Haden v. Riou

• Decision Date: 20 February 2001
• Citation: 37 S.W.3d 854
• Parties: (Mo.App. W.D. 2001) . Glen Haden, Appellant v. Cathy Lynn (Haden) Riou, Respondent WD58199 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

37 S.W.3d 854 (Mo.App. W.D. 2001)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Glen Haden, Appellant v. Cathy Lynn (Haden) Riou, Respondent

WD58199

Missouri Court of Appeals Western District

Handdown Date: 02/20/2001

Appeal From: Circuit Court of Jackson County, Hon. William S. Nixon, Judge

Counsel for Appellant: Allen S. Russell

Counsel for Respondent: Gabriel A. Domjan

Opinion Summary: Glen Haden (Father) filed a motion to modify his child support obligation, child custody, and visitation. Cathy (Haden) Riou (Mother) filed a cross motion to modify child support. The trial court modified the child custody arrangement, granting the parties joint legal and physical custody, with the primary residence of the children being with Mother. The Court entered a parenting plan detailing visitation and outlining the joint custody arrangement for the three minor children. The court rejected the Form 14s submitted by the parties and calculated its own Form 14 presumed child support amount by imputing $4,000 to Father because he was unemployed. The Court rebutted its Form 14 presumed amount as being unjust and inappropriate and found the actual costs of raising the three minor children totaled $30,348.06, based on Father's exhibits detailing his expenses for the children in 1998. The Court then modified Father's child support obligation by increasing it to $1,063.00 per month. Father appeals.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

Division holds: The trial court did not err in imputing income to Father in the amount of $4,000. The trial court erred in rebutting its Form 14 calculation as being unjust and inappropriate because the Court incorrectly relied on Father's expenses for 1998 as the "actual costs" of raising the children. Father's estimated expenses did not contain any actual or estimated expenses of the custodial parent, Mother. Moreover, the children did not live with Father year around. The child support award is reversed and remanded with directions to enter a child support award, including any retroactive amounts, consistent with the Form 14 presumed child support calculation. The judgment is also reversed and remanded to make written findings in compliance with section 452.375.6, RSMo Cum. Supp. (1998). The trial court judgment is affirmed in all other respects.

Opinion Author: Joseph M. Ellis, Judge

Opinion Vote: AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. Smart, P.J. and Stith, J., concur.

Opinion:

Glenn J. Haden (Father) and Cathy Lynn Riou (Mother) were married on May 15, 1980. The Circuit Court of Jackson County dissolved the marriage on August 10, 1994. Three children were born of the marriage, Logan Haden, born January 1, 1984, Seth Haden, born October 24, 1985, and Lacy Haden, born September 30, 1987. Pursuant to the dissolution decree, the parties were awarded joint legal custody, and Mother was awarded primary physical custody of the parties' three minor children. Father was ordered to pay $582 per month for support of his three children, retroactive to August 1, 1994. Father was awarded visitation with the children on alternate weekends, certain holidays, Father's Day, and four weeks in the summer. Father was ordered to pay fifty percent of any health care costs for the children that were not covered by insurance. On February 23, 1998, Father filed a motion to modify child support, child custody, and visitation. He alleged there were substantial and continuing changed circumstances since the entry of the decree of dissolution and that modification of the decree was in the best interests of the children. The motion alleged changed circumstances in that the children had grown older and expressed a desire to spend more time with their father; the children spent approximately half of their time with the father; and the parties shared expenses for the children. The motion further asserted that Father had paid many of the children's expenses, including school, clothing, extra-curricular, and medical, and these expenses should be credited against his child support obligation. Father asked for joint physical custody or that he be named the primary physical custodian. In the alternative to primary physical custody being awarded to Father, he also asked that his child support obligation be reduced or eliminated.

On April 3, 1998, Mother filed an answer and cross-motion to modify the dissolution decree as to child support. She asked for an increase in child support because the following had occurred since the dissolution decree was entered: the children's expenses had increased, Father's income had increased, the cost of maintaining the children's standard of living had increased, Logan Haden had incurred extraordinary medical expenses and Mother needed assistance from Father to pay those expenses, and Father's obligation to support had increased by 20% pursuant to the child support guidelines in effect at the time modification was requested.

A hearing was held on the motions to modify on June 14, 1999, and the following evidence was adduced. The couple never followed the visitation plan outlined in the dissolution decree. Instead, during the school year, Seth and Lacy's visitation with Father consisted of spending every other weekend with him plus Monday night and Thursday night. Since Father moved to Lee's Summit, approximately a mile from Mother's home, the parties have deviated from their own arrangement and Seth and Lacy were generally allowed to stay wherever they wanted to on any given night, except the alternating weekend visitation was always adhered to. The two youngest children often went back and forth between the two houses during the day and after school. Father exercised his right to have the children for continuous time during the summer only once, and that was for a week of vacation. Logan, the oldest child, chose to spend only alternating weekends with Father because he did not want to disrupt his schedule with changing households throughout the week.

Father continued to pay $582 per month in child support for his three children until he lost his job on February 15, 1999. At the time of the hearing, Father was three months behind in child support payments. Mother knew Father was going to lose his job approximately six months before he was fired because Father worked for Mother's brother-in-law at Kenny's Floor & Tile. Mother did not tell Father about the impending release from his job, so he was unable to find other employment prior to being fired. Father was receiving $187 per week in unemployment benefits and he started his own business of repairing whirlpool tubs on May 1, 1999. Father took out a loan for $5,000 to start his business and he received approximately $6,000 in gross income from his business between May 1, 1999, and the date of the hearing, June 14, 1999. Father was remarried and his wife's income equaled $40,000 per year.

Father presented exhibits detailing what he claimed were his expenses for the children in 1998. The expenses included the amount of child support he paid, $582 per month, a portion of his mortgage payment, utility payments, grocery bills, vacation costs, automobile expenditures and the like, and totaled $30,348.06. Father introduced a similar exhibit covering the period from January 1, 1999, to June 14, 1999, the date of the hearing, which reflected a total of $12,442.59. Mother disputed most of the expenditures Father listed. But the record is effectively devoid of any evidence regarding Mother's expenses for the children.

The Court entered a judgment modifying the dissolution decree finding that a substantial and continuing change of circumstances had occurred with regard to the Mother and the children, requiring a modification in child support and the parenting plan. The Court found the parents had voluntarily deviated from the Court's original order of physical custody. The Court prepared its own parenting plan for the parties to follow. The parents were awarded joint legal and physical custody of the three children, with their primary residence to be in Mother's home. According to the visitation schedule set up by the Court, the children were to reside with Mother during the week and Father was granted visitation on alternating weekends and Tuesday evenings. During the summer, from June 15 to August 15 of each year, the children were to reside with Father, and Mother would be allowed visitation on alternate weekends. Father was awarded uninterrupted parenting time in even numbered years from June 30 to July 14 and in odd numbered years from July 25 to August 8. Mother was granted uninterrupted parenting time in odd numbered years from June 30 to July 14 and in even numbered years from July 25 to August 8. The Court also made a holiday schedule basically alternating holidays between Mother and Father with the exception of Mother's Day and Father's Day, which would be spent with the respective parent every year.

The Court found Father was unemployed due to no fault of his own; however, for purposes of child support, the Court imputed $4,000 per month in income to the Father. Father and Mother each filed a Form 14 calculation of presumed child support with the court, but the Court rejected both of their calculations.¹ The Court prepared its own Form 14 calculation for child support, finding the correct presumed child support amount to be $786.00 per month for three children, $678.00 per month for two children, and $487.00 per month for one child.² The court found its calculations to be unjust and inappropriate; thus, it rebutted its own Form 14 presumed child support calculations. The Court found the actual expenses for supporting the minor children totaled $30,348.06 per year, relying exclusively on Father's exhibits reflecting only Father's estimated expenditures for 1998. Using that figure, the Court found Father's child support obligation, before...