Emig ex rel. Emig v. Curtis

Citation117 S.W.3d 174
Decision Date14 October 2003
Docket NumberNo. WD 61848.,WD 61848.
PartiesIn re the Matter of Cody Christian EMIG, by and through his next friend, Gary Bryan EMIG, and Gary Bryan Emig, Individually, Appellants, v. Amy Nicole CURTIS, Respondent.
CourtCourt of Appeal of Missouri (US)

Brent F. Teichman, Lexington, for appellant.

Amy N. Curtis, Blue Springs, pro se.

Before PAUL M. SPINDEN, P.J., THOMAS H. NEWTON and RONALD R. HOLLIGER, JJ.

THOMAS H. NEWTON, Judge.

Motions to modify child custody and child support were filed by Ms. Amy Nicole Curtis and Mr. Gary Bryan Emig. The motion court ordered that the parties have joint legal and physical custody of their son, Cody Christian Emig, with Mr. Emig having custody of Cody for a greater amount of time. Also, Mr. Emig was ordered to pay Ms. Curtis child support. We reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

Cody Christian Emig was born to Mr. Emig and Ms. Curtis on April 30, 1994. On May 15, 2000, the trial court entered a Judgment of Paternity, Custody, Visitation and Support, declaring Mr. Emig to be the natural and biological father of Cody. Ms. Curtis and Mr. Emig were awarded joint legal and physical custody of Cody. No child support was awarded to either party because the trial court found that the presumed child support amount of $77 a month to be paid by Mr. Emig to Ms. Curtis was unjust and inappropriate because the parties spent an equal amount of time with Cody.

On August 27, 2001, Ms. Curtis filed with the motion court a Motion to Modify requesting primary physical custody of Cody and child support from Mr. Emig based on Form 141 and pursuant to Rule 88.01. Mr. Emig filed a Crossmotion to Modify and sought primary physical custody of Cody but did not seek child support. At the hearing, Ms. Curtis' Form 14 was admitted into evidence without objection.

The motion court awarded greater custodial time with Cody to Mr. Emig, with the parties retaining joint legal and physical custody. Based on the parenting plan adopted by the motion court, Mr. Emig has custody of Cody about fifty nine percent of the time and Ms. Curtis has custody of Cody about forty one percent of the time. The motion court also adopted Ms. Curtis' Form 142 and ordered Mr. Emig to pay Ms. Curtis $346 a month in child support.

Mr. Emig appeals the award of child support to Ms. Curtis, and that is the only point on appeal. He contends that the motion court abused its discretion by failing to properly take into account the relevant factors of section 452.3403 to rebut the presumed child support amount (PCSA). He claims that the motion court erred in ordering him, as the primary custodial parent, to pay child support to Ms. Curtis based on Ms. Curtis' Form 14, which anticipated that she would be designated the primary physical custodian of Cody.

II. COMPLIANCE WITH RULE 84.04

As a preliminary matter, we must address Mr. Emig's motion to strike Ms. Curtis' brief for failure to comply with Rule 84.04. Although Ms. Curtis is appearing pro se in this appeal, she is still held to the same standard as a licensed attorney and, therefore, must comply with the requirements of Rule 84.04. Kittle v. Kittle, 31 S.W.3d 127, 129 (Mo.App. S.D. 2000); Speight v. Speight, 933 S.W.2d 879, 881 (Mo.App. W.D.1996). Substantial compliance with Rule 84.04 is mandatory. Gray v. White, 26 S.W.3d 806, 815 (Mo. App. E.D.1999).

This court has discretion to dismiss an appeal for failure to comply with Rule 84.04, but we also have discretion in the interest of justice to review an appeal on the merits even when the brief is not entirely compliant with the rule. Id. at 816. Because rules of civil procedure are to be liberally construed, we hesitate to dismiss a case on purely technical grounds. Id. at 815. "We will not exercise our discretion to dismiss an appeal for technical deficiency under Rule 84.04 unless the deficiency impedes disposition on the merits." Id. at 816.

Motions to strike appellate briefs for failure to comply with Rule 84.04 are generally brought by the respondent for alleged deficiencies in the appellant's brief. In this case, however, Mr. Emig, the appellant, is bringing this motion to strike Ms. Curtis' brief. Respondents are not required to file briefs, although it is preferred in the interests of fair adjudication of both parties' claims. In re Estate of Klaas, 8 S.W.3d 906, 908 (Mo.App. S.D. 2000). We could, therefore, determine this appeal on the merits even if we granted Mr. Emig's motion to strike Ms. Curtis' brief. But because Ms. Curtis has filed a brief, she must comply with the rules. While there are some technical deficiencies in her brief, however, Ms. Curtis' brief does substantially comply with Rule 84.04 and, taken with Mr. Emig's brief, her arguments are clear responses to Mr. Emig's arguments. See Geiersbach v. Blue Cross/Blue Shield of Kansas City, 58 S.W.3d 636, 638-39 (Mo.App. W.D.2001) (not dismissing the appeal for violating Rule 84.04 because although appellant's brief provided little assistance in determining the issues on appeal, the single issue was ascertainable based on respondent's brief and the legal file). Since there is no substantial violation of Rule 84.04, Mr. Emig's motion to strike Ms. Curtis' brief is denied.

III. STANDARD OF REVIEW

Our review of this point requires us to apply the Murphy v. Carron standard, 536 S.W.2d 30, 32 (Mo. banc 1976), and an abuse of discretion standard. In reviewing an award of child support, we review the award, in light of the trial court's application of the two-step procedure described in the opinion, to determine whether it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Conrad v. Conrad, 76 S.W.3d 305, 308 (Mo.App. W.D.2002). "After reviewing and determining that the trial court's application of the [two-step] procedure passes the Murphy v. Carron standard, we then review for an abuse of discretion with respect to the trial court's rebuttal review of its PCSA calculation." Id.

IV. LEGAL ANALYSIS

The motion court abused its discretion when it failed to rebut the presumed child support amount calculated on Ms. Curtis' Form 14.

When the motion court determines child support in any proceeding, Rule 88.01 and section 452.340 require the court to follow a two-step procedure. Conrad, 76 S.W.3d at 308. First, the motion court is required to determine and find for the record the PCSA based on Form 14. Id. The second step requires the motion court to consider all relevant factors and determine whether the PCSA should be rebutted as unjust or inappropriate. Id. When calculating the PCSA, the motion court can either accept a Form 14 offered by one of the parties or it may reject both Form 14 calculations and do its own. Ricklefs v. Ricklefs, 39 S.W.3d 865, 870 (Mo.App. W.D.2001). If any item is incorrect on a submitted Form 14, the motion court must reject the form and do its own calculations. Id. Section 452.340.1 lists relevant factors to be considered in the second step, providing in pertinent part:

1. In a proceeding for dissolution of marriage, legal separation or child support, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable or necessary for the support of the child, including an award retroactive to the date of filing the petition, without regard to marital misconduct, after considering all relevant factors including:

(1) The financial needs and resources of the child;

(2) The financial resources and needs of the parents;

(3) The standard of living the child would have enjoyed had the marriage not been dissolved;

The physical and emotional condition of the child, and the child's educational needs;

(5) The child's physical and legal custody arrangements, including the amount of time the child spends with each parent and the reasonable expenses associated with the custody or visitation arrangements; and

(6) The reasonable work-related child care expenses of each parent.

(emphasis added).

The use of Form 14 is mandatory to determine the presumed child support award. Tuning v. Tuning, 841 S.W.2d 264, 266-67 (Mo.App. S.D.1992). While the directions for use of the Form 14 say both parties shall complete a Form 14, if the parties agree upon the amounts in the form, only one form need be submitted. Id. at 267. At the hearing, Mr. Emig stated that he agreed with Ms. Curtis' Form 14, that his income was listed correctly, and that if the numbers were "flip-flopped," he would receive $206 a month in support from Ms. Curtis. "One party's failure to file a Form 14 ... acknowledges agreement with the Form 14 filed by the other spouse." Allen v. Allen, 961 S.W.2d 891, 894 (Mo.App. W.D.1998). Mr. Emig is not challenging the child support award as determined on Ms. Curtis' Form 14.4 Mr. Emig asserts that the motion court failed to rebut that amount. Because he is disputing only the failure to deviate from the PCSA, not the PCSA itself, he has not waived an appeal on this issue. See id. ("Because Husband disputes the trial court's deviation from the presumed child support amount, he did not waive the issue on appeal by failing to file a Form 14.")

The parties in this case have joint legal and physical custody of Cody. Child support may be awarded even when the parents have been given that custodial arrangement. Stewart v. Stewart, 988 S.W.2d 622, 625 (Mo.App. W.D.1999). "Joint physical custody does not require an equal amount of time with each parent." Id. at 624. But this case is somewhat unusual in that while Cody's primary residence5 is with Mr. Emig—he is with his father fifty-nine percent of the time or approximately 215 overnight periods—Mr. Emig was also ordered to pay child support to Ms. Curtis.6 Mr. Emig agrees with the Form 14 but disagrees that he should be obligated to pay child support to Ms. Curtis at all since he has custody of Cody the majority of the time. "A...

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