Gordon v. Gordon

• Decision Date: 21 May 1996
• Docket Number: No. WD,WD
• Citation: Gordon v. Gordon, 924 S.W.2d 529 (Mo. App. 1996)
• Parties: John R. GORDON, Appellant, v. Michale A. GORDON, Respondent. 51972.
• Court: Missouri Court of Appeals

Page 529

924 S.W.2d 529

John R. GORDON, Appellant, v. Michale A. GORDON, Respondent.

No. WD 51972.

Missouri Court of Appeals Western District.

May 21, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 2, 1996.

Thomas E. Hankins, Gladstone, for appellant.

Gary M. Steinman, Schulz, Bender, Maher, Lee, Sexton & Hill, P.C., Gladstone, for respondent.

Before LAURA DENVIR STITH, P.J., and ULRICH and SMART, JJ.

LAURA DENVIR STITH, Presiding Judge.

This appeal arises out of the trial court's denial of Petitioner-Appellant John R. Gordon's Motion to Modify the child support payments he must make to Respondent Michale A. Gordon for the care of their daughter Sarah. He asserted modification was justified by substantial and continuing changes in circumstances arising out of Mrs. Gordon's increased income and out of his direct payment of all of Sarah's college room, board, tuition, fees and expenses. The court below denied the motion to modify without opinion.

We reverse and remand. Mr. Gordon's payment of Sarah's college expenses constituted, in this case, a change in circumstances so substantial and continuing as to make the terms of the prior child support award unreasonable. The motion to modify, therefore, should have been granted under Section 452.370 RSMo 1994. ¹

I. FACTUAL AND PROCEDURAL BACKGROUND

The Gordons' marriage was dissolved in March 1993. In conjunction with the dissolution, the parties entered into a separation agreement whereby Mr. Gordon agreed that when the parties' three children reached college age he would pay their reasonable expenses for college tuition, room and board, and books, not to exceed the amount charged at The University of Missouri at Columbia at the time of the child's entrance into college. ² The original decree gave custody of all three children--Sarah, Luke, and Philip--to Mrs. Gordon and provided that Mr. Gordon would pay his former wife $650 per month in child support for the children.

In 1994, the decree was modified to give custody of Luke and Philip to Mr. Gordon. Custody of Sarah remained with Mrs. Gordon. New Form 14's were figured based on this new split custody arrangement and on Mr. Gordon's increased income, and the parties stipulated that the net result was that Mr. Gordon would pay to Mrs. Gordon a total of $775 per month in child support. ³

Sarah continued to make her home with her mother in Gladstone, Missouri until August 1995, although she spent almost half of her time in the summer of 1995 visiting at her father's home. She then moved into a dormitory in Kirksville, Missouri, and began attending college in Kirksville. As of the time of trial in October 1995, Sarah was still living in the dormitory. Accordingly, Sarah was no longer living with her mother on a day-to-day basis and Mrs. Gordon no longer was incurring day-to-day living and household expenses for Sarah, at least during the school week. Sarah did return to the Kansas City area many weekends during the semester, however, spending about equal time with each parent. A letter written by Sarah and admitted into evidence states that Sarah loves and has spent substantial time with both parents but considers her home to be with her mother and that she intends to make her home with her mother during the summer months while attending college.

In accordance with the parties' separation agreement, Mr. Gordon has paid for all of Sarah's college expenses (totaling $4,148) as they were incurred in the summer and fall of 1995 and up to the time of trial. In July, 1995, Mr. Gordon moved to modify his $775 child support obligation on the bases that he was providing all of Sarah's support, that Mrs. Gordon was no longer supporting Sarah on a day-to-day basis, that Sarah thus was in effect in his custody, that Mrs. Gordon's income had increased more than 20 percent, that this evidence constituted a prima facie case of changed circumstances and that his direct payment of Sarah's college expenses constituted such a substantial and continuing change of circumstances as to make unreasonable his continued payment of $775 per month in child support for Sarah to Mrs. Gordon.

Mrs. Gordon opposed the proposed modification. She denied her income had increased 20 percent, ⁴ and further argued that, because Mr. Gordon had always planned to pay for Sarah's college expenses, the fact that he was doing so did not constitute a change in circumstances and did not constitute a de facto change in custody.

The court below denied the motion to modify without indicating the basis for the denial. This appeal followed.

II. LEGAL ANALYSIS

A. Standard of Review

The standard of review of denial of a motion to modify a child support obligation is set out in Morrison v. Meadors, 892 S.W.2d 786, 788 (Mo.App.1995). We will affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We accept as true the evidence and permissible inferences which may be drawn favorably to Respondent as the prevailing party in this case and disregard contrary testimony. Snowden v. Gaynor, 710 S.W.2d 481, 483 (Mo.App.1986). "Deference is accorded the trial judge even if there is evidence which might support a different conclusion." Reese v. Reese, 885 S.W.2d 39, 40 (Mo.App.1994).

B. Refusal to Modify Decree Based on 20 Percent Change in Form 14 Amount Was Not Error

Mr. Gordon claims on appeal that he showed that the amount of child support appropriate under Form 14 changed more than 20 percent, and therefore he was entitled to a modification of child support under Section 452.370.1, which states in relevant part:

Except as otherwise provided in subsection 6 of section 452.325, the provisions of any decree respecting maintenance or support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.... If the application of the guidelines and criteria set forth in supreme court rule 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 added).

First, and contrary to Mr. Gordon's contentions, Section 452.370.1 does not require a trial court to grant a motion to modify simply because the Form 14 calculation has changed 20 percent or more from the date of the last child support order. Section 452.370.1 simply states that such a 20 percent or greater change in the amount of child support which would be due under Form 14 constitutes a prima facie showing "of a change of circumstances so substantial and continuing as to make the present terms unreasonable." Id. Such a showing may be countered by contrary evidence.

Second, Mr. Gordon did not present evidence from which the trial court was required to find that the Form 14 amount changed by more than 20 percent. The evidence which Mr. Gordon presented to support his claim that such a change occurred consisted of evidence: (1) that Mrs. Gordon's investments had increased substantially in value; (2) that Mr. Gordon was now paying Sarah's college expenses (amounting to nearly $5,000 as of the time of trial) for room, board, tuition, fees and expenses; and (3) that Sarah was no longer residing with Mrs. Gordon on a day-to-day basis, and that this lowered Mrs. Gordon's expenses for Sarah. In fact, he argued that he paid for all of Sarah's expenses and was the de facto custodial parent, and that this supported modification of the child support order.

In making these arguments, Mr. Gordon seems to assume that a prima facie case is made out simply by showing that he has increased his expenditures by 20 percent or more, or by showing that Mrs. Gordon's assets have increased in value by 20 percent or more. In McMickle v. McMickle, 862 S.W.2d 477, 480-81 (Mo.App.1993), we specifically rejected the argument that a 20 percent change in a single factor, such as income, would invoke the presumption of changed circumstances. We held that, to the contrary, "when determining if there is a prima facie showing of a change of circumstances, one computation of child support is to be made utilizing [all] the guidelines and criteria set forth in all the subsections of Rule 88.01." Id. at 481.

We find that Mr. Gordon has failed to meet this latter standard. Gross income is defined in Form 14 to include "income from any source" and includes such earnings as capital gains, interest, dividends, annuities and pension and retirement benefits. See Form 14, "Directions for Completion of Form 14." While Mr. Gordon suggests that the increase in the value of Mrs. Gordon's stock constitutes capital gains, we do not agree that the evidence below supported this conclusion. It showed only that Mrs. Gordon would have had a capital gain if she had liquidated certain of her assets on a particular date. She did not liquidate those holdings, however, and Form 14 does not provide for consideration of the increased value of stocks or other marital or non-marital property held by a party when determining child support. Instead, the amount of child support due under Form 14 is calculated based on each parent's income. ⁵

We also disagree with Mr. Gordon that the 20 percent threshold was met by his evidence that he paid for almost all of Sarah's college expenses. The Directions for Completion of Form 14 state that extraordinary expenses such as the cost of "special or private elementary and secondary schools" and similar academic, social, athletic or cultural activities may be included in figuring the amount of child support due under Form 14. The Directions, however, do not provide that post-secondary...