Hoffman v. Hoffman

• Decision Date: 22 February 1994
• Docket Number: Nos. 63128,63151,s. 63128
• Citation: 870 S.W.2d 480
• Parties: Maureen HOFFMAN, Respondent/Cross-Appellant, v. Mark HOFFMAN, Appellant/Cross-Respondent.
• Court: Missouri Court of Appeals

Page 480

870 S.W.2d 480

Maureen HOFFMAN, Respondent/Cross-Appellant, v. Mark HOFFMAN, Appellant/Cross-Respondent.

Nos. 63128, 63151.

Missouri Court of Appeals,

Eastern District,

Division Three.

Feb. 22, 1994.

Daniel P. Card and Alisse C. Camazine, St. Louis, for appellant.

Tremayne, Lay, Carr, Bauer & Nouss, Kenneth S. Lay, St. Louis, for respondent.

KAROHL, Judge.

Husband appeals from a decree of dissolution which terminated a ten year marriage. Two children were born of the marriage and husband was ordered to pay $1,598 in child support for both children to the wife. The court ordered no maintenance to either party. On appeal, husband contests the manner in which Missouri Supreme Court Rule 88, Form 14 was applied in determining child support; the failure of the trial court to give him credit for health insurance premiums for the children; and, the failure to allow him to claim one or both of the children as dependents for tax purposes. We affirm.

The parties were married in 1982 in Miami, Florida and resided after the marriage in Houston, Texas. Both were residents of Missouri for more than ninety days prior to the filing of the petition for dissolution. The parties have two sons, eight and five years old. They agreed to joint legal custody. Wife is a psychiatric social worker. She is the Clinical Director of Health South Head Injury Rehabilitation Center. Her gross monthly income is $3,588. Husband is a CPA and also has his MBA. He is employed with Price Waterhouse. His gross monthly income is $8,833.

In his first point, husband contends the trial court erred in mechanically applying the Schedule of Benefits of Missouri Supreme Court Rule 88.01 Form 14 in awarding $1,598 in child support for the parties two minor children. He contends wife's own evidence rebutted the amount awarded where she showed her need for the children were less than the scheduled amount. He argues the trial court misapplied the law in concluding that husband had the burden of proof to rebut use of the figure in the Schedule.

"There is a rebuttable presumption that the amount of child support calculated pursuant to Civil Procedure Form No. 14 is the amount of child support to be awarded in any judicial ... proceeding for the dissolution of marriage...." Rule 88.01(e). The court may make an award which differs from the chart if it enters a finding on the record that the amount of child support calculated pursuant to the chart is unjust or inappropriate. Allen v. Allen, 811 S.W.2d 58, 59 (Mo.App.1991). The rule assumes the calculation pursuant to the form is correctly done.

Each party submitted a Form 14 but the trial court did not adopt either party's proposal. The trial court found wife's gross monthly income to be $3,588 and husband's gross monthly income to be $8,833. It determined that the:

employment-related costs of the child care option which the Court finds to be in the best interest of the minor children are ... $778.00 per month less $80.00 federal income tax credit. Applying the relative percentage of contribution of 28.9% for [wife] and 71.1% for [husband] and including child care costs, [husband's] share, payable to [wife] is ... $1598.00. Said amount, constituting the resultant calculation based on Rule 88.01 is equitable and not unjust or inappropriate because it is presumptively correct, and [husband] has not, by any credible evidence, overcome the presumption.

At trial, wife proved total monthly expenses, including rent and utilities, but not including her direct expenses for the children, were $1,829.24. If the total is apportioned one-third each, $1,219.50 can be attributed to the children's needs. ¹ Wife showed the children's direct expenses were $695 and her work-related child care cost was $778. These three amounts, added together, equal the children's total monthly expenses of $2,692.50. There was evidence to support a finding husband's share of the children's expenses would be $1,914.37 based on the trial court's determination that the husband's proportional share of the children's expenses was 71.1% of $2,692.50.

The trial court mechanically used Form 14. It ordered child support of $1,550 for two children, the Schedule figure for a household with monthly income of $10,000, although husband's and wife's combined gross monthly income exceeded $10,000. Form 14 may be used in such cases. Mehra v. Mehra, 819 S.W.2d 351, 354 (Mo. banc 1991) and Boudreau v. Benitz, 827 S.W.2d 732, 735 (Mo.App.1992). Form 14 requires consideration of the monthly gross income of both the custodial and non-custodial parent as well as the custodial parent's reasonable work-related child care costs. Mocciola v. Mocciola, 834 S.W.2d 872, 873 (Mo.App.E.D.1992). The court made a specific finding that the wife's reasonable work-related child care costs were $778. It reduced this amount by $80 for wife's federal income tax credit resulting in the figure of $698 for work-related child care costs. Adding $698 to the Scheduled child support, $1,550, the trial court determined the preliminary figure of $2,248. The court ordered husband to pay 71.1% of that amount, $1,598, in child support for his two sons. Thus, wife's evidence supported the Form 14 scheduled amount, not less, as husband contends.

The cases upon which husband relies are factually distinguishable because in those cases mother's evidence proved she needed less than the scheduled amount and the trial court did not enter findings explaining why it awarded amounts larger than the Schedule figures. See Harding v. Harding, 826 S.W.2d 404 (Mo.App.1992) and Heins v. Heins, 783 S.W.2d 481 (Mo.App.1990). This point is denied.

In his second point, husband argues the trial court erred in not adjusting the support award to credit the total of his direct support after granting wife primary physical custody where the parties agreed to a shared custody plan which husband contends gives him physical custody 36% of the time. He argues the trial court erred in failing to make an adjustment in Form 14 figures so as to take into consideration the shared custody arrangements and credit child care expenses he will pay while the children are residing with him against the Schedule figure. He calculates the children will be with him 36% of the time, thus, he should share with wife payment of only 64% of the required support.

The trial court found "the parties agree that the best interest of the minor children would be served by the Wife and Husband having joint legal custody, and by placing their primary physical custody with the wife, subject to the Custody Plan agreed to by the parties...." The Custody Plan submitted to the court as a joint exhibit did not designate which party would be the "primary physical custodian" but did set forth the times each parent would have physical custody of the children. Husband has physical custody on alternate Wednesdays until Thursday morning at the beginning of school or day care and in alternate weeks from after school or day care on Friday until Monday at the beginning of school or day care. He also has physical custody of the children for four weeks each summer and on selected holidays. Wife has custody the remaining time.

The determination of the trial court in regard to child custody is granted greater than usual discretion. Johnson v. Johnson, 839 S.W.2d 714, 717 (Mo.App.W.D.1992). This court will defer to the trial court's view of the facts even though the evidence might support a different result. Buchanan v. Buchanan, 828 S.W.2d 946, 949 (Mo.App.1992). Only where the trial court's ruling is clearly against the logic of the circumstances or is arbitrary or unreasonable will an abuse of discretion be found. Id.

There was substantial evidence to support the trial court's decision to give primary physical custody to the wife. Wife was the primary caretaker of the children during the marriage. Husband worked long hours during the marriage which prohibited him from caring for the children. Wife was more sensitive to the emotional needs of the children. Husband was not cooperative in scheduling school conferences with the children's teachers. Further, pending the dissolution, there were numerous occasions where husband did not take the children on his scheduled custody days and did not attempt to reschedule. There was no error in giving primary physical custody to the wife in the agreed shared custody case.

Brief periods of visitation with the non-custodial parent should not interrupt the child support payments. Klinge v. Klinge, 663 S.W.2d 418, 419 (Mo.App.1983). In Klinge, the husband was granted visitation rights which included two three-week periods in the summer. Id. However, the court held he was not relieved of his support obligation during the six weeks of his visitation and he was not entitled to deduct for the weeks when he had custody of the child. Id. Missouri courts have denied credit for support paid other than as ordered by the decree, holding that "[w]here a father must pay child support to his former wife, amounts he had given to or spent on behalf of the children in [wife's] custody are not credits against arrearage owed." Id., citing Lieffring v. Lieffring, 622 S.W.2d 519, 520 (Mo.App.1981); Royall v. Legislation & Policy Division, 610 S.W.2d 377, 380 (Mo.App.1980); Goeller v. Goeller, 346 S.W.2d 545, 547 (Mo.App.1961). Absent a judgment relieving the non-custodial parent from the obligation to pay child support while that parent has temporary custody, he is not entitled to deduct pro rata amount of child support during the time he has temporary custody. Meadows v. Meadows, 686 S.W.2d 558, 561 (Mo.App.1985). There was no agreement between the parties relieving husband of child support during the time he has temporary custody. There is nothing in the record to suggest the trial court did not take into consideration the element of direct support during the times the two minor children will spend with husband in setting...