to the benefit of both children, the Court concludes that the child support guidelines are inappropriate in this case.

Preliminary to this finding, the trial court made findings as to the income of the parties; the division of marital property and marital debt from the dissolution; the success of the joint custody plan; and the circumstances of the children. In particular, the court expressed the fear that the daughter's eligibility for grants and scholarships might be jeopardized by additional child support. From a review of the record, there was no evidence to support this finding.

Barbara appeals from the modification order, first claiming that the trial court erred in not awarding child support in accordance with Rule 88.01, because there is no evidence to support the trial court's finding that the support guidelines were inappropriate in the instant case. Review on this matter is done under the standards established in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991). The trial court's decree will stand unless there is no substantial evidence to support it, it is against the weight of the evidence or it involves an erroneous application or declaration of the law. Id. Deference is given to the trial court's determination as to credibility and the evidence, with all inferences flowing therefrom, is viewed in the light most favorable to the judgment. Id.

Rule 88.01 provides:

When determining the amount of child support to order, a court or administrative agency shall consider all relevant factors, including:

(a) the financial resources and needs of the child (b) the financial resources and needs of the parents;

(c) the standard of living the child would have enjoyed had the marriage not been dissolved;

(d) the physical and emotional condition of the child; and

(e) the educational needs of the child. There is a rebuttable presumption that the amount of child support calculated pursuant to Civil Procedure Form No. 14 is the amount of child support to be awarded in any judicial or administrative proceeding for dissolution of marriage, legal separation, or child support. It is sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to Civil Procedure Form No. 14 is correct if the court or administrative agency enters in the case a written finding or a specific finding on the record that the amount so calculated, after consideration of all relevant factors, is unjust or inappropriate.

Compliance with the terms contained in Rule 88.01 is mandatory. Campbell v. Campbell, 811 S.W.2d 504, 506 (Mo.App.1991). It is, therefore, mandatory that the trial court make a finding on the record that compliance with the guidelines is unjust or inappropriate where an amount awarded differs from that calculated using Form 14. Id. In the instant case, the trial court has complied with the strictures of Rule 88.01. Although the award of support differs from that calculated using Form 14, the trial court made a specific finding that the award contemplated by the guidelines would be inappropriate in the instant case. It is that finding which is under review. Once again, the appropriate standard of review is that established under Murphy v. Carron, supra. See, Hamilton v. Hamilton, 817 S.W.2d 937 (Mo.App.1991). In making the determination that the guidelines would be inappropriate, the trial court is required to use its discretion. Id. at 940.

Barbara suggests...