Francisco v. Hendrick
| Decision Date | 01 August 2006 |
| Docket Number | No. 27424.,27424. |
| Citation | 197 S.W.3d 628 |
| Parties | Mallory Anne (Hendrick) FRANCISCO, Respondent-Appellant, v. Jeffrey Allen HENDRICK, Movant-Respondent. |
| Court | Missouri Court of Appeals |
Abe R. Paul, The Paul Law Firm, Pineville, MO, for appellant.
Aaron W. Farber, Neosho, MO, for respondent.
Mallory Anne (Hendrick) Francisco ("Mother") appeals the judgment of the trial court modifying the child support obligation of Jeffrey Allen Hendrick ("Father") following a bench trial on Father's motion to modify. We reverse and remand.
The marriage between the parties was dissolved on April 23, 2001, at which time the parties were awarded joint legal custody of the couple's four children with "primary physical custody" to Mother.1 Father subsequently filed for modification, which the trial court granted on September 25, 2003, awarding Father "primary physical custody" of the parties' oldest son. Mother retained "primary physical custody" of the three younger children, and the trial court set Father's child support obligation at $1,500.00 per month.
On September 17, 2004, Father again filed for modification of custody and child support, alleging "a substantial and continuing change in conditions and circumstances." Father alleged that he was terminated from his former employment, that the income derived from his current employment is a decrease of twenty percent or more, and that the parties' oldest child, who was then eighteen years of age, self-supporting, and over whom "parental control has been relinquished," is emancipated. Father also alleged that Mother "is currently self-employed and/or capable of full-time employment[.]"
Following a bench trial on October 13, 2005, at which both parties stipulated that their oldest child was emancipated, the trial court "adopted" Father's Form 14, found that Mother's income was $892.00 per month, and entered its judgment on November 21, 2005, thereby reducing Father's child support obligation to $1,093.00 per month. Mother appeals the trial court's modification of child support, presenting three points relied on.
In her first point, Mother contends that the trial court erred in "finding that Mother should have $892.00 of monthly income imputed to her in that she has not worked and has been a stay at home mother since the parties divorced." Mother asserts that "there was no credible or substantial evidence to support" the trial court's finding.
Point two alleges trial court error in "adopting" the calculation of Father's monthly income as provided on the Form 14 submitted by Father. Further, Mother states that the trial court failed to make the requisite specific findings regarding the trial court's "deviation from the mandatory requirements of Rule 88.01.[2]"
Point three challenges the application of an adjustment for overnight visits by the trial court in its calculation of child support, as Mother contends that such an adjustment is not permissible under Rule 88.01 unless the income of the parent receiving child support exceeds, in Mother's case, $1,400 per month.3 Mother contends that there was no evidence before the court that her monthly income exceeded that amount, even if the trial court had been correct in finding that her monthly income amounted to $892.00.
Modification of an order of child support requires a showing of a change in circumstances so substantial and continuing as to make the terms of the existing support order unreasonable. Marra v. Marra, 857 S.W.2d 520, 522 (Mo.App. 1993). If Father's current support payment deviates by more than twenty percent from his child support requirement mandated by the guidelines, a prima facie case of a substantial and continuing change in circumstances has been established. Section 452.370.1.4 A change in circumstances "sufficient to support modification must be proven by detailed evidence and must also show that the prior decree is unreasonable." Nelson v. Nelson, 14 S.W.3d 645, 650 (Mo.App.2000). "When the party seeking modification has met this burden of proof, then Rule 88.01 and Form 14 are to be followed again to reset the award." Marra, 857 S.W.2d at 522.
Upon review of an award of child support, we must determine whether the trial court's determination of the presumed child support amount is supported by the evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Malawey v. Malawey, 137 S.W.3d 518, 527 (Mo.App.2004). On appeal, a trial court's award of child support will not be disturbed "`unless the evidence is "palpably insufficient" to support it.'" Hall v. Hall, 53 S.W.3d 214, 220-21 (Mo.App.2001) (quoting Elliott v. Elliott, 920 S.W.2d 570, 574 (Mo.App. 1996)).
Father's Form 14 lists $892.00 on line 1 as Mother's monthly gross income. The trial court's judgment includes a finding that Mother's monthly income is $892.00. Mother argues that "not only is there not substantial evidence to support imputing $892.00 per month income to her, there is little or no evidence to support such a finding represented on [Father's] Exhibit 3 (Form 14)."
Father testified that the amount of income attributed to Mother and listed on his Form 14 was a result of imputing minimum-wage income to Mother. Father stated that, to his knowledge, Mother was not employed full-time and had not completed college and received her degree. Father indicated that he believed Mother was able to earn at least minimum wage.
Mother testified that she baby-sits out of her home and has no other income. There was testimony regarding endeavors to breed and sell Chihuahua puppies, however Mother indicated that she no longer did so. When asked on direct examination whether she had any physical ailments, Mother stated she has eczema. In answering whether she had the ability to work, Mother stated, "I don't want to work with my son being small."
During cross examination by her counsel, Mother testified that her son, by her subsequent marriage, was two years old and that full-time employment would require her to place him into full-time daycare, which she did not wish to do. Counsel then began questioning Mother related to Father's income calculations. During this line of questioning counsel asked: "And we've shown that as — as strictly his gross income for 2004 and we — " however, the testimony is suspended at this point in the transcript. We next find a "TRANSCRIBER'S NOTE" which reads: 5 The transcript continues with the following testimony:
Q. [By counsel for Mother] — babysitting part-time and selling a dog for now.
A. [By Mother] Right.
Q. Would that be correct?
A. Yes.
Q. Based on those calculations and giving him a credit for health insurance, that calculation comes out to be $1,600 a month; is that correct? $1,652 [sic]?
A. Yes.
Thereafter, Mother offered two Form 14s for the trial court's consideration. Each of these reflects that she receives an income of $134.00 per month. However, nothing in the partial transcript before this court supports the use of this amount or how it was calculated.
It appears that immediately preceding the gap in the transcript of the proceeding Mother was giving testimony about Father's income. As the transcript of the trial resumes following the omitted testimony it appears that Mother is concluding her testimony about her income. We are unable to determine whether this gap in the record omits very little of the proceeding and Mother simply failed to offer any evidence as to her income and...
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