Dearriba v. Dearriba, ED 80734.

• Decision Date: 18 March 2003
• Docket Number: No. ED 80734.,ED 80734.
• Citation: 100 S.W.3d 134
• Parties: Lucinda D. DeARRIBA, Petitioner/Respondent, v. Mark S. DeARRIBA, Respondent/Appellant.
• Court: Missouri Court of Appeals

100 S.W.3d 134

Lucinda D. DeARRIBA, Petitioner/Respondent, v. Mark S. DeARRIBA, Respondent/Appellant.

No. ED 80734.

Missouri Court of Appeals, Eastern District, Division One.

March 18, 2003.

Prudence Fink Johnson, Union, MO, for appellant.

Daniel E. Leslie, Union, MO, for respondent.

MARY K. HOFF, Judge.

Mark S. DeArriba (Father) appeals from that portion of the trial court's Judgment for Modification which ordered Father to pay Lucinda D. DeArriba (Mother) the sum of $1,409 per month for support for the parties' minor child (Daughter). We affirm in part and reverse and remand in part.

The parties' marriage was dissolved on June 22, 1993. Two children were born of the marriage, Daughter, and a son who is now emancipated. As pertinent to this appeal, the Decree of Dissolution: Property Settlement and Joint Custody Plan (Decree), awarded the parties joint legal custody and Mother primary physical custody of the parties' minor children, ordered Father to pay Mother $618 per month for support for the children, and provided that Father would pay one-half of the actual cost of Daughter's post-secondary education — subject to the limitation that Father's maximum share would be one-half of the cost for attendance at the University of Missouri at Columbia.

On January 26, 1998, the Decree was modified. This first Judgment for Modification (the 1998 Modification) found that the circumstances of the parties had changed in a substantial and continuing manner in that the parties' son physically resided with Father, not Mother. Accordingly, the 1998 Modification reduced Father's support obligation to $175 per month for support for Daughter only.

On February 13, 2001, Mother filed a motion to modify, alleging in relevant part, that since the date of the Decree, the circumstances of the parties had changed in a substantial manner making the enforcement of the Decree with respect to child support unreasonable and necessitating modification, in that (1) the application of the child support guidelines would result in a change of child support from the existing amount by more than twenty percent (20%); (2) Mother's cost of living had increased disproportionately to her income, making it difficult for her to meet the support demands of Daughter; (3) Daughter's expenses had increased substantially since the Decree; (4) Father's income had increased substantially; and (5) Mother's income had decreased significantly.

The cause was called for trial on June 13, 2001. Mother appeared, represented by counsel, and Father appeared pro se. At the hearing, Mother testified as follows. Daughter graduated from high school on May 24, 2001. Daughter planned to attend Southern Illinois University at Edwardsville (SIU) in Fall 2001, and had been accepted there. In January 2000, Mother's salary as a human resources director was $40,000 annually; however, Mother had experienced a significant change in her income during the previous year because her employer had gone out of business. Mother was working in real estate at the time of the hearing, but had not earned "a lot" of income in that field.

Mother further testified that Daughter's average monthly expenses, which included health insurance, dental insurance, car insurance, car repairs and maintenance, gas, school expenses, personal items, haircuts, cell phone, internet, cable, food, and dance, totaled $1,696.85. According to Mother, the cost for Daughter to attend college at SIU would be $1,270.12 monthly. A summary of Daughter's monthly expenses prepared by Mother and consistent with her testimony was received into evidence.

When Mother's counsel asked if Mother had checked into the yearly cost for attendance at the University of Missouri at Columbia, Mother stated that she did not know exactly what the cost was. When counsel asked if the figure $11,000 refreshed her memory, Mother replied, "It sounds reasonable. Yes." Counsel later stated, "All right. And that on a monthly basis, comes up to about $917 a month. And half of that would be $459 per month." Mother responded, "Right."

Father also testified at the hearing. According to Father, he was a self-employed carpenter who remodeled homes. Depending on the job, he would charge somewhere between $25.00 to $30.00 an hour for his labor. He further testified that during the summer, he would work approximately 40 to 50 hours weekly. In the winter, he would often work 20 hours or less; in the spring and fall, he would work between 20 to 40 hours weekly. After hearing this testimony, the court calculated Father's gross income by multiplying $27.50 by 1600 hours. The court then stated, "...And that's $44,000. Do you think you made that much last year? Gross?" Father replied, "Gross. Yes, sir." The court then said, "Okay. 44,000 divided by 12, that's $3,666.66." Although Father indicated that he had his tax returns with him at the hearing, the returns were never offered into evidence.

At the close of the hearing, the court read aloud figures from a Form 14 prepared by Mother, which attributed gross income to Mother in the amount of $1,000 monthly, and gross income to Father at $4,333 monthly. The form indicated that health insurance for Daughter cost $120 monthly, and that Daughter's other extraordinary costs, detailed as college expenses, totaled $917 monthly. After the court read this proposed form to Father and told him that, according to the form, Father would owe $1,407 a month for child support, Father replied, "It's not going to be anywhere close to that." Although marked as "Petitioner's Exhibit 3," this form was never formally offered as an exhibit during the hearing, but was received by the court on September 21, 2001.

In its September 25, 2001 Judgment for Modification (2001 Modification), the trial court found that since the 1998 Modification, the parties' circumstances had changed in that Daughter was currently attending college and Mother had been terminated from her prior place of employment. As relevant, the trial court ordered Father to pay Mother $1409 per month for child support for Daughter, commencing June 1, 2001.

On October 22, 2001, Father, through counsel, filed a Motion for New Trial, to Reopen the Evidence and Correct the Judgment. With his motion, Father submitted a proposed Form 14 and his tax returns for the years 1998 through 2000. Father's proposed Form 14 attributed $1,000 monthly gross income to Mother, and $1,134 monthly gross income to Father. It did not factor in any health insurance or other extraordinary costs, and indicated that Father's presumed child support amount would be $211 monthly. This motion was argued on November 14, 2001, and taken under advisement. The trial court failed to rule on the motion within 90 days; thus, it was deemed denied. This appeal follows.

Our review of the judgment of the trial court modifying a decree of dissolution regarding child support is limited to determining whether the judgment is supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Gal v. Gal, 937 S.W.2d 391, 392 (Mo.App. E.D.1997). We view the evidence favorably to the decree and disregard contrary evidence. Id.

Father raises ten points on appeal. For the purposes of brevity and clarity, we will consider them out of order, grouping them as necessary for our discussion. In his third, fourth and fifth points on appeal, Father claims the trial court erred in modifying the child support award because (1) Mother failed in her pleading to aver a change in circumstances since the 1998 Modification, rather than since the original Decree; (2) the interval since the 1998 Modification was too brief; (3) Daughter's proposed entrance to college was not an extraordinary circumstance as it was contemplated in the Decree; and (4) the additional costs for college expenses were not sought by Mother in her pleading and Father was unfairly surprised by this issue at the hearing. These contentions are without merit.

Supreme Court Rule 55.33 provides that if issues not raised by the pleading are tried by express or implied consent of the parties, they are treated in all respects as if they had been raised in the pleadings. During the hearing, Father failed to object to evidence of a change in circumstances since the 1998 Modification, or to evidence of Daughter's college expenses being received by the court on the basis that Mother had not specifically requested support for such expenses in her pleading, thus these issues were tried by implied consent. Consequently, Father's complaint regarding their admission is not preserved for appellate review. Leahy v. Leahy, 858 S.W.2d 221, 225-26 (Mo. banc 1993); see also Buckman v. Buckman, 857 S.W.2d 313, 319 (Mo.App. E.D.1993) (technical rules as to pleadings should not prevent decision on merits where welfare of minor child is at stake).

Furthermore, among other things, Mother's pleading alleged that the circumstances of the parties had changed in a substantial manner necessitating modification of the child support award in that Daughter's expenses had increased substantially, Father's income had increased substantially, and Mother's income had decreased significantly. Increased expenses of a child, caused by additional educational and accompanying expenses, combined with a substantial increase in a parent's income, constitute sufficient changes for a trial court to modify an existing child support...