Buckman v. Buckman

• Decision Date: 04 May 1993
• Docket Number: No. 61568,61568
• Citation: Buckman v. Buckman, 857 S.W.2d 313 (Mo. App. 1993)
• Parties: In re the Marriage of Daniel Lee BUCKMAN, Appellant, v. Mary Alyce BUCKMAN, n/k/a Mary Alyce Guth, Respondent.
• Court: Missouri Court of Appeals

Page 313

857 S.W.2d 313

In re the Marriage of Daniel Lee BUCKMAN, Appellant, v.Mary Alyce BUCKMAN, n/k/a Mary Alyce Guth, Respondent.

No. 61568.

Missouri Court of Appeals,

Eastern District,

Division Three.

May 4, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 10, 1993.

Application to Transfer Denied Aug. 17, 1993.

Theodore S. Schechter, Michael L. Schechter, Clayton, for appellant.

Kenneth S. Lay, Clayton, for respondent.

STEPHAN, Judge.

Daniel Lee Buckman("Father") appeals from a trial court order: (1) sustaining Mary Alyce Buckman's, now known as Mary Alyce Guth's ("Mother"), motion to modifythe parties' dissolution decree; and (2) denying his motion to modify said decree.Specifically, Father appeals from portions of the judgment: (1) increasing the amount he has to pay for child support; (2) ordering him to pay college expenses for Patricia Anne Buckman; (3) ordering him to pay a portion of Mother's attorney's fees; and (4) ordering him to pay a portion of the guardian ad litem's fee.Father also contends that the trial court failed to make certain requested findings of fact.We affirm.

On June 7, 1982, a trial court dissolved Father's and Mother's marriage.Pursuant to their dissolution decree, the trial court awarded Mother the care, custody and control of the parties' three minor children: Patricia Anne Buckman("Tricia"), born September 17, 1973; Jennifer Lee Buckman("Jennifer"), born October 18, 1975; and Kelly Lynn Buckman("Kelly"), born June 5, 1979.The decree specified that Father pay Mother $250.00 per month per child as and for child support, for a total child support obligation of $750.00 per month.

On January 31, 1990, Mother filed a motion to modifythe parties' dissolution decree.Specifically, Mother requested that the trial court order Father to pay: (1) an increased amount as and for child support; (2)Mother's attorney's fees; and (3) litigation expenses.

On June 25, 1990, Father also filed a motion to modifythe parties' dissolution decree.Specifically, Father requested: (1) a change in custody of the minor children from Mother to joint physical and legal custody; and (2) an elimination of the child support award.

The trial court held hearings on these matters on September 10, 1991 and November 15, 1991.It issued its opinion, order and judgment on January 22, 1992, sustaining Mother's motion to modifythe parties' dissolution decree and denying Father's motion to modify said decree.Specifically, the trial court ordered Father to pay Mother $472.00 per month per child as and for child support, for a total child support obligation of $1,416.00 per month, retroactive to September 1, 1991.The trial court further ordered Father to pay to Mother one-half of the cost each year for Tricia to attend a post-secondary college, university, or vocational/technical school, state or private, subject to various limitations.Additionally, the trial court ordered Father to pay one-half of the costs of tuition, fees, books and dormitory costs for room and board for Tricia for the first semester of the 1991-1992 school year.Finally, the trial court ordered Father to pay: (1)Mother's attorney, $3,300.00, as and for a portion of Mother's attorney's fees; (2) the guardian ad litem, $2,400.00, as and for a portion of the guardian ad litem's fees; and (3) all court costs.

On or about January 19, 1992, Father filed a motion for a new trial or to amend opinion, order and judgment by overruling Mother's motion to modify.The trial court sustained two aspects of Father's motion.First, the trial court ordered that the first word of paragraph 48 of its opinion, order and judgment be changed from "Respondent" to "Petitioner".Second, the trial court sustained Father's motion by deleting paragraph 60, thereby negating Father's responsibility to pay one-half of the cost of tuition, fees, books and dormitory costs for room and board for Tricia for the first semester of the 1991-1992 school year.The trial court overruled Father's motion in all other respects.

On February 21, 1992, Father filed his notice of appeal.We will recite additional facts, as necessary, throughout the remainder of this opinion.

Father's first point is that the trial court erred in sustaining Mother's motion to modify their dissolution decree by increasing the amount of Father's child support obligation.Specifically, Father contends that Mother failed to show a change in circumstances so substantial and continuing as to make the terms of the dissolution decree unreasonable with regard to the amount of child support.Father argues that any increase in the amount of the childrens' expenses was more than offset by: (1)Mother's increased income; (2)Mother's current husband's contribution to the minor childrens' expenses; (3) the minor childrens' employment; (4)Mother's substantial savings since the time of the dissolution of marriage; and (5) the minor childrens' savings.

At the outset, we note that our review of a trial court's adjudication of a motion to modify a dissolution decree regarding child support is limited to determining whether the judgment is supported by substantial evidence, whether it is against the weight of the evidence, whether it erroneously declares the law or whether it erroneously applies the law.In re Marriage of Deane, 798 S.W.2d 732, 736(Mo.App.1990).We may only set aside a decree or judgment on the ground that it is against the weight of the evidence with caution and with a firm belief that the decree or judgment is wrong.Butler v. Butler, 698 S.W.2d 545, 548(Mo.App.1985).The real parties in interest are the children.Donnelly v. Donnelly, 648 S.W.2d 898, 900(Mo.App.1983).It is their well being which is our primary concern.Id.

It is axiomatic that the provisions regarding child support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms of the original decree unreasonable.Section 452.370.1, RSMo.Cum.Supp.1990;Beeler v. Beeler, 820 S.W.2d 657, 662(Mo.App.1991).In determining what constitutes substantial and continuing change of circumstances, the court is to consider all financial resources of both parties including the extent to which their expenses should be shared by a present spouse.Section 452.370.1, RSMo.Cum.Supp.1990;Beeler v. Beeler, 820 S.W.2d at 662.The burden is upon the party seeking modification to establish the changed circumstances.Donnelly v. Donnelly, 648 S.W.2d 898, 900(Mo.App.1983).However, if the current support deviates from the support prescribed by the guidelines and the criteria set forth in Rule 88.01 by twenty percent or more, a prima facie case of a substantial and continuing change in circumstances so substantial and continuing as to make the present terms unreasonable has been established.Section 452.370.1, RSMo.Cum.Supp.1990;Beeler v. Beeler, 820 S.W.2d at 662.Once this is established, the trial court must determine a new child support obligation in conformity with Rule 88.01.

Rule 88.01 directs the trial court to consider all relevant factors, including the following criteria: (1) the financial resources and needs of the child; (2) the financial needs and resources of the parents; (3) the standard of living the child would have enjoyed had the marriage survived; (4) the physical and emotional condition of the child; and (5) the educational needs of the child.Rule 88.01 specifies that there is a rebuttable presumption that the amount of child support calculated pursuant to Civil Procedure FormNo. 14 is the amount of child support to be awarded.The Rule further specifies that this presumption is rebutted if the trial court enters 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.

Thus, the effect of § 452.370.2, RSMo.Cum.Supp.1990, read in conjunction with Rule 88.01, is that a party who has proven changed circumstances, is entitled to a new award of child support calculated according to the criteria of Rule 88.01 and Form 14, unless the court determines by the substantive factors that govern such adjudications that the amount calculated is unjust or inappropriate.Section 452.370.2, RSMo.Cum.Supp.1990;Campbell v. Campbell, 811 S.W.2d 504, 506(Mo.App.1991).An adjudication of a child support award, whether by the calculus of Form 14 or by the adjudication of a lesser amount, is a substantive matter.Campbell v. Campbell, 811 S.W.2d at 506.An adjudication of an amount other than as calculated under Rule 88.01 is ineffective without "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."Id.That proviso is also mandatory.Id.

Rule 88.01, requires both parties to complete Form 14, which is a worksheet for calculating the "presumed child support amount."The completed forms are to be made part of the record.Here, no form or forms were included in the legal file.An appellant seeking relief from a child support award without including these completed forms is doing so at his or her peril.SeeBehnke v. Behnke, 829 S.W.2d 45, 46(Mo.App.1992).We have gratuitously completed Form 14 using the following information.

Mother's monthly gross income is $1,942.00.Father's monthly gross income is $7,600.Father, however, is paying $278.00 per month child support for another child who is not a subject of the case at bar.Therefore, Father's adjusted monthly gross income is $7,322.These incomes reveal that the parties have a combined monthly gross income of $9,264.00, seventy-nine percent of which is attributable to Father.Application of the guidelines to the parties' combined monthly adjusted gross income for three children reflects a child support obligation of $1,794.00.Since Father's proportionate share of the parties' combined income is...