Edwards v. Edwards

• Court: Missouri Court of Appeals
• Writing for the Court: Lisa White Hardwick, Judge
• Citation: Edwards v. Edwards, 475 S.W.3d 218 (Mo. App. 2015)
• Decision Date: 24 November 2015
• Docket Number: WD 78472
• Parties: Mark Randall Edwards, Respondent, v. Debbie L. Edwards, Appellant.

475 S.W.3d 218

Mark Randall Edwards, Respondent,

v.Debbie L. Edwards, Appellant.

WD 78472

Missouri Court of Appeals, Western District.

FILED: November 24, 2015

Gayllin R. Carver, Jefferson City, MO for respondent.

Carla G. Holste, Jefferson City, MO for appellant.

Before Division Two: Mark D. Pfeiffer, Presiding Judge, Lisa White Hardwick and James E. Welsh, Judges

Lisa White Hardwick, Judge

Debbie Edwards (Mother) appeals from the circuit court's judgment dissolving her marriage to Mark Edwards (Father). Mother challenges the child support and maintenance awards and the court's denial of her request for attorney's fees. For reasons explained herein, we reverse the child support award and remand for the circuit court to recalculate the award. The judgment is affirmed in all other respects.

FACTUAL AND PROCEDURAL HISTORY

Mother and Father were married in September 1994 and separated in December 2013, after Father filed a petition for dissolution of marriage. During their marriage, they had two sons: Cameron, who was 19 years old at the time of trial, and Conner, who was 14 years old.

In his dissolution petition, Father requested, among other things, joint legal and physical custody of the children, with Conner residing with Father and Mother having custody of him every other week from Thursday to Monday and, on weeks where Mother does not have weekend custody, Thursday nights. Father asked that the court award a reasonable amount of child support. Mother filed a counterpetition in which she also sought joint legal and physical custody. She requested, however, that Conner reside with her and that Father have custody every other week from Thursday to Monday and, on weeks where Father does not have weekend custody, Thursday nights.¹ Additionally, Mother asked for an award of child support, maintenance, and attorney's fees.

While the case was pending, the court entered a temporary order regarding custody of Conner, child support for both children, and maintenance in May 2014. The order provided that the parties were to exercise joint physical custody of Conner. Conner was to reside with Mother on Mondays and Tuesdays of each week and Father on Wednesdays and Thursdays of each week. The parties were to alternate weekends. The court ordered Father to pay Mother $184 in temporary child support each month. Lastly, the court ordered Father to pay Mother $500 in temporary maintenance.

Trial was held on the parties' petitions in October 2014. The evidence at trial was that Mother, who does not have a high school diploma, had worked various jobs during the marriage. Before she had children, Mother was employed full time at a hospital. After having children, she ran an in-home daycare. For the past ten years, Mother has been self-employed cleaning offices and private homes on a part-time basis. Mother's average monthly income gross income from her part-time cleaning business is $2000. Her monthly expenses, not including expenses related to Conner and Cameron, are $2388.

Mother lives in a rental house near Father's residence. Cameron lives with her while he is attending college. In addition to Cameron, Mother's adult daughter from a previous relationship, Cara, lives with her. Cara, who is 23 years old, is a full-time student and does not contribute to the rent or other living expenses, except for the monthly satellite television bill. Mother allows Cara access to Mother's bank account and allows her to use the account to pay for gas or other expenses she may have.

Father is employed full time by the Jefferson City Police Department. His gross monthly income is $5066. His monthly expenses, not including expenses related to the children, are $1948. Father pays for the cost of the children's health insurance, which is $145 per month. Additionally, Father pays for every expense of Conner's that he is made aware of, makes Cameron's car payments, pays for Cameron's car insurance and cell phone, and gives Cameron cash.

The evidence at trial indicated that the parties had not followed the court's temporary custody schedule regarding Conner. In fact, between May and October 2014, Conner had spent only two overnights at Mother's house. Conner did, however, spend most weekday afternoons after school with Mother. Conner was diagnosed with argumentative defiance disorder and depression and has a history of anger management issues. According to Father, Conner chose not to stay with Mother during her designated parenting time.

The court subsequently entered a judgment, which it later amended, dissolving the parties' marriage and dividing their property pursuant to their agreement. The court awarded the parties joint legal and physical custody of Cameron and Conner. The court rejected Mother's and Father's proposed parenting plans regarding Conner and entered its own parenting plan, which provided for Conner to reside with Mother every week from Wednesday at 3:00 p.m. until Friday at 3:00 p.m. and every other weekend. Conner is to reside with Father at all other times.

As for child support for Cameron and Conner, the court rejected the parties' proposed Form 14s and calculated child support using a dual Form 14 computation. The court rebutted the presumed correct child support amount of $172 per month and ordered Father to pay Mother $184 per month.

On the issue of maintenance, the court found that, pursuant to the parties' property agreement, Mother would receive her vehicle, $70,000 of Father's 457 account, and $1000 per month of Father's pension when Father retires. The court further found that Mother would be able to support herself through appropriate employment. The court noted that Mother allows her adult daughter to live with her and that her daughter does not contribute toward rent or most of the utilities. The court concluded that, "Clearly, [Mother] is able to financially support herself if she is also able to help support her adult child." Despite finding that Mother is able to support herself, the court found that Mother's current self-employment does not offer the stability and benefits that regular employment would. Because Mother would no longer be covered under Father's health insurance, the court awarded Mother $350 per month in temporary, non-modifiable maintenance for 19 months to allow her time to find "appropriate employment."

Lastly, the court denied Mother's request for attorney's fees, finding that neither party's conduct during the marriage or the pendency of the case increased the other's attorney's fees and that the parties have the financial resources to pay their own fees. Mother appeals.

STANDARD OF REVIEW

Appellate review of a dissolution judgment is under the standard of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Jenkins v. Jenkins, 368 S.W.3d 363, 366 (Mo.App. 2012). We will affirm the circuit court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 366–67. The party challenging the dissolution judgment has the burden of demonstrating error. Shaw v. Shaw, 413 S.W.3d 332, 334 (Mo.App. 2013). We view the evidence and any reasonable inferences therefrom in the light most favorable to the court's decision and disregard all contrary evidence and inferences. Id. We recognize that the circuit court was " ‘free to believe or disbelieve all, part, or none of the testimony of any witness.’ " Id. (citation omitted).

ANALYSIS

Child Support

In Point I, Mother contends the circuit court erred in determining child support because it failed to properly adhere to the guidelines set forth in Rule 88.01. Specifically, Mother argues that the court incorrectly calculated the child support award by using the procedure for a split-custody arrangement. We agree with Mother that the court's child support calculation is erroneous and requires reversal.

To determine child support, Section 452.340, RSMo,² and Rule 88.01 mandate the use of the Form 14 guidelines. Woolridge v. Woolridge, 915 S.W.2d 372, 378 (Mo.App. 1996). The circuit court must first calculate the presumed correct child support amount pursuant to Form 14, either by accepting one of the parties' proposed calculations, or by rejecting the parties proposed Form 14s and preparing its own. Roberts v. Roberts, 391 S.W.3d 921, 922 (Mo.App. 2013). The court then must consider whether to rebut the presumed correct child support amount as unjust or inappropriate after considering all relevant circumstances. Id. at 922–23.

In its judgment, the court stated that it was rejecting the parties' proposed Form 14s and preparing its own Form 14s "based upon a split custody in that Cameron resides predominantly with [Mother] and Conner resides predominantly with [Father], thus the presumed correct child support amount payable to [Mother] is $172 per month." The court's Form 14s indicate that the court arrived at $172 by subtracting $250, the presumed correct child support amount that Mother would owe for Conner, from $422, the presumed correct child support amount that Father would owe for Cameron. The court then rebutted the $172, finding that, based on "the situation of both parties and the minor children at the present time," it would be reasonable for Father to pay Mother $184 per month.

This method of calculating dual Form 14s for each parent and subtracting the smaller amount from the larger amount is used in split-custody arrangements and is discussed in Comment D to Line 12 in the Directions, Comments for Use and Examples for Completion of Form No. 14, which provides:

Split custody refers to the situation in which one or more, but not all, of the children primarily resides with each of the parents. In those instances, a separate Form No. 14 is completed for the number of children primarily residing in the custody of each parent, using the adjusted monthly gross income (line 3) for both parents but disregarding the children primarily residing in the other parent's custody.

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