Ferry v. Ferry

• Decision Date: 21 December 2010
• Docket Number: No. ED 94789.,ED 94789.
• Citation: 327 S.W.3d 599
• Parties: William Patrick FERRY, Appellant,v.Mary Jane FERRY, Respondent.
• Court: Missouri Court of Appeals

327 S.W.3d 599

William Patrick FERRY, Appellant,
v.
Mary Jane FERRY, Respondent.

No. ED 94789.

Missouri Court of Appeals, Eastern District, Division Three.

Dec. 21, 2010.

[327 S.W.3d 600]

Joseph T. Bante, St. Louis, MO, for appellant.Craig G. Kallen, Town & Country, MO, for respondent.CLIFFORD H. AHRENS, Judge.

William Ferry (Husband) appeals the circuit court's judgment on his motion to modify child support and maintenance awarded in his divorce from Mary Jane Ferry (Wife). We reverse and remand.

The parties married in 2000, separated in 2005, and divorced in 2007. At the time of dissolution, Wife earned $3437 per month and Husband earned $6866 per month. The trial court found that both parties were underemployed and imputed their monthly income as $4583 and $12,500 respectively. The court awarded Wife primary physical custody of their two minor children, child support of $1680 per month pursuant to Form 14, and maintenance of $1250 per month.

In 2009, Husband filed a motion to modify the foregoing terms based on significant changes in the parties' respective financial circumstances. The evidence presented at trial, held December 22, 2009, established that Wife earned approximately $53,000 in 2009, and Husband had earned $116,432 as of December 15, 2009. The trial court calculated Wife's monthly income as $4416 ( i.e., $53,000 divided by 12). The court found that Husband's income was $117,000 for the first eleven months of the year, and it extrapolated a twelfth month to calculate his full year's salary as $127,632, or $10,636 per month. Using these figures, the court denied Husband's motion regarding child support because the Form 14 recalculation did not vary from the original award by 20%. The court granted Husband's motion regarding maintenance and reduced it to $1050 per month. Husband appeals, asserting, in sum, that the trial court erred by (1) miscalculating child support using income and child care figures not supported by the evidence and (2) considering improper factors in its determination of maintenance.

Our review of a judgment modifying a decree of dissolution is limited to a determination of whether it is supported by substantial evidence, whether it is against the weight of the evidence or

[327 S.W.3d 601]

whether it erroneously declares or applies the law. Corrier v. Corrier, 112 S.W.3d 443, 446 (Mo.App.2003).

In his first point, Husband contends that the trial court erred in denying his motion to modify child support because the court's Form 14 calculation was based on figures not supported by the evidence. Specifically, Husband challenges the figures representing child care expenses and Husband's own income. Section 452.370.1 RSMo states that child support may be modified upon a showing of changed circumstances so substantial and continuing as to make the original terms unreasonable. It further provides that a prima facie showing of changed circumstances is achieved when the recalculation of child support using Form 14 varies from the original award by 20% or more.

The record...