Gal v. Gal

• Decision Date: 21 January 1997
• Docket Number: No. 68170,68170
• Citation: Gal v. Gal, 937 S.W.2d 391 (Mo. App. 1997)
• Parties: Deborah C. GAL, Petitioner/Respondent, v. Richard J. GAL, Respondent/Appellant.
• Court: Missouri Court of Appeals

Page 391

937 S.W.2d 391

Deborah C. GAL, Petitioner/Respondent, v.Richard J. GAL, Respondent/Appellant.

No. 68170.

Missouri Court of Appeals,

Eastern District,

Division Four.

Jan. 21, 1997.

R. Andrew Beeney, R. Andrew Beeney & Associates, Clayton, for Petitioner/Respondent.

Michael C. Todt, St. Louis, for Respondent/Appellant.

SIMON, Judge.

Richard J. Gal(father) appeals the modification of the child support provision of a dissolution decree entered by the Circuit Court of St. Louis County.

Deborah C. Gal(mother) filed a motion to dismiss the appeal because father is in default on the order of child support which is being appealed and therefore is not entitled to affirmative relief.The motion was ordered taken with the case.We deny the motion.

On appeal, father contends the trial court erred by: (1) awarding mother increased child support because she failed to show a change in circumstances so extraordinary and burdensome as to make the terms of the decree unreasonable; (2) including mother's "school-related" day care cost as an extraordinary expense in its Form 14 calculations; (3) including father's present wife's income in its Form 14 calculations for determining child support; (4) failing to include mother's full income for the purpose of child support; (5) making a child support award too high for father to be able to meet the reasonable needs of the children and his own financial obligations; (6) adding loans received by father to his gross income for the purpose of child support calculations; (7) assessing $1,500.00 of mother's attorney's fees against father when mother was in a better financial position to pay her own attorney's fees; (8) failing to impute income to mother for purposes of child support calculations when mother was able bodied and unemployed and (9) its incorrect addition of the amounts of income which it imputed to father for child support purposes.We reverse and remand.

Our review of the trial court's adjudication of a motion to modify a dissolution decree regarding child support is limited to determining whether it is supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law.Buckman v. Buckman, 857 S.W.2d 313, 316[1-3](Mo.App. E.D.1993).Where there is a conflict in testimony, we defer to the trial court's determination of the credibility of the witnesses.Carter v. Carter, 901 S.W.2d 906, 909(Mo.App. E.D.1995).We view the evidence in a manner favorable to the decree and disregard contrary evidence.Wynn v. Wynn, 738 S.W.2d 915, 918(Mo.App.1987).We defer to the trial court even if the evidence could support a different conclusion.Id.

The parties' marriage was dissolved on May 15, 1992.Per the decree, father and mother shared custody of their three children with mother having primary physical custody.Father was ordered to pay child support.On May 13, 1994, mother sought to modify the decree on the issues of child support and custody.Prior to the hearing for modification, the parties resolved all issues of custody and therefore the only issues before the trial court were financial.The hearing was held before Commissioner, who made Findings and Recommendations, and father's motion for rehearing was denied.

Trial court adopted and confirmed the findings of Commissioner as the judgment of the court.The court recognized that the previously awarded child support, $100.00 per month per child, was unreasonable in that the support calculated pursuant to Rule 88.01 exceeds the current support guidelines by more than twenty percent and that father is earning more money.The decree reads in pertinent part:

III.SUPPORT OF THE MINOR CHILDREN

The court finds as follows:

4.There are no reasonable work related child care costs.

5.There are extraordinary expenses which the court must take into account in determining child support herein.[Mother] is enrolled full-time in nursing school.As a result of her efforts to gain further education so she will be self-supporting, she incurs day care costs.These are $76.00 per week during the school year and $179.00 per week during the summer.The total annual day care costs would be ... $440.92 per month ...

7.[Mother's] Gross income at the time of the original decree was approximately $1,250.00 per month.

8.Currently [mother] is not employed, but earns $1,500.00 gross per month as income from an inheritance which she received.Even though [mother] is able bodied and capable of employment, the court will not impute income to [mother] at the present time because the court finds that [mother] is making a sincere attempt to improve her earning capacity in the future so that she may be better able to support herself and her children.

9.The Court finds that [father's] gross income at the time of the original decree was $1,000.00 per month.

10.Currently, [father] is employed by 4006 Inc., a corporation of which he owns all outstanding stock.[Father] has asserted that his income is $200.00 gross per week or $866.67 gross per month.[Mother] asserts that [father] has manipulated his income in such a way so that [his] income appears to be less than it actually is.The court finds that [father] has underestimated his gross income, and accordingly the court calculates [father's] income as follows:

a. [Father] has reported income of $200.00 per week or $866.67 per month.

b.[F]or thirteen months, 4006, Inc. paid Sandy Schilling Gal the sum of $3,856.26.It should be noted that Sandy Schilling Gal is now the wife of [father], and that during this period of time, Sandy Gal was employed fulltime as a school teacher.In addition, while Sandy Gal was being paid the sum of $7.00 per hour, [father] was only paying himself the sum of $5.00 per hour.The court finds that the sum of $296.64 per month ($3,856.26 divided by 13 months) should be added to [father's] gross income on a monthly basis.

c.[During a period of sixteen months]4006, Inc., loaned $2800.00 to [father].In addition, in August, 1994, [father] received $1,000.00 cash from 4006, Inc.Therefore, the court finds that the sum of $237.50 ($3,800.00 divided by 16 months) should be added to [father's] gross income on a monthly basis.It should also be noted that [father] does not list these loans from 4006, Inc. on his property statement ...

d. [Mother] proved substantial credit card debt paid by 4006, Inc., and [father] did not produce any documents to substantiate his claim that these expenses were business related.However, the court notes in reviewing the exhibits of [mother], that there is no evidence that any automotive expenses were paid by check by 4006, Inc. and therefore finds that some of the credit card debt was business related.[Father] indicated that 4006, Inc. paid for all automotive expenses for [father] which he indicates are $50.00 per month for gas and oil, $2.08 for taxes and license and $64.92 which was car insurance, for a total of $117.00 per month.

e. Adding up those additions to income as set forth above, the court finds [father's] reasonable monthly gross income to be $1,617.81.

THE COURT THEREFORE CONCLUDES AND RECOMMENDS AS FOLLOWS:

1.[Father] shall pay to [mother] the sum of $233.14 per month per child as and for the support of the minor children commencing February 1, 1995.Child support amounts were determined in accordance with authorized support guidelines.A copy of Form 14 is attached hereto.

Subsequently, father filed a motion for reconsideration or in the alternative, for a new trial on March 24, 1995.The trial court denied his motion on April 6, 1995 and father filed notice of appeal on April 11, 1995.

Mother filed a motion to dismiss father's appeal which will be taken up during the course of the opinion.

The majority of father's points relied on fail to comport with the "wherein and why" mandate of Rule 84.04(d).However, we shall review them ex gratia.We take father's points out of order.

In his third point on appeal, father contends the trial court erred by including father's present wife's income in its Form 14 calculations for determining child support.

Father is presently married to Sandy Schilling Gal.Prior to their marriage and while they were cohabitating and sharing living expenses, Sandy worked for fatherat 4006, Inc.During a thirteen month period 4006, Inc paid Sandy the sum of $3,856.26 or $296.64 per month.The trial court found that father had "underestimated his gross income" and made a finding that "the sum of $296.64 per month ... should be added to [father's] gross income on a monthly basis."

On this point, § 452.370 RSMo 1994(hereinafter all references are to RSMo 1994 unless otherwise indicated) is informative and provides in pertinent part:

1....In a proceeding for modification of any child support or maintenance award, the court, in determining whether or not a substantial change in circumstances has occurred, shall consider all financial resources of both parties, including the extent to which the reasonable expenses of either party are, or should be, shared by a spouse or the person with whom he or she cohabits, and the earning capacity of a party who is not employed.If the application of the guidelines and criteria set forth in supreme courtrule 88.01 to the financial circumstances of the parties would result in a change of child support from the existing amount by twenty percent or more, then a prima facie showing has been made of a change of circumstances so substantial and continuing as to make the present terms unreasonable.(emphasis ours)

2.When the party seeking modification has met the burden of proof set forth in subsection 1 of this section, then the child support shall be determined in conformity with criteria set forth in supreme courtrule 88.01.

As clearly stated in the statute, the extent to which household expenses are shared with a cohabitant is relevant in determining whether a change in circumstances has...