Dawson v. Dawson

• Decision Date: 15 May 2012
• Docket Number: No. WD 73385.,WD 73385.
• Citation: 366 S.W.3d 107
• Parties: Tracie L. DAWSON, Appellant, v. James R. DAWSON, Respondent.
• Court: Missouri Court of Appeals

366 S.W.3d 107

Tracie L. DAWSON, Appellant,

v.James R. DAWSON, Respondent.

No. WD 73385.

Missouri Court of Appeals, Western District.

May 15, 2012.

Tracie L. Dawson, Appellant pro se.

R. Gregory Harrison, Liberty, MO, for respondent.

Before Division Four: LISA WHITE HARDWICK, Chief Judge, Presiding, CYNTHIA L. MARTIN, Judge and JOEL P. FAHNESTOCK, Special Judge.

CYNTHIA L. MARTIN, Judge.

Tracie Dawson (“Mother”) appeals from the trial court's amended judgment order of modification retroactively modifying James Dawson's (“Father”) child support obligation and ordering Mother to pay Father $19,305.00 in overpaid child support. Mother claims the trial court erred in calculating the overpayment. We exercise our power pursuant to Rule 84.14 ¹ to modify the trial court's judgment to reflect an offset against Father's child support overpayment by Father's child support arrearage. We affirm the judgment in part, and reverse and modify the judgment in part.

Factual and Procedural History²

In 2000, a judgment decree of dissolution of marriage (“Decree”) was entered pursuant to which Father was ordered to pay Mother monthly child support in the amount of $1,688.00 for the support of their two minor children.

On January 27, 2005, a judgment order of modification (“2005 Modification”) was entered modifying Father's child support obligation to $820.00 per month effective February 1, 2005. The 2005 Modification reflected the terms of the parties' settlement, which included an agreement that Father had a child support arrearage of $25,016.00. The 2005 Modification also reflected the parties' agreement about how the arrearage would be paid. Father was to pay $9,000.00 by Discover check card on February 1, 2005; $4,500.00 on or before June 30, 2005; $5,758.00 at the rate of $120.00 per month for 48 months beginning July 31, 2005; with the balance of $5,758.00 “[to] be held in abeyance and ... forgiven unless Father fails to pay child support timely [.]” The 2005 Modification specified objective criteria to be applied to determine whether Father failed to pay child support timely for purposes of triggering his obligation to pay the amount held in abeyance.

In early 2006, Father sustained an injury to his knee requiring surgery. Following surgery, Father was no longer able to perform duties associated with his work such as lifting, squatting, and stooping. Father was unemployed for a period of time. Father continued to make partial child support payments, but did not consistently pay $820.00 a month.

On February 26, 2007, Father filed a motion to modify child support.³ In response to Father's motion to modify, Mother filed an answer to Father's motion, a motion for modification of child support, and a motion for contempt addressing Father's child support arrearage.

On July 9, 2007, Father obtained employment as the director of a community outreach program for homeless intervention. In that position, Father makes approximately $1,600.00 per month.

A bench trial on Father and Mother's motions was held on June 1, 2010 and August 3, 2010. At trial, Father introduced evidence in support of a significant reduction in his child support obligation, and asked that any reduction be ordered retroactive to July 2007. Father introduced a child support enforcement printout of his child support obligation and payment history current to June 1, 2010 (Exhibit 7), and acknowledged on direct examination that as of June 1, 2010, he was in arrears for child support in the amount of $11,877.33, an amount which included the $5,758.00 sum held in abeyance pursuant to the 2005 Modification. Father introduced evidence to demonstrate that he had complied with the arrearage payment provisions set forth in the 2005 Modification, and argued that per the terms of the 2005 Modification, he was entitled to a determination that the abeyance amount was not owed.

On cross-examination of Father, Mother's counsel also introduced a printout reflecting Father's child support obligation and payment history (Exhibit 10) ⁴ which was identical to Father's Exhibit 7 except that it was only current through March 10, 2010. Father acknowledged that the exhibit reflected that in January 2005, his child support arrearage was credited by $12,641.46, and that the remaining balance of his arrearage in the stipulated amount of $25,016.00 was included in the 2005 Modification.

Mother testified on August 3, 2010, about Father's child support payment history from January 2005 through early 2007. Referring to Exhibit 10, Mother testified that in January 2005, she agreed to permit Father a $12,641.46 credit against his child support arrearage. Mother testified that Father's remaining arrearage of $25,016.00 was the amount the parties agreed Father would be orderedto pay in the 2005 Modification. Mother testified that Father did make the $9,000.00 and the $4,500.00 arrearage payments required by the 2005 Modification prior to June 30, 2005, and that Father made a payment of $820.00 in February 2005, and a payment of $9,210.00 in April 2005. Father had previously testified by reference to Exhibit 10 that he also made an $820.00 payment in June 2005.

On November 3, 2010, the trial court entered its Judgment Order of Modification (“Judgment”) finding that “there has been a change in circumstances so substantial and continuing in nature as to make the terms of the original [Decree] and the subsequent [2005 Modification] thereto unreasonable.” The trial court found that Father had suffered physical injuries that reduced his ability to earn gainful employment such that he is incapable of earning the amount of income he previously earned. The trial court rejected the Form 14s presented by both parties, rejected the trial court's own Form 14 as unjust and inappropriate, and retroactively determined that “beginning July 1, 2007, [Father's] child support obligation to [Mother] should be reduced to $325.00 per month[.]”

With regard to child support arrearages, the trial court found that between January 2005 and June 2005, Father was required to pay $25,016.00 in total arrearages; that between January 2005 and June 2005, Father's total obligation including arrearages and ongoing child support was $29,936.00, and that during the same period of time Father actually paid Mother $37,069.46 in child support. The trial court then found that “any and all arrearages owed by [Father] to [Mother] resulting from the [2005 Modification] and any arrearages accumulated thereafter, is [sic] deemed satisfied and paid in full.”

The trial court denied Mother's motion for contempt as it related to Father's nonpayment of child support and child support arrearage, but granted Mother's motion for modification in part by granting Mother a judgment against Father in the amount of $2,643.56 for unpaid medical and tutoring expenses.

Finally, the trial court found that the retroactive modification of Father's child support obligation had resulted in Father's “overpayment” of child support in the amount of $19,305.00.⁵ The trial court entered judgment in favor of Father and against Mother in the amount of the overpayment.

Mother filed a “Motion for Reconsideration, New Trial and Amendment of Judgment,” in which Mother claimed that the trial court improperly credited Father with payment of the amount of $12,641.46. Mother also complained that Father had not paid the full amount of the $25,016.00 arrearage set forth in the 2005 Modification, and owed the abeyance amount of $5,758.00. Finally, Mother complained that the trial court had not reduced the $19,305.00 child support overpayment by the amount Father owed in child support as of the time of trial.

Father also filed a motion to amend the trial court's Judgment, though Father's motion is not included in the record on appeal. After a hearing, ⁶ Mother's post-trial motion was denied and Father's post-trial motion was granted. As a result, on January 13, 2011, the trial court entered its Amended Judgment Order of Modification (“Amended Judgment”) ⁷ which did not change the amount of the monetary judgments owed by and between Mother and Father, but which added: the case number of the original Decree; instruction that the Cass County Circuit Court records should be changed to reflect the retroactive reduction of Father's child support obligation; clarification that any arrearages resulting from or addressed in either the Decree or the 2005 Modification, “and any arrearages accumulated thereafter as a result of either case, are hereby deemed satisfied and paid in full;” and instruction that the Cass County child support records should be changed to reflect that Father owes no child support arrearage as of the date of the Amended Judgment.

Mother appeals pro se.

Standard of Review

“ ‘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).’ ” Cross v. Cross, 318 S.W.3d 187, 189 (Mo.App. W.D.2010) (citation omitted). We will affirm the trial court's judgment “ ‘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.’ ” Id. at 189–90 (citation omitted). “ ‘A trial court is free to believe or disbelieve all, part or none of the testimony of any witness.’ ” Id. at 190. (citation omitted). We defer to the trial court's determination of the credibility of the witnesses. Id. “ ‘[T]he evidence, with all of the inferences flowing therefrom, is viewed in the light most favorable to the judgment.’ ” Id. (citation omitted).

Analysis

Mother does not challenge the trial court's decision to reduce Father's child support obligation to $325.00 per month retroactive to July 2007. Mother does not contest that, as a result, Father's child support obligation from July 2007 through September 2010 was reduced by the amount of $19,305.00.

Mo...