Carmack v. Carmack, WD
| Decision Date | 08 July 1997 |
| Docket Number | No. WD,WD |
| Citation | 947 S.W.2d 842 |
| Parties | Elva D. CARMACK, now Thorne, Respondent, v. Ross D. CARMACK, Appellant. 53044. |
| Court | Missouri Court of Appeals |
Karl L. Madden, Jr., Moberly, for appellant.
Cynthia A. Suter, Schirmer, Suter & Gaw, Moberly, for respondent.
Before LAURA DENVIR STITH, P.J., and BRECKENRIDGE and HANNA, JJ.
Mr. Carmack appeals the trial court's order granting Mrs. Carmack's motion to increase child support for their two children, Melissa and David. He argues the court should have found the amount of support determined under Form 14 to be unjust and inappropriate because of the lack of specific evidence of the children's expenses, and because Melissa refused to have contact with him and should therefore be found to have abandoned the parent-child relationship. Mr. Carmack also appeals the trial court's order holding him in contempt for failing to pay $1,000 of Mrs. Carmack's attorney's fees which he was ordered to pay in 1989.
We affirm the trial court's orders as to child support. First, to the extent that Mr. Carmack is simply arguing that Mrs. Carmack failed to specifically show that she had a need for each dollar of the amount of presumed child support set out in the child support chart based on the parties' adjusted gross income, it was up to him to offer evidence that this amount was unjust or inappropriate on the facts of this case. He failed to do so. Second, to the extent he is arguing that the $375 in extraordinary expenses for college which the trial court included in his Form 14 were not supported by the evidence, we disagree. We also reject Mr. Carmack's argument that the fact he and his daughter are estranged entitles him to leave her without care and support. Finally, because Mr. Carmack has neither purged the contempt by paying the ordered attorney's fees, nor been incarcerated to coerce payment, the contempt order is interlocutory and not appealable. Accordingly, we dismiss the appeal of that order.
The marriage of Appellant Ross Carmack and Respondent Elva Carmack was dissolved on October 23, 1978. Mrs. Carmack was awarded custody of the parties' two children, Melissa and David, then ages three and one, respectively. In 1989, the Carmacks' decree of dissolution was modified to increase Mr. Carmack's support obligation to $300 per child per month. Although David was then living with Mr. Carmack in Florida, Mr. Carmack did not request a formal transfer of custody of David, nor did he request child support for David. At Mr. Carmack's request the court did, however, order that the $300 support obligation for David be abated while David lived with his father. David continued to live with his father for the next six years, except for an eleven-month period when he lived with his mother.
In 1995, Mr. Carmack filed a motion to modify the decree in which he asked the court to order Mrs. Carmack to pay him retroactive child support for the time David had lived with him, to transfer custody of David to him, and to terminate his child support payments to Mrs. Carmack for David's support and instead order Mrs. Carmack to make support payments to him for David. Mr. Carmack did not ask the court to modify his child support obligation for Melissa.
Mrs. Carmack filed an answer and a counter-motion to modify, in which she asked the court to increase Mr. Carmack's child support obligation for both children and to leave custody of both children in her. She argued that an increase in the amount of support was justified by the lapse of time and the fact that both children would be in college in the fall of 1995. She also asked that the child support be paid either to her or directly to the children.
After a hearing on both motions, the judge first addressed Mr. Carmack's right to retroactive support for the period when David was living with him. He correctly noted that Section 452.370.6 precluded him from modifying child support prior to the date of service of Mr. Carmack's motion to modify and therefore rejected Mr. Carmack's request for support retroactive to July 1989, when David first began to live with Mr. Carmack. The trial judge did, however, allow Mr. Carmack such support for David retroactive to the time of the filing of the Motion to Modify in July 1995.
The judge also found that Mrs. Carmack's obligation to furnish support to Mr. Carmack for the care of David for the five months between the filing of the Motion in July 1995 and the trial in December 1995 was $1,500 and that this equalled Mr. Carmack's obligation to support Melissa during that same time period. Because Mr. Carmack was $5,333.72 in arrears in his support for Melissa, the judge gave him a $1,500 credit against that amount to satisfy Mrs. Carmack's child support obligation to him for the five-month period. The judge denied Mr. Carmack's request to transfer custody of David to him, based upon the fact that David was over eighteen years old and testified at trial that he did not want to live with his father.
The judge reviewed the parties' Form 14s to determine the amount of child support due in light of the above rulings. He rejected both parties' Form 14s and prepared his own Form 14. The judge's Form 14 indicated that Mr. Carmack should pay child support totalling $694.48 per month. The judge set forth how he arrived at the numbers he used on his Form 14. To derive Mr. Carmack's income, the judge used Mr. Carmack's 1994 tax return and increased the figure because of an expected increase in net income for 1995 and the fact that the court believed some of the claimed expense deductions were for personal use. The judge also explained why he was not making an allowance for health insurance, and how he arrived at the amount for college expenses. The judge ordered the support payments to be made directly to the children.
Finally, the court found Mr. Carmack in contempt for failing to pay attorney's fees plus interest that he was ordered to pay to his former wife in the 1989 modification order. The court ordered Mr. Carmack to pay the fees and interest, plus a $1000 fine if he did not pay before November 1, 1996. Mr. Carmack has not paid the fees nor has he been incarcerated for failure to do so.
The Court of Appeals must affirm a trial court's order modifying a decree of dissolution unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Peery v. Peery, 933 S.W.2d 912, 914 (Mo.App.1996). We will not disturb a trial court's award of child support unless the evidence is "palpably insufficient" to support it. Price v. Price, 921 S.W.2d 668, 673 (Mo.App.1996); Elliott v. Elliott, 920 S.W.2d 570, 574 (Mo.App.1996); Holmes v. Holmes, 878 S.W.2d 906, 909 (Mo.App.1994).
Mr. Carmack appeals the trial court's decision to modify the decree by increasing the amount of child support due, arguing that the Form 14 amount used by the judge was unjust and inappropriate because of the lack of evidence of specific living expenses of David or of Melissa. He also argues that he should not pay an increased amount for Melissa's support, or alternatively should pay nothing for Melissa's support, because she has abandoned the parent-child relationship. He also appeals the judgment of contempt.
In her brief, Mrs. Carmack contends that we should not reach either of Mr. Carmack's points regarding child support because both children are emancipated, in that since the decision below one of the children has dropped out of college and the other has married. There are docket entries for July 10, 1996, and December 4, 1996, indicating that the court ordered the circuit clerk to terminate child support for the children, and a docket entry for December 16, 1996, terminating the income withholding on Mr. Carmack. Even assuming that we may find based on these records that the children are now emancipated and Mr. Carmack has brought his child support obligation current, however, the appeal is not moot. Mr. Carmack is still contesting his obligation to pay increased support from the date ordered below until the date both children were emancipated. Thus, we address the merits of the child support issues.
Mr. Carmack first complains that the trial court erred in utilizing the Form 14 child support amount. To understand his argument first requires an understanding of how child support is determined. Rule 88.01 establishes a two-step procedure for the trial court to follow in determining child support. Woolridge v. Woolridge, 915 S.W.2d 372, 379 (Mo.App.1996). First, the trial court is to "determine and find for the record the presumed correct child support amount pursuant to a correct Form 14." Id. In preparing a correct Form 14, the parties are required to set out each of their monthly gross incomes, adjusted for certain factors not present here. A child support chart is then used to determine the amount of presumed child support due for parents with this adjusted gross income. Adjustments are then permitted for special costs for such items as child care, health insurance, uninsured extraordinary medical expenses, and other extraordinary expenses such as college costs. The resulting figure is then divided proportionately between each parent based on his or her proportionate amount of the parties' total adjusted gross income to arrive at a presumed child support amount. See Form 14.
Here, each party prepared a Form 14. After reviewing both Form 14s, the court below determined that neither was accurate. In such a case, Woolridge requires the trial court to reject the parties' Form 14s and...
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