Holmes v. Holmes, 63496

• Decision Date: 05 July 1994
• Docket Number: No. 63496,63496
• Citation: 878 S.W.2d 906
• Parties: Jennifer Lynne HOLMES, Respondent, v. Clifford Wayne HOLMES, Appellant.
• Court: Missouri Court of Appeals

Page 906

878 S.W.2d 906

Jennifer Lynne HOLMES, Respondent, v. Clifford Wayne HOLMES, Appellant.

No. 63496.

Missouri Court of Appeals,

Eastern District,

Division Four.

July 5, 1994.

Maia Brodie, Bryan L. Hettenbach, Clayton, for appellant.

Donald Lee Sanders, Springfield, for respondent.

CARL R. GAERTNER, Judge.

Clifford Wayne Holmes (husband) appeals from the decree of dissolution of his marriage to Jennifer Lynne Holmes, (wife) challenging the trial court's child support and maintenance awards, its failure to appoint a guardian ad litem to represent the parties' minor children, and its division of marital property. We affirm as modified.

Husband and wife were married on November 6, 1975. The parties had a daughter and son during the marriage: Tiffany Lynne Holmes, born February 12, 1979, and Kerry Wayne Holmes, born November 29, 1980. The parties lived in the Springfield, Missouri, area until June 1990 when they moved to St. Louis County. They separated on March 2, 1991. On March 14, 1991, wife filed a petition for dissolution of marriage in which she sought primary physical custody of the children, child support, maintenance, an award of marital property and attorney's fees and costs. On March 28, 1991, husband filed his answer to the petition together with a cross-petition in which he sought joint custody of the children, an equitable division of the marital property and attorney's fees and costs.

A hearing on the merits was held on August 10, 1992. The evidence presented concerning the parties' occupations revealed that husband was employed as a construction worker when the parties lived in the Springfield area. Conflicting testimony was presented concerning husband's earnings. ¹ Later, he worked part time at AT & T while he attended college. In May 1990, he graduated with a degree in accounting. Conflicting testimony was offered concerning whether husband had taken the Certified Public Accountant Exam. ² In September 1990, husband obtained a job at an accounting firm. He was paid a $20,000 annual salary but was discharged in March 1991. He remained unemployed until he obtained an accounting job at Natoli Engineering in September 1991. He was paid an annual salary of $30,000 but was discharged on May 23, 1992. He testified that he had no explanation for why he was discharged. At the time of the hearing, husband was still unemployed and testified that he was having difficulty finding employment.

Wife has a high school education. However, she is a licensed insurance agent, and at the time of the hearing she had worked in the insurance field for 17 years. When the parties moved to St. Louis County, she obtained a job as manager of Meramec Valley Mutual Insurance Company. At the time of the hearing, she still worked for the company, earning $36,050 per year. However, after filing her dissolution petition, wife notified the company that she was resigning because she felt the job demanded too much of her time, there was no chance of advancement or increase in income, and she planned to move back to the Springfield area to live with her parents and enroll in college on a full-time basis to obtain a degree in business management. She had no employment prospects in Springfield but hoped to find a part-time job. Wife testified that she and husband had agreed that she would support the family while he obtained his college degree and then he would support the family while she obtained her degree.

Both parties filed financial statements with the court. Husband's statement revealed that he earned $200 per month in income from the hairstyling salon which he owned and that he had monthly expenses totaling $2,337. Wife's statement showed that she had a gross monthly income of $3,004.17 and monthly expenses totaling $3,118.77.

On January 22, 1993, the trial court entered its decree of dissolution. The court awarded wife legal and primary physical custody of the children and granted husband rights of temporary custody. Pursuant to Rule 88.01, the court made a Form 14 calculation of presumed child support based on imputed incomes of $1,000 per month for wife and $2,500 per month for husband. The court ordered husband to pay the presumed support amount of $275 per month per child.

The court awarded wife $100 per month in limited, nonmodifiable maintenance for a period of three years. The court also ordered the following division of marital property. Wife was awarded: 1) all personal property in her possession, including all bank accounts 2) scuba gear, a refrigerator and computer equipment in husband's possession; 3) all of the parties' insurance policies; 4) $5,684.42 being held by the parties' insurance company in insurance proceeds for an automobile accident; and 5) $3,000, representing 50 percent of the proceeds from the sale of the parties' beauty salon, as additional maintenance. Husband was awarded: 1) all remaining personal property in his possession, including all checking accounts; and 2) the remaining $3,000 in proceeds from the sale of the beauty salon. Additionally, the court ordered wife to provide medical insurance coverage for the children. Husband was ordered to pay 75 percent of all uninsured, dental and orthodontic bills of the children and all marital debts. The court assessed costs against husband. This appeal followed.

Our review of the judgment in this court-tried case is governed by Rule 73.01(c) and the principles enunciated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We must affirm the judgment of the trial court unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 32. In determining the sufficiency of the evidence, we will "accept as true the evidence and inferences from that evidence that are favorable to the trial court's decree and disregard all contrary evidence." T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989).

I. Child Support

In his first point, husband claims the trial court erred in calculating his child support obligation. He argues the trial court abused its discretion by imputing too much income to him and too little income to wife without any evidentiary support.

The trial court has broad discretion in setting awards of child support. Foster v. Foster, 844 S.W.2d 559, 562 (Mo.App.1992). We will not substitute our judgment for that of the trial court absent a manifest abuse of discretion, and we will not disturb an award of child support unless the evidence is "palpably insufficient" to support it. Hogrebe v. Hogrebe, 727 S.W.2d 193, 195 (Mo.App.1987).

In order to prevent a spouse from escaping responsibilities to support minor children, a court may, in proper circumstances, impute an income to that spouse according to an amount he or she could earn by using his or her best efforts to gain employment suitable to his or her capabilities. Jensen v. Jensen, 877 S.W.2d 131, 136 (Mo.App.1994); In re Marriage of Garrison, 846 S.W.2d 771, 775-76 (Mo.App.1993); Hogrebe, 727 S.W.2d at 195. Generally, a court can impute a higher income to a spouse if the evidence indicates he or she has the capacity to earn more. Luker v. Luker, 861 S.W.2d 195, 199 (Mo.App.1993). This measure has been applied in a number of situations, including where a spouse has: 1) voluntarily reduced his or her income without justification, Devries v. Devries, 804 S.W.2d 825, 827 (Mo.App.1991); and 2) involuntarily lost a job but failed to use his or her best efforts to obtain a new job, Garrison, 846 S.W.2d at 776; Hogrebe, 727 S.W.2d at 196, refused to accept employment offers, Luker, 861 S.W.2d at 199, or failed to show that the unemployment was other than temporary. Foster, 844 S.W.2d at 562; Stewart v. Stewart, 866 S.W.2d 154, 157 (Mo.App.1993).

An award of child support must be supported by evidence of the parent's ability to pay. Keck v. Keck, 820 S.W.2d 727, 729 (Mo.App.1991); State Div. of Family Services v. J.H.T., 777 S.W.2d 244, 247 (Mo.App.1989). "Regardless of the form of the trial court's order of child support, there must be evidence in the record to support the order, consistent with Form 14." Umphenour v. Umphenour, 831 S.W.2d 764, 767 (Mo.App.1992). Form 14 permits a court in determining a spouse's potential income to "consider employment potential and probable earnings level based on the parent's recent work history, occupational qualifications, [and] prevailing job opportunities in the community." Form No. 14 "Directions for Completion of Form 14"; See also Garrison, 846 S.W.2d at 774.

In the present case, the proper circumstances clearly exist for imputing income to husband to determine his support obligation. Furthermore, the evidence presented supports the amount of income the court imputed to him. By failing to offer an explanation for his discharge, husband failed to sustain his burden of proving that his dismissal and subsequent decrease in income were involuntary. See Forhan v. Forhan, 693 S.W.2d 164, 166 (Mo.App.1985). The evidence indicates that husband has a college degree and some accounting experience and that he has a demonstrated earning capacity of $30,000 per year. Moreover, there was no evidence that his unemployment was not temporary. The court reasonably found that husband would be able to earn $30,000 if he were to put forth his best efforts to gain suitable employment and imputed this amount to him as income. See Stewart, 866 S.W.2d at 157; Foster, 844 S.W.2d at 562; Riaz v. Riaz, 789 S.W.2d 224, 228-29 (Mo.App.1990). This finding is supported by substantial evidence and is not an abuse of discretion.

Husband also objects to the imputation of $12,000 per year income to wife since she had been earning $36,000 a year prior to the separation. It is true that wife voluntarily reduced her income by resigning from her employment in St. Louis. However, contrary to husband, wife furnished an explanation and justification for this reduction in her income. She...