Cross v. Cross, WD 71386
| Decision Date | 21 September 2010 |
| Docket Number | WD 71439.,No. WD 71386,WD 71386 |
| Citation | 318 S.W.3d 187 |
| Parties | Anisa R. CROSS, Appellant-Respondent,v.Justin G. CROSS, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Leonard K. Breon and Carroll G. Leffler, Warrensburg, MO, for appellant-respondent.
Daniel Baker, Sedalia, MO, for respondent-appellant.
Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
Justin Cross (“Father”) appeals the judgment of the trial court that denied his motion to modify child support and granted Anisa Cross's (“Mother”) motion to modify child support. Mother cross-appeals the trial court's calculation of the modified child support obligation. We affirm in part and reverse in part.
Father and Mother were married in August of 1999, and the Circuit Court of Pettis County entered its Judgment Order and Decree of Dissolution dissolving the parties' marriage on March 27, 2007. Two children were born of the marriage, Brooklyn and Gage Cross, who remain unemancipated. As a part of the original divorce judgment, the trial court awarded joint legal custody of the children to the parties but gave sole physical custody to Mother, with Father being allowed specific visitation rights. Additionally, the trial court ordered Father to pay Mother $717 in child support on a monthly basis.
On February 11, 2009, Father filed a motion to modify both custody and child support, alleging that substantial and ongoing changes in circumstances required a reduction in the child support he was paying to Mother.1 Specifically, Father asserted in his motion that because he had to work so many hours to pay the child support order, this work interfered with his ability to meaningfully parent his children. In response to Father's motion to modify, Mother filed a counter-motion to increase Father's child support on the basis that Father's income had substantially increased since the original dissolution judgment had been entered, and also because the cost of the children's care had increased since the entry of that order.
Shortly after the original divorce judgment, Father took on a second full time job. He continued working both full time jobs until shortly before the filing of this action. On January 29, 2009, Father sent a letter to one of his employers giving two weeks' notice and resigning his position. In that letter he states, “I am currently taking my ex-wife back to court for full custody of my children and have been strongly advised to quit one of my full-time jobs to ensure the chance of victory for my case.” He further stated in this letter that he looks “forward to continuing to work with you as soon as my court case is over.” Less than two weeks after sending this letter, Father filed his Motion to Modify.
On July 9, 2009, a hearing was held on the motions. The trial court entered its Judgment of Modification of Support, which inter alia, increased Father's ordered child support to $1,034 a month. Further factual details regarding these proceedings will be outlined as relevant in the analysis section herein.
The appropriate standard of review for this matter is as follows:
The standard of review in a court tried case, including one pertaining to modification of child support, is set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The judgment of the trial court will be affirmed on appeal unless there is no substantial evidence to support it, or unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. A trial court is free to believe or disbelieve all, part or none of the testimony of any witness. We give deference to the trial court's determination of the credibility of the witnesses; and the evidence, with all of the inferences flowing therefrom, is viewed in the light most favorable to the judgment.
McCoy v. Scavuzzo, 250 S.W.3d 1, 3 (Mo.App. W.D.2008) (citations and quotations omitted).
In Point One, Father argues that the trial court erred in denying his motion to modify because the court should not have determined his income to be the amount he earned while working two full-time jobs.
When ruling on a motion for child support modification, there is a two step process under Rule 88.01. The trial court must:
(1) determine and find for the record the presumed correct child support amount by using Form 14; and (2) make findings on the record to rebut the presumed correct child support amount if the court, after consideration of all relevant factors, determines that amount is unjust and inappropriate. Under the first step, a trial court can either accept a Form 14 amount calculated by a party, or if the court rejects the parties' Form 14 amounts as incorrect, the court must prepare its own correct Form 14 calculation. Either way a trial court chooses to proceed, the use of Form 14 in calculating child support in a modification proceeding is mandatory, and the record should clearly show how the trial court arrived at its Form-14 amount.
Crow v. Crow, 300 S.W.3d 561, 564 (Mo.App. E.D.2009) (citations and quotations omitted).
Here, Father failed to offer a Form 14 into evidence, the trial court rejected Wife's proposed Form 14 Worksheet as incorrect based on the evidence presented at trial, and the Court completed its own. “ ‘In determining whether the trial court correctly calculated the [PCSA], we review the calculation to ensure that not only is it done accurately from a mathematical standpoint, but that the various items and their amounts were properly included in the calculation and supported by substantial evidence.’ ” Ricklefs v. Ricklefs, 39 S.W.3d 865, 870 (Mo.App. W.D.2001) (quoting Nelson v. Nelson, 25 S.W.3d 511, 521 (Mo.App. W.D.2000)).
Father argues that the trial court erred in generating its Form 14 Worksheet because the Court improperly imputed income to Father.2 The crux of Father's argument on appeal is that imputation of income “requires a finding of either unemployment or underemployment,” and because the Court did not (and could not) make such a finding, it erred when imputing income on Father. We disagree.
To support his argument that a specific and articulated finding of unemployment/underemployment is required to impute income as a matter of law, Father cites to Civil Procedure Form No. 14, DIRECTIONS, COMMENTS FOR USE AND EXAMPLES FOR COMPLETION OF FORM NO. 14 (“Directions”). In completing the Form 14 Worksheet, “ ‘the court is to be guided by the worksheet's directions for completion and comments for use, and the evidence in the case.’ ” Ricklefs, 39 S.W.3d at 870 (quoting Woolridge v. Woolridge, 915 S.W.2d 372, 379 (Mo.App. W.D.1996)). However, Father has failed to cite to and analyze the relevant portions of the Directions in making this argument on appeal. Specifically, Father focuses solely on the language that states “[i]f a parent is unemployed or determined to be underemployed, ‘gross income’ may be based on imputed income.” Directions, Line 1: Gross Income, DIRECTION. But nothing in this language states that a specific and articulated finding of unemployment or underemployment is a pre-requisite for income to be imputed to a parent, and Father cites no authority that supports such a holding.3
The relevant determination in deciding “whether to impute income to a parent in calculating the Form 14 PCSA, is whether, applying all relevant factors, including those factors found in Comment H that are relevant, there is evidence to support a finding that the parent is deliberately limiting his or her work to reduce income to avoid paying child support.” Sherman v. Sherman, 160 S.W.3d 381, 385 (Mo.App. W.D.2004). Comment H of the Directions is entitled “Imputed Income” and states the following:
Directions, Line 1: Gross Income, cmt. H (emphasis added).
Comment C of the Directions entitled “Overtime Compensation and Secondary Employment” states:
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