Harris v. Harris, WD84946

• Court: Court of Appeal of Missouri (US)
• Parties: BETHANY D. HARRIS, Respondent, v. DOUGLAS L. HARRIS, Appellant.
• Docket Number: WD84946
• Decision Date: 08 November 2022

BETHANY D. HARRIS, Respondent,
v.
DOUGLAS L. HARRIS, Appellant.

No. WD84946

Court of Appeals of Missouri, Western District, Fourth Division

November 8, 2022

Appeal from the Circuit Court of Moniteau County, Missouri The Honorable Aaron John Martin, Judge

Before Gary D. Witt, Chief Judge, Presiding, Mark D. Pfeiffer, Judge and Louis Angles, Special Judge

OPINION

Gary D. Witt, Judge

Douglas Harris ("Husband") appeals the judgment of the Circuit Court of Moniteau County, Missouri ("trial court"), granting the parties dissolution of their marriage; dividing their marital property; ordering Husband to pay child support and maintenance to Bethany Harris ("Wife"); and providing a parenting plan for the parties and their six minor children. On appeal, Husband claims that the trial court erred in: (1) awarding child support based on an improper imputation of income to Husband; (2) awarding child support in that the amount ordered exceeded his ability to pay; (3) finding that Wife had no income for

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purposes of calculating child support in that the trial court should have counted the earned income tax credit as income to Wife; (4) awarding Wife maintenance because the earned income tax credit should have been counted as income to Wife, and the amount of maintenance awarded exceeded Husband's ability to pay; and (5) valuing the marital home and awarding it to Wife instead of accepting Husband's higher valuation and awarding the home to Husband. We affirm the judgment of the trial court.

Factual and Procedural Background

Husband and Wife were married October 3, 1999. Husband and Wife separated on approximately November 2, 2020, and Wife filed for divorce. During the marriage, Husband and Wife had eight children, two of which are emancipated. By agreement between Husband and Wife, during the marriage Wife stayed home with the children and cared for them and home-schooled them. Wife has not been employed outside the home since she held a part-time job in 2002. At the time of trial, six of the children remained unemancipated and were between the ages of one and fourteen. The parties stipulated that Wife would have sole legal and physical custody of the unemancipated children, and Husband would have limited visitation with the children. Husband objected to Wife having sole decision-making authority as to medical care for the children as he did not want to be financially responsible for whatever Wife may choose to decide for the children.

Wife did not earn any significant income during the marriage because she was caring for the children. Husband worked at multiple different full- and part-time jobs during the marriage including self-employed construction, lawn care service, fencing installation, and automobile mechanic. At the time of trial Husband was employed at an

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automobile dealership, and his gross monthly income was $3,900 per month. During the course of the marriage Husband regularly worked multiple jobs, sometimes as many as three to four at one time, providing for the family. Husband earned as much as $10,829 per month at times. At around the time of the separation, Husband changed his employment, and at trial he testified that he is no longer willing to work multiple jobs to support Wife and their children. Even though Husband testified he was going to sell his lawn care business to his father, the trial court found that he would continue to receive substantial income from this business and found his father's running of the business may be temporary based on prior times when Husband had changed jobs. The trial court found Husband to be intentionally underemployed and imputed income to Husband at $8,000 per month.

The trial court found the Form 14 presumed child support amount to be $2,252 per month, found that amount not to be unjust and inappropriate, and ordered support to be paid by Husband to Wife in that amount. The trial court found that Wife was not able to support herself based on her limited education and work experience as well as her responsibility to care for six small children and home-school them, and it found that Husband had the ability to provide maintenance to Wife and ordered modifiable maintenance in the amount of $1,700 per month.

Wife's real estate expert valued the marital home at $179,000. Husband did not call an expert but testified his opinion that the home should be valued at $240,000 and asked that the home be awarded to him at that value. The trial court found the value of the home to be $179,000 subject to a mortgage of $78,675.99. The home was awarded to Wife as

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well as the obligation to pay the mortgage thereon. The trial court issued its judgment, and this appeal follows.

Standard of Review

"We will affirm the [trial] court's judgment unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law." Sparks v. Sparks, 417 S.W.3d 269, 280 (Mo. App. W.D. 2013). We review the evidence in the light most favorable to the trial court's judgment and defer to the trial court's credibility determinations. Heck v. Heck, 318 S.W.3d 760, 764 (Mo. App. W.D. 2010). This is so "even if the evidence could support a different conclusion because the trial court is in a better position to judge witness credibility, sincerity, character[,] and other intangibles not revealed in a transcript." Taylor v. Taylor, 12 S.W.3d 340, 344 (Mo. App. W.D. 2000). "The trial court's decision regarding maintenance will not be reversed absent an abuse of discretion[,]" and "the trial court's division of property will be disturbed on appeal only if it is so 'heavily and unduly weighted in favor of one party as to amount to an abuse of discretion.'" Id.

Analysis

Point I: Imputation of Income to Husband

Husband's first point on appeal is that the trial court erred in imputing income to Husband for purposes of calculating child support because Husband was not unemployed or underemployed and did not voluntarily reduce his income to evade his parental responsibilities. We disagree.

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The trial court calculated monthly child support of $2,252 Husband was to pay Wife for the care of their six minor children remaining in the home with Wife by imputing income of $8,000 per month to Husband. Child support is calculated by the trial court using the Missouri Supreme Court's Form 14 along with its Directions and Comments for Use. Heck, 318 S.W.3d at 764. Form 14 considers the respective parents' incomes, and the Directions and Comments provide that a parent's gross income may be based on income imputed to that parent if the parent is unemployed or found to be underemployed. Id. Comment H to Line 1 of Form 14 provides:

Imputed Income: When determining whether to include imputed income and, if so, the amount to include in a parent's "gross income," a court or administrative agency shall consider all relevant factors including:

(1) The parent's probable earnings based on the parent's work history during the three years, or such time period as may be appropriate, immediately before the beginning of the proceeding and during any other relevant time periods; and

(2) The parent's assets, residence, age, and health; and

(3) The parent's occupational qualifications, employment potential, educational attainments, and record of seeking work; and

(4) The parent's criminal record or other employment barriers; and

(5) The available work or employment opportunities in the community and the prevailing earnings level in the local community; and

(6) Whether the parent is custodian of a child whose condition or circumstances make it appropriate that the parent not be required to seek employment outside the home; and

(7) Other relevant background factors in the case.

"The theory behind imputing income to a spouse/parent is directed toward preventing a spouse from escaping responsibilities to the family by deliberately or voluntarily reducing his or her income." Cross v. Cross, 318 S.W.3d 187, 192 (Mo. App. W.D. 2010). "Imputation of income is proper where a parent has voluntarily reduced his or her income without justification." Id. "The most common scenario for voluntary reduction of income

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without justification is where a parent deliberately quits work to reduce his or her child support." Id.

Husband's argument is that, since he is employed full time, he is neither unemployed nor underemployed, and thus imputation of income to him was inappropriate.^[1] However, as the trial court found, Husband and Wife decided together to have eight children, six of whom remain unemancipated. Husband and Wife agreed that Wife would stay home with the children and home-school them while Husband worked many hours each week among several jobs to support the family. Wife had not worked outside the home since she last held a part-time job in 2002. Besides home-schooling the children, there are two children who were not yet of school age at the time of the judgment. Wife has only a GED and extremely limited work experience. If Wife were to seek employment she would have to find child-care for the two youngest children who were not yet of school age at the time of the judgment, and the remaining children would have to be enrolled in school rather than home-schooled. Even during the trial, Husband was ambivalent about whether he wanted the children to start...