Buckner v. Jordan, 79747

Decision Date30 September 1997
Docket NumberNo. 79747,79747
PartiesAngela Jean (Jordan) BUCKNER, Respondent, v. Russell Dewayne JORDAN, Appellant.
CourtMissouri Supreme Court

John P. Lichtenegger, Jackson, for Appellant.

Angela Jean (Jordan) Buckner, Advance, for Respondent.

HOLSTEIN, Judge.

The only issues presented in this appeal relate to the correctness of the trial court's calculation of child support pursuant to Rule 88.01 and Form 14. Following opinion by the Missouri Court of Appeals, Southern District, this Court granted transfer. Mo. Const. art. V, sec. 10; Rule 83.03. The judgment of the trial court is reversed and the cause remanded.

I.

The marriage of Russell Dewayne Jordan (father) and Angela Jean (Jordan) Buckner (mother) was dissolved in 1989. The decree granted custody of the parties' three minor children to the mother and provided for child support. On April 17, 1996, the court entered a judgment and decree of modification granting primary custody of the eldest son to the father and modifying the child support obligation.

The father's primary contention is that the trial court miscalculated his support obligation by using an erroneous measure of his gross income. The father is a truck driver. He is paid 14.5 to 15.5 cents per mile. A "per diem" of $32 per day is calculated and excluded from taxable income. The full per diem is calculated each day the father works, even for a partial day's work. The per diem is allowed by the employer without requiring the father to submit any claim or proof of actual expenses. During the first ten weeks of 1996, the employer calculated a per diem of $1,520, an average of 4.75 days per week on the road.

While on the road, the father pays for travel expenses such as meals, telephone calls, showers, and motel bills, to the extent motel costs exceed $35 per night. The father testified that he ordinarily spends more than $32 a day for travel expenses while on the road. No evidence was presented to contradict this testimony. Although the father testified as to his average weekly mileage, he presented no evidence as to the number of partial or full days spent on the road during any pay period or the number of overnight trips required during any pay period.

To calculate the father's presumptive child support obligation using Civil Procedure Form 14, the trial court determined the father's gross income by multiplying the father's average monthly mileage by the per mile rate. The trial court did not reduce the amount of the father's gross income by the amount of per diem.

After rejecting both parties' Form 14 submissions because of inaccuracies, the trial court completed its own Form 14 worksheet. The court calculated the presumed amount of child support to be $829.50 per month for the period of February 1, 1995, to February 1, 1996, and $544.29 per month thereafter. However, without explanation for its deviation from these presumed child support amounts, the court ordered a reduced amount of $700 per month for the period from February 1, 1995, to February 1, 1996, and $525 per month thereafter. From this order the father appealed.

II.

The father argues that the trial court erred in determining child support by including his per diem payment as part of gross income in Civil Procedure Form 14 calculations. A determination of child support will be affirmed unless it is unsupported by substantial evidence, is against the weight of the evidence, or misstates or misapplies the law. Farr v. Cloninger, 937 S.W.2d 760, 762 (Mo.App.1997).

Rule 88.01 establishes a presumptive amount for child support as calculated pursuant to Form 14. Deviation from the presumptive child support amount is permissible if the trial court makes "a written finding or a specific finding on the record that the amount so calculated, after consideration of all relevant factors, is unjust and inappropriate." Rule 88.01; see also sec. 452.340.8, RSMo. Supp.1996; Woolridge v. Woolridge, 915 S.W.2d 372, 377-83 (Mo.App.1996).

The determination of each parent's gross income is the starting point for Form 14 calculations. The term "gross income" is not defined. However, the Directions for Completion of Form 14 provide guidance as to what should be included in gross income:

Gross income includes income from any source, except as excluded below, and includes but is not limited to income from salaries, wages, overtime compensation, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, retirement benefits, workers' compensation benefits, unemployment compensation benefits, disability insurance benefits, and spousal support actually received from a person not a party to the order.

For income from rent, royalties, self-employment, proprietorship or a business or joint ownership or a partnership or closely held corporation, "gross income" is defined as gross receipts minus ordinary and necessary expenses required to produce income. The court may exclude from ordinary and necessary expenses amounts for depreciation, investment tax credits, and other noncash reductions of gross receipts. Income, expenses and retained earnings should be reviewed to determine gross income. This amount may differ from a determination of business income for tax purposes.

Income earned from a second job of a sporadic or...

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15 cases
  • Pearson v. Koster
    • United States
    • Missouri Supreme Court
    • July 3, 2012
    ...at 787. This Court rarely has reversed a trial judgment as against the weight of the evidence under the Murphy v. Carron standard. In Buckner v. Jordan, for instance, this Court reversed a judgment in favor of a plaintiff as against the weight of the evidence. 952 S.W.2d 710, 712 (Mo. banc ......
  • Pearson v. Koster
    • United States
    • Missouri Supreme Court
    • May 25, 2012
    ...at 787. This Court rarely has reversed a trial judgment as against the weight of the evidence under the Murphy v. Carron standard. In Buckner v. Jordan, for instance, this Court reversed a judgment in favor of a plaintiff as against the weight of the evidence. 952 S.W.2d 710, 712 (Mo. banc ......
  • In re the Marriage of Mary P. Petersen
    • United States
    • Missouri Court of Appeals
    • July 25, 2000
    ...accompanying form, but the Directions for Completion of Form 14 provide guidance as what should be included as gross income. Buckner v. Jordan, 952 S.W.2d 710, 711 (Mo.banc 1997). A "relevant factor" which may justify deviation from the presumptive child support amount is "the financial res......
  • Marriage of Kohring, In re
    • United States
    • Missouri Supreme Court
    • August 24, 1999
    ...unless it is unsupported by substantial evidence, is against the weight of the evidence, or misstates or misapplies the law. Buckner v. Jordan, 952 S.W.2d 710, 711 (Mo. banc 1997). At the hearing on the motion to modify, father testified that he operated a computer consulting business as an......
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