Elliott v. Elliott

• Decision Date: 12 March 1996
• Docket Number: No. WD,WD
• Citation: 920 S.W.2d 570
• Parties: D'Nita ELLIOTT, Respondent, v. Timothy J. ELLIOTT, Appellant. 51248.
• Court: Missouri Court of Appeals

Page 570

920 S.W.2d 570

D'Nita ELLIOTT, Respondent, v. Timothy J. ELLIOTT, Appellant.

No. WD 51248.

Missouri Court of Appeals,

Western District.

March 12, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 30, 1996.

Frank E. Brown, Kansas City, for Appellant.

John Lawrence Williams, Kansas City, for Respondent.

Before ULRICH, P.J., and BRECKENRIDGE and SMITH, JJ.

SMITH, Judge.

Appellant appeals from a judgment modifying a dissolution decree increasing his child support obligation for the parties' minor child, Autumn. He asserts three points on appeal: (1) the trial court erred by including "extraordinary expenses" for private elementary school, dance lessons, and piano lessons in its Form 14 calculation, (2) the trial court erred in that it failed to consider the reduction in expenses incurred by respondent for Autumn resulting from the 4.5 year voluntary cohabitation between respondent and Charles Williams in its Rule 88.01 analysis, and (3) the trial court erred in incorrectly computing the Form 14 amount, failing to rebut the Form 14 amount, and failing to do a Rule 88.01 "analysis" in computing child support.

FACTS

The parties' marriage was dissolved on July 29, 1987. Respondent was awarded the care, custody and control of the parties' minor child, Autumn C. Elliott, born on November 20, 1985. Pursuant to the Court's Decree of Dissolution of Marriage, appellant was ordered to pay respondent the sum of $186 per month in child support. On March 10, 1994, respondent filed a Motion to Modify Decree of Dissolution requesting an increase in child support. In support of her request of increased child support, respondent alleged that there were continuing and substantial changed circumstances since the date of dissolution. She specifically alleged: a) that the financial circumstances of the parties would result in a change in child support from the existing amount by 20% or more; and, b) since the time of the original decree, the child's needs for education, social and sustenance had increased. The modification hearing was held on March 24, 1995, before the Honorable Judge Anthony P. Nugent, Jr. Judge Nugent entered his order on May 24, 1995, increasing child support payable to respondent to $523.34.

Respondent's gross income has increased to $26,526 per year from $12,000 at the time of dissolution. Respondent earns $23.00 per month net income from a rental house and in 1994 she received $600 from part ownership of Texas real estate. Appellant's gross income increased from $16,000 per year at dissolution to $24,900.64 per year at time of the hearing. Appellant's pay stubs indicate that his gross monthly income is $2,073.07. Appellant included $143 for the care and support of his mother in his income and expense statement which the court specifically rejected.

Since 1992 respondent has resided with Charles E. Williams. The trial court found that respondent derives no income from this 4.5 year cohabitational relationship, and that in fact, financially the relationship costs respondent $340.00 per month which she pays to Mr. Williams for rent. Respondent's Income and Expense Statement showed her total average monthly expenses at $1,364. This included $240 per month for Autumn's tuition at St. Regis, a private elementary school, and $26.00 per month for her various lessons. The transcript at trial indicates the cost of the dance lessons alone was $26.00. Autumn takes dance lessons two hours a week, in addition to piano lessons and Scouts.

Appellant has on occasion attended her dancing functions and her Scout activities.

Autumn was less than two years old at the time of dissolution and was almost ten years old at the time of the modification hearing. She has attended St. Regis since starting school. She had the ability to read and do simple math before entering kindergarten. When choosing a school for Autumn, respondent applied on her behalf at the Montessori school and the math/science magnet specifically. There were no openings due to the quotas in the Montessori school, so Autumn was placed on the list for the math/science magnet. Respondent and Autumn moved to the Hickman Mills School District during the summer before Autumn entered kindergarten.

A challenging curriculum was one of respondent's requirements in choosing a school for Autumn to attend. Through research, respondent found that St. Regis ranked significantly higher than the Kansas City and Hickman School districts on the Iowa Basic Skills Test.

Autumn also attends the extended care program at St. Regis. This allows respondent to drop her at school at 6:30 a.m. where she is fed breakfast before class and pick her up after work around 5:30 p.m. This is necessary since respondent drives to Lenexa every day where she works from 7:15 a.m. to 4:45 p.m.

At the modification hearing, the trial court had before it the parties' income and expense statements, in addition to their Form 14 calculations. The court entered its own Form 14 calculation which is the basis of this appeal. The cost of Autumn attending a private elementary school along with her dance lessons and piano lessons was included on Line 4e under extraordinary expense. The trial court heard the evidence presented and determined that appellant had the ability to pay child support in the increased amount of $523.34.

STANDARD OF REVIEW

An award of child support is within the sound discretion of the trial court. McMickle v. McMickle, 862 S.W.2d 477, 484 (Mo.App.1993). The trial court's ruling with regard to such issue will be affirmed unless it is unsupported by substantial evidence, unless it is against the weight of the evidence, or unless it misstates or misapplies the law. Id. at 480-81. Great deference is awarded the trial court in determining the witnesses' credibility due to their superior ability to view their demeanor while testifying. Id. Absent a manifest abuse of discretion, appellate courts will not substitute their judgment for the trial court's. Holmes v. Holmes, 878 S.W.2d 906, 909 (Mo.App.1994). The trial court's award of support will not be disturbed unless the evidence is "palpably insufficient" to support it. Id.

I.

In Point I appellant contends that the trial court abused its discretion in ordering him to contribute to the child's expenses for private school, dance lessons, and piano lessons in that: a. he did not have the financial ability to contribute to said expenses and that respondent had the ability to pay for all the expenses without any contribution from him; and, b. the expenses are not properly included in the Form 14 calculation of the trial court. Logically we will address appellant's second contention first in that if the expenses were improperly included in the Form 14 calculation, the issue of appellant's ability to pay a portion of them is rendered moot.

A. Inclusion of Extraordinary Expenses in Form 14 Calculation

Rule 88.01 and § 452.340 govern the award of child support in this state. Rule 88.01, when read with § 452.340, provides a two-step procedure for determining child support. Woolridge v. Woolridge, 915 S.W.2d 372, 378 (Mo.App.1996). In step one, the trial court is required to calculate the child support amount pursuant to Civil Procedure Form No. 14. Rule 88.01; Woolridge, 915 S.W.2d at 378; Hamilton v. Hamilton, 886 S.W.2d 711, 716 (Mo.App.1994). There is a rebuttable presumption that the amount of child support calculated pursuant to Form 14 is the amount of child support to be awarded. Rule 88.01. Thus, in step two, the trial court considers whether to rebut the In this case, the trial court rejected the Form 14's submitted by the parties and did its own Form 14 calculation. Based on its calculation, the trial court determined the presumed correct child support to be $523.24 per month. The trial court included in its Form 14 calculation $266 as "extraordinary expenses" for private elementary school, piano lessons, and dance lessons. The trial court awarded child support in the amount it calculated without "rebutting" it as being unjust or inappropriate.

                presumed correct Form 14 amount as being unjust or inappropriate after consideration of all relevant factors.  Rule 88.01;   Woolridge, 915 S.W.2d at 378.   The burden is on the party seeking to rebut the Form 14 amount to show that it is unjust or inappropriate.  Rule 88.01;  § 452.340.8; Wenger v. Wenger, 876 S.W.2d 735, 740 (Mo.App.1994)
                

Although Form 14 is a mandated "formula" to be used by the trial court in determining child support, the trial court determines which Form 14 items and their respective amounts are properly included in the calculation based on the Directions for Completion of Form 14 and the evidence presented. Woolridge, 915 S.W.2d at 379; Hamilton, 886 S.W.2d at 716. Form 14 permits the trial court to consider for inclusion in the calculation any "[e]xtraordinary expense (Agreed by parents or ordered by Court)." Civil Procedure Form No. 14, Line 4e. ¹ In defining extraordinary expense, the Directions for Completion of Form 14 provide in pertinent part:

Worksheet, line 4e

Enter other extraordinary expenses agreed to by the parties or ordered by the court. Other extraordinary expenses may include the cost of attending tutoring sessions; special or private elementary and secondary schools to meet the particular educational needs of the child; camps, lessons, travel or other activities intended to enhance the athletic, social or cultural development of the child(ren). (emphasis added).

There are numerous decisions of this court and the other appellate courts of this state rendered before the 1994 amendment to Form 14 that discuss the appropriateness of considering the extraordinary expenses, which appellant questions, when calculating child support. However, we need not cite those decisions for authority on that issue since Form 14 now specifically permits the trial court to consider extraordinary expenses for private elementary...