Hamilton v. Hamilton, s. WD

• Decision Date: 08 November 1994
• Docket Number: Nos. WD,s. WD
• Citation: 886 S.W.2d 711
• Parties: Cynthia HAMILTON, Appellant, v. Jimmie D. HAMILTON, Respondent. 48845, WD 48869.
• Court: Missouri Court of Appeals

Page 711

886 S.W.2d 711

Cynthia HAMILTON, Appellant, v. Jimmie D. HAMILTON, Respondent.

Nos. WD 48845, WD 48869.

Missouri Court of Appeals Western District.

Nov. 8, 1994.

Terri Gonder, Columbia, for appellant.

Elton W. Fay, Columbia, for respondent.

Before KENNEDY, P.J., and BRECKENRIDGE and SPINDEN, JJ.

SPINDEN, Judge.

Cindy Hamilton appeals the trial court's decree dissolving her marriage to Jimmie Hamilton. She complains that the trial court erroneously awarded physical custody of the couple's 11-year-old, severely-handicapped son to Jimmie ¹ every weekend. She also complains of the trial court's rulings concerning child support, maintenance, property division, failure to order continued health insurance coverage and failure to award her adequate attorney fees. Jimmie cross-appeals; he complains that the trial court did not award him attorney fees. We affirm in part and reverse in part.

The couple was married on September 22, 1973. Three children were born to the marriage. The couple's third child William was severely handicapped as a result of apparent medical malpractice during his birth. William suffers cerebral palsy and scoliosis. His vision and hearing are severely impaired. He does not walk or talk. He cannot feed himself or use the toilet. He has seizures and requires 24-hour care. Cindy has been his primary caretaker since his birth.

Cindy filed for divorce on July 8, 1992, after learning that Jimmie was involved in an adulterous affair. While he and his paramour vacationed in New Orleans, Cindy obtained an ex parte court order prohibiting Jimmie from returning to the marital residence.

Early in the marriage, Cindy earned $300 to $350 a month working part-time. After William was born, she remained at home to care for him and the couple's two older daughters. At the time of trial, she was unemployed and had no income. She claimed monthly expenses of $2427.52.

At the time of trial, Jimmie worked in a position which required him to be out-of-town throughout the week and, at times, during the weekend, too. He participated very little in his children's upbringing. He reported his monthly salary to be $3113 and his monthly expenses to be $4490.36.

The trial court awarded Cindy and Jimmie joint legal custody of the children. It gave Cindy sole physical custody of the two older daughters and granted Jimmie "reasonable visitation." The court gave Cindy and Jimmie joint physical custody of William. The court granted Jimmie physical custody of William from 6:00 P.M. each Friday to 6:00 P.M. each Sunday. The court made no provisions for holidays. The court did provide that "[t]he parties may, by agreement, vary the periods of custody to accommodate their schedules and the needs of William." The court ordered Jimmie to pay Cindy $350 a month for maintenance and $781.42 a month for child support. The court gave Cindy the marital residence. It ordered the parties to split the guardian ad litem fee and costs, and it ordered Jimmie to pay Cindy's attorney fees in the amount of $2463.50.

PHYSICAL CUSTODY OF WILLIAM

In her first point on appeal, Cindy contests the trial court's awarding physical custody of William jointly to her and Jimmie. She does not challenge joint legal custody, but she asserts that joint physical custody was contrary to William's best interests.

We must affirm the trial court's decree if it is supported by substantial evidence, is consistent with the weight of the evidence, and is a proper declaration and application of the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We should set aside the trial court's order concerning child custody on the ground that it is against the weight of the evidence only if we have a firm belief that the order is wrong. Luther v. Vogel, 863 S.W.2d 902, 904 (Mo.App.1993). We give a trial court's determinations in a child custody proceeding greater deference than in any other type of case. Cornell v. Cornell, 809 S.W.2d 869, 873 (Mo.App.1991).

Section 452.375.2 ² requires that custody decisions be made "in accordance with the best interests of the child." The legislature has mandated eight factors which must be considered in determining what constitutes the child's best interests. ³

Cindy first contends that the trial court erred in not finding a pattern of domestic violence. Had it done so, it would have had an obligation to make findings of fact and conclusions of law, as required by § 452.375.2(5), explaining why it awarded joint physical custody to an abusive parent. Cindy notes that at trial Jimmie admitted assaulting her twice. The first time occurred before William's birth when Jimmie admitted wrestling with her. "[W]e both fell down," he said. "It was over in a matter of seconds, probably." The other incident occurred on August 10, 1991, when Jimmie was intoxicated and grabbed Cindy's throat while she held William. Their daughter called police officers who removed Jimmie from the house. We cannot agree that two incidents occurring years apart during a 20-year marriage, in themselves, constituted a "pattern of domestic violence."

To show a pattern of domestic violence, Cindy would have had to establish that the two incidents were representative of Jimmie's typical behavior. She did not claim that those incidents represented a pattern. Although she did aver a pattern of alcohol abuse, she did not establish a pattern of violence. She testified that "even early on in our marriage the man ... was verbal and abusive when he was drunk and so forth." The statute calls for a pattern of violence. ⁴ "Abusive" does not necessarily subsume violence.

She then complained that, contrary to § 452.375.2(3), the trial court failed to give significant weight to Jimmie's indifference toward and inattention to his son until Cindy filed for divorce. She also expressed concern that Jimmie had to work frequently on weekends and would be unable to care for William. While these factors are significant, we do not have a firm belief that the trial court was wrong in concluding that Jimmie will be able to care for his son properly. As to Jimmie's work schedule, the trial court provided that the parties could "vary the [ordered] periods of custody to accommodate their schedules and the needs of William." A trial court's award of child custody should not be disturbed unless we are firmly convinced that the welfare of the child requires some other disposition. Lovin v. Lovin, 787 S.W.2d 865, 866 (Mo.App.1990).

The trial court concluded from the evidence that William's interests were best served by spending weekends with his father. This certainly will assure that William frequently sees his father and will promote a continuing relationship, consistent with the public policy enunciated in § 452.375.3. ⁵ Burkhart v. Burkhart, 876 S.W.2d 675, 679 (Mo.App.1994); Leimer v. Leimer, 715 S.W.2d 310, 313 (Mo.App.1986).

CHILD SUPPORT

In her second point, Cindy contends that the trial court erred in setting Jimmie's child support obligation at $781.42. Cindy submitted a Form 14 pursuant to Rule 88.01 which calculated Jimmie's presumed obligation to be $1137 a month. Jimmie's Form 14 calculation set his obligation at $864 a month. Cindy acknowledges that her Form 14 amount is not correct, but her point is that the trial court did not explain how it determined that Jimmie's child support obligation should be $781.42.

Rule 88.01(e) provides that the trial court is to presume, unless the evidence indicates otherwise, that the Form 14 amount is the proper amount of child support. The rule also provides:

It is sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to Civil Procedure Form No. 14 is correct if the court ... enters in the case a written finding of a specific finding on the record that the amount so calculated, after consideration of all relevant factors, is unjust or inappropriate.

The trial court in this case made no such finding nor did it use the calculations provided by Cindy and Jimmie on their Form 14s.

Use of Form 14 in calculating child support obligation of parents is mandatory. In re Marriage of Lowe, 860 S.W.2d 813, 818 (Mo.App.1993). The trial court's failure to use either Cindy's or Jimmie's Form 14 computations or to indicate how it calculated the child support obligation is reversible error. In re Marriage of V.A.E. and D.A.E., 873 S.W.2d 262, 270 (Mo.App.1994).

Jimmie speculates that the trial court arrived at its figure by starting with his proposed Form 14 figure and reducing the obligation to recognize the two days a week Jimmie would have custody of William. Yet, to make the calculation work out, he further assumes the trial court rejected his proposed starting point of $960 in favor of $961. His Form 14 also assumed that Cindy would contribute $347 a month in income although she had not worked since William's birth.

While this was a possible explanation for how the trial court derived the amount of Jimmie's child support obligation, it still was a deviation from either party's Form 14 calculation. The rule is clear in its mandate that the trial court not deviate from a Form 14 calculation unless it finds, on the record, that the Form 14 amount is unjust or inappropriate.

When a trial court deviates from the Form 14 amount, the record must exhibit what factors caused the deviation. Summerville v. Summerville, 869 S.W.2d 79, 83 (Mo.App.1993). Although the trial court does not need to complete its own Form 14, the Form 14 calculations must be apparent from the record, Umphenour v. Umphenour, 831 S.W.2d 764, 767 (Mo.App.1991), and the factors which caused the deviation from Form 14 must be apparent in the record. Summerville, id. ⁶

Because we are unable to discern without much speculation how the trial court determined the amount of child support and because the trial court deviated from Form 14 without making the necessary findings, we reverse the portion of the decree...