Harding v. Harding, WD
| Decision Date | 17 March 1992 |
| Docket Number | No. WD,WD |
| Citation | 826 S.W.2d 404 |
| Parties | Janice E. HARDING, Respondent, v. James L. HARDING, Appellant. 44549. |
| Court | Missouri Court of Appeals |
Scott W. Ross, Maryville, for appellant.
Roger Martin Prokes, Maryville, for respondent.
Before LOWENSTEIN, C.J., and SHANGLER and TURNAGE, JJ.
The husband, Jamie Harding, appeals from a divorce decree ordering an even division of marital property and from the Form 14 child support figure of $520 a month to the wife with custody of the two minor children.
The facts
Jamie and Janice were married in 1980, and two children were born of the marriage who are now five and three. Janice and Jamie began sleeping in separate bedrooms in October, 1989, and Janice moved from the home in February, 1990. Janice has an annual salary of $21,372 as a school librarian. Jamie has an annual salary of $10,585 from two part time jobs at hourly wages, and also spends about 40 hours a month raising cattle. The parties started the cattle operation in 1982, on land rented from Jamie's father, and built their herd to 73 cows by holding back heifers until 1985 or 1986. The court found Jamie's farm income to be $16,000 a year. The farming income per year was:
1987 " $ 1,212.00
1988 " $ 4,200.00
1989 " $ 15,200.00
1990 " $ 16,000.00 (expected)
Jamie's total income was then $26,585 per year, or $2,215 a month.
Neither party appears blameless in the failure of the marriage, as shown by the record and stated in the trial court's decree. The major incident important to this appeal, however, is Janice's third pregnancy. In her verified petition for divorce signed on January 31, 1990, Janice alleged that she was currently pregnant with the parties' third child, with the birth estimated to occur on July 9, 1990. On April 23, 1990, Janice answered interrogatories, stating that she had never engaged in sexual intercourse with anyone other than Jamie during the marriage. The child was born on June 30, 1990, and in August, 1990, a blood test showed Jamie was not the father. Janice then admitted to having sexual intercourse with a stranger in September of 1989, just before the parties ended marital relations. The trial court credited Jamie with the cost of the blood test in the award of marital property to Janice.
During trial, Janice submitted an itemized expense statement showing the cost to support the two children born of the marriage to be $628 per month. She also testified on the stand that her figures were correct, and that in fact, the $105/mo. day care cost would decrease when the older child entered Kindergarten. Based on the total monthly salaries found by the trial court, it ordered Jamie to shoulder 55% of the financial burden of raising the two children. Using the Form 14 presumed child support amount of $826, plus $105/mo. day care, the court then ordered $520/mo. child support.
It is within the court's discretion to divide the marital property on the basis of marital misconduct, Colabianchi v. Colabianchi, 646 S.W.2d 61, 64 (Mo. banc 1983); Moseley v. Moseley, 642 S.W.2d 953, 959 (Mo.App.1982) (); § 452.330.1, RSMo 1986. The trial court in this case specifically stated in the divorce decree that the parties were equally blameworthy in the disintegration of the marriage, and split the marital property equally, awarding Janice $26,558 as her share of the farming operation. The court also stated that the post-separation misconduct of Janice, in concealing the paternity of her third child, did not affect the property division. The evidence of the concealment was before the trial court, the court awarded Jamie the cost of proving parentage, and there is no abuse of discretion in the trial court's division of property. In his brief, Jamie impliedly asks for legal expenses in uncovering the deception, yet no request was made of the trial court, and the point is not preserved for review, Bates v. Bates, 761 S.W.2d 186, 189 (Mo.App.1988).
Jamie argues three points relating to the calculation of child support. First, he argues that the trial court must take into account the monthly interest expense on the $26,558 he must borrow to pay Janice for her half interest in the farming operation, reducing his monthly income below $2,215. The trial court has discretion to divide marital property, Colabianchi at 64, and when the economics are such that lump sums are impractical, the court can order installments to be made by one spouse to the other, Levesque v. Levesque, 773 S.W.2d 220, 223 (Mo.App.1989), Goller v. Goller, 758 S.W.2d 505, 508 (Mo.App.1988), and the appellate court may, upon finding error, enter the property division order the trial court should have, Turley v. Turley, 640 S.W.2d 473, 475 (Mo.App.1982). The trial court did not specifically order a lump sum payment, and Jamie points to no authority for the proposition that his alleged interest expense must be subtracted from his monthly income in order to calculate child support. The point is denied.
Second, Jamie argues that the court incorrectly used $105 as the amount of monthly daycare cost for the children, since the older child is entering Kindergarten, and the daycare cost will apparently decrease by $82.50/mo. according to Janice's testimony. However, the trial court is entitled to use the figure that was currently being spent by Janice on daycare, and any changes in circumstances are relegated to the modification process, Morovitz v. Morovitz, 778 S.W.2d 369, 371 (Mo.App.1989), § 452.370, RSMo 1986 (modification based on substantial and continuing change of circumstances rendering terms unreasonable).
Third, Jamie argues that his annual income from the farming operation was exaggerated, and that the trial court should have found an income of $8,500, from an average of the four years' income. However, as the court noted, the lower income from the farming operation in earlier years was due to increasing the herd size. The court did not err in relying upon recent income tax figures showing approximately $16,000 income for 1989 and 1990, upon evidence showing the herd was now built up, and upon Jamie's statement that he "hoped" to net $16,000 from the cattle each year. There was also evidence, based on variations in the farming economy, of more than $16,000 per year future earnings. Given a continuing change in profitability from the cattle, Jamie has the remedy of a modification of the amount of child support, Morovitz, at 371, § 452.370. All points relating to calculation of child support based on Jamie's disposable income and upon daycare costs are denied.
The children's needs
Jamie's most important point is that Janice testified that the children's needs were satisfied by $628 a month. In contrast, the Missouri Presumed Child Support Guidelines found in Form 14, and presumed correct under Rule 88.01, would point to a monthly figure of $931, which was presumably used by the trial court to reach Jamie's monthly child support obligation of $520. The question presented to this court is whether the Rule 88.01 "presumptive figure" may be rebutted by the custodial parent's testimony of lower actual monthly expenses, and if so, is the custodial parent then locked into the figure testified to in court? Rule 88.01 states that:
When determining the amount of child support to order, a court or administrative...
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