Conrad v. Conrad

• Decision Date: 04 June 2002
• Docket Number: No. WD 59250.,WD 59250.
• Parties: Clifford Lee CONRAD, Respondent, v. Cathie Lane CONRAD, Appellant.
• Court: Missouri Court of Appeals

76 S.W.3d 305

Clifford Lee CONRAD, Respondent, v. Cathie Lane CONRAD, Appellant.

No. WD 59250.

Missouri Court of Appeals, Western District.

June 4, 2002.

John W. Dennis, Jr., Independence, for Respondent.

R. Gregory Gore, Independence, for Appellant.

Before ELLIS, P.J., and EDWIN H. SMITH and HOWARD, JJ.

EDWIN H. SMITH, Judge.

Cathie Lane Conrad (Wife) appeals the judgment of the Circuit Court of Jackson County dissolving her marriage to the respondent, Clifford Lee Conrad (Husband), with respect to its award of child support to Wife and its division of marital property.

Wife raises three points on appeal. In Point I, she claims that the trial court erred in entering its child support award pursuant to its rebuttal downward of its Form 14 presumed child support amount (PCSA) of $198 as being unjust and inappropriate, based upon non-court-ordered (NCO) overnight visitation being exercised by Husband, because the record was insufficient to support rebuttal on that basis in that there was no evidence that such visitation resulted in his incurring any significant additional expenses. In Point II, she claims that the trial court erred in including in its division of marital property the $42,900 she received in proceeds in settlement of her sexual harassment lawsuit because there was no evidence from which the court could find, as required, that the proceeds still existed for distribution at the time of dissolution. In Point III, she claims that even if it was proper for the trial court to include in its distribution of marital property the sexual harassment settlement proceeds, the court still erred in including proceeds in the amount of $42,900 because in valuing the proceeds she received, the court was required, but failed, to consider the tax consequences of her receipt of the proceeds.

We affirm in part, and reverse and remand in part.

Facts

The parties were married on January 10, 1975. Four children were born of the marriage. Two of the children, Michael Justin Conrad, born February 22, 1982, and Kelly Beth Conrad, born February 23, 1984, were unemancipated at the time of trial.

Husband filed a petition for dissolution of marriage in the Circuit Court of Jackson County on June 8, 1999. Wife filed her answer to Husband's petition and cross-petition on November 2, 1999. The case was heard on August 21, 2000, by Family Law Commissioner Sherrill Rosen, who entered her findings and recommendations and proposed judgment of dissolution on August 22, 2000. Wife filed a motion for rehearing with the circuit court, which the court denied on September 25, 2000, in its "order and judgment" adopting the findings and recommendations and proposed judgment of the Commissioner dissolving the marriage of the parties.

In its judgment of dissolution, the trial court, accepting the parenting plan submitted by Husband,¹ awarded Wife the primary physical custody of Michael and Husband the primary physical custody of Kelly, subject to visitation by the other parent every other weekend, one weeknight a week, on specified holidays and for two consecutive weeks every summer. In addition, the trial court awarded Wife $100 per month in child support and divided the parties' marital property so as to effect an equalization of property between them. To equalize the property division, the court ordered Husband to make a cash payment to Wife of $6,680.

In determining the amount of child support to award, the trial court rejected the Form 14s submitted by both Husband and Wife, and made its own Form 14 calculations. The trial court found the presumed child support amount (PCSA) to be $198 per month. The trial court then rebutted its Form 14 PCSA as being unjust and inappropriate, awarding Wife $100 per month in child support, and awarding Husband the tax exemption for Michael. The trial court's rebuttal was based on Husband's exercising non-court-ordered visitation with Michael.

With respect to the parties' marital property, the trial court heard testimony concerning $65,000 which Wife had received in settlement of a sexual harassment lawsuit that she had filed against her employer. After attorney's fees and expenses were deducted from the settlement proceeds, the trial court found that Wife "netted" or received $42,900 in proceeds. At trial, Wife testified that she had received the proceeds shortly before the parties separated in March of 1999, and that she used the money to set up a new home after leaving the marital residence. Specifically, she said that she used the money to pay rent, a pet deposit, deposits on utilities, an $8,000 credit card debt, laundry and gas expenses, and debt on an automobile.

This appeal follows.

I.

In Point I, Wife claims that the trial court erred in entering its child support award pursuant to its rebuttal downward of its Form 14 PCSA of $198 as being unjust and inappropriate, based upon the NCO overnight visitation by Michael with Husband in order to maintain Michael's residency in the Truman School District because the record was insufficient to support rebuttal on that basis. Specifically, Wife claims that to rebut on that basis, Husband was required, but failed, to present evidence that his NCO visitation with Michael resulted in his incurring significant additional expenses. Her claim is well taken.

In determining an award of child support in any proceeding, § 452.340.8² and Rule 88.01³ require the trial court to follow the two-step procedure set forth in Woolridge v. Woolridge, 915 S.W.2d 372, 379 (Mo.App.1996), which was approved by the Missouri Supreme Court in Neal v. Neal, 941 S.W.2d 501, 504 (Mo. banc 1997). Ricklefs v. Ricklefs, 39 S.W.3d 865, 869-70 (Mo.App.2001). In the first step, the trial court must determine and find for the record the PCSA in accordance with Form 14. Ricklefs, 39 S.W.3d at 870. This required determination and finding can be done by the trial court's either accepting for the record a Form 14 calculation of one of the parties, or in the event the court "rejects" their Form 14 calculations as being incorrect, by doing its own Form 14 calculation. Woolridge, 915 S.W.2d at 381-82. The trial court can do its own Form 14 calculation by either completing a Form 14 worksheet and making it a part of the record or by articulating on the record how it calculated its Form 14 amount. Id. at 382. In the second step, the court, after considering all relevant factors, must determine whether to rebut the PCSA as being unjust or inappropriate. Ricklefs, 39 S.W.3d at 870. Our review then of an award of child support is essentially one of the trial court's application of the two-step Woolridge procedure, applying the standard enunciated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Hence, in reviewing an award of child support, we review the award, in light of the trial court's application of the Woolridge procedure, to determine whether it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Ricklefs, 39 S.W.3d at 869; Woolridge, 915 S.W.2d at 375. After reviewing and determining that the trial court's application of the Woolridge procedure passes the Murphy v. Carron standard, we then review for an abuse of discretion with respect to the trial court's rebuttal review of its PCSA calculation. Nelson v. Nelson, 25 S.W.3d 511, 520 (Mo App.2000). In this point, the issue is a Murphy v. Carron question, whether the trial court's rebuttal downward of the PCSA, on the basis of non-court-ordered overnight visitation, is supported by the evidence.

Pursuant to Husband's parenting plan, which was adopted by the trial court in its award of child custody, the parties were awarded joint legal and physical custody of Kelly and Michael, with Husband being designated the primary physical custodian of Kelly and Wife being designated the primary physical custodian of Michael. Although Wife was designated as Michael's primary physical custodian, the court designated Husband's residence as Michael's for educational purposes. In that regard, the trial court found in its judgment:

While [Husband's] parenting plan suggests specific visitation, the evidence is that the children will move back and forth between the parties[`] homes in accordance with their own schedules, however, the parties have been able to work this out for the benefit of their children.

There is also evidence that Michael attends school at Truman High School, which is in the district where [Husband] resides. The testimony is that in order to maintain residency for school purposes, the child stays overnight with [Husband] four nights a week during the school year. The Court finds it to be in Michael's best interests that [Husband's] residence be designated as the child's for educational purposes.

In light of this finding, one would have expected that in awarding visitation to the parties, the trial court would have included the four nights of overnight visitation that the court found that Husband was actually exercising with Michael. However, in ordering specific visitation to each parent, the trial court for some unexplained reason did not include this visitation.

As required in a split custody case like ours, see Civil Procedure Form No. 14, Comments for Use (C), both parties submitted two Form 14s, one with Wife as the custodian of Michael and one with Husband as the custodian of Kelly. The trial court rejected the Form 14s submitted by the parties and did its own calculations, reflecting a PCSA to Wife from Husband of $442 and a PCSA to Husband from Wife of $244. Subtracting the lesser amount owed to Husband from the greater amount owed to Wife resulted in a PCSA to Wife of $198. The court then rebutted this amount downward, awarding Wife monthly child support of $100 and awarding Husband the tax exemption for Michael. In rebutting its PCSA as being unjust and inappropriate, the trial court was required to make a record as to the...