Holsman v. Holsman
| Decision Date | 17 July 2001 |
| Citation | 49 S.W.3d 795 |
| Parties | (Mo.App. S.D. 2001) Deborah J. Holsman, Appellant/Respondent v. Michael E. Holsman, Respondent/Appellant. WD58567 & WD58631 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Cass County, Hon. Mary Ellen Trimiar Young
Counsel for Appellant: Elvin S. Douglas, Jr.
Counsel for Respondent: John K. Allinder
Opinion Summary: The marriage of Deborah J. Holsman and Michael E. Holsman was dissolved on January 28, 2000.At the time of dissolution, the trial court distributed the marital and non-marital property of the parties and provided a plan for the custody and visitation of the couple's two minor children.Both parties appeal the trial court's determination.
Division Two holds: (1) The judgment of the trial court was inconsistent in that it adopted one presumed child support amount in its judgment and a different presumed child support amount in its parenting plan.(2) Placing a workers' compensation award in a joint savings account caused that property to become marital property absent any evidence to the contrary.(3) The record was incomplete as to whether $21,000 awarded to Mrs. Holsman from a savings account existed at the time of the dissolution hearing.
Deborah J. Holsman(Wife) and Michael E. Holsman(Husband) were married on March 20, 1983.There were two children born of the marriage, Ryan, born February 20, 1989, and Jessica, born September 18, 1991.The parties were separated in late December 1997, and Wife filed a petition for dissolution of marriage on February 5, 1998.A hearing was held before the trial court on May 19, 1999, August 5, 1999, and October 7, 1999.The trial court dissolved the marriage on January 28, 2000, distributed marital and non-marital property to the parties, and provided a plan for the custody and visitation of the minor children.Both parties appeal the trial court's determination.
Wife presents three points on appeal and Husband presents one point.First, Wife contends the trial court erred in entering a judgment with inconsistent and conflicting amounts of child support contained therein.Secondly, she argues the trial court erred in awarding her $21,000 from a savings account without entering a corresponding judgment allowing her to enforce the award.And finally, Wife argues that the trial court erred in assigning Husband the second mortgage on the marital home without entering a judgment in favor of Wife allowing her to enforce the debt assignment.Husband's sole point on appeal alleges the trial court erred in finding that his workers' compensation award for permanent partial disability was marital property.
Our review of a judge tried case is governed by Murphy v. Carron, 536 S.W.2d 30(Mo. banc 1976).Beckwith v. Giles, 32 S.W.3d 659, 662(Mo. App. W.D.2000).Under this standard, we will affirm the judgment of the trial court unless there is no substantial evidence to support it, the judgment is against the weight of the evidence, or the court erroneously declares or applies the law.Id.
In Wife's first point on appeal, she maintains the terms of the judgment are inconsistent regarding the amount of money Husband is required to pay to Wife for child support.She argues the judgment is internally inconsistent in that in one place it adopted the presumed child support amount (PCSA) from Husband's Form 14 and in another place it adopted the PCSA from Wife's Form 14.Husband suggests that there is no inconsistency in the judgment.He argues it is clear that the trial court accepted his Form 14 and Wife's parenting plan but failed to delete Wife's proposed child support amount.He also argues that the judgment ordered the parties to comply with the custody and visitation provisions of the plan, not the child support provision.
The trial court, in its judgment, ordered Husband to pay "child support to [Wife] for the minor children at the rate of $734.00 per month, in accordance with [Husband's] Form 14[.]"1The court further ordered "that the custody of the children, visitation and other responsibilities of the parties shall be in accordance with the parenting plan adopted and ordered herein, and identified as Schedule A hereto."The parenting plan adopted by the court provides for a different child support amount:
[t]he presumed correct child support, as calculated by Petitioner pursuant to Section 452.340(8), RSMo., Rule 88.01, and Form 14, is $805 per month, and after consideration of all relevant factors pursuant to Section 452.340(8), andRule 88.01, is not rebutted as being unjust or inappropriate.The Circuit Court of Cass County, Missouri, is appointed trustee for said child support payments.Respondent is ordered to execute an immediate income assignment for same.
A trial court is required to set forth a parenting plan when it makes a determination as to child custody:
Any judgment providing for custody shall include a specific written parenting plan setting forth the terms of such parenting plan arrangements specified in subsection 7 of section 452.310.Such plan may be a parenting plan submitted by the parties pursuant to section 452.310 or, in the absence thereof, a plan determined by the court, but in all cases, the custody plan approved and ordered by the court shall be in the court's discretion and shall be in the best interest of the child.
Section 452.375.9.2Parenting plans must set forth "[t]he suggested amount of child support to be paid by each party[.]"section 452.310.7(3)(a).Because child support is required to be in the parenting plan and a parenting plan is required for any custody determination, we cannot agree with Husband's contention that the parties were not required to adhere to the child support figures contained in the parenting plan.
The parenting plan was incorporated by reference into the judgment, thus bringing all provisions of the parenting plan into the judgment.Moreover, the court specifically provided in the judgment "that the custody of the children, visitation and other responsibilities of the parties shall be in accordance with the parenting plan adopted and ordered herein, and identified as Schedule A hereto."(emphasis added)."'The general rules of construction for written instruments are used to construe court judgments.'"American Family Mut. Ins. Co. v. Hart, 41 S.W.3d 504, 509(Mo. App. W.D.2000)(quotingDover v. Dover, 930 S.W.2d 491, 495(Mo. App. W.D.1996))."In construing a court's judgment, the words and clauses used in a judgment are to be construed according to their natural and legal import."Id."'Our task is to ascertain the intention of the [circuit] court in entering the order.'"Id.(quotingJacobs v. Georgiou, 922 S.W.2d 765, 769(Mo. App. E.D.1996)).The judgment entered by the circuit court in this dissolution action provided direction to the parties to the parenting plan as to matters of child custody, visitation, and other responsibilities.Child support was certainly one of the "other responsibilities" contemplated by the court in the parenting plan it adopted.
With this said, we find that the judgment of the trial court is inconsistent in that it requires Husband to pay two different amounts of child support, which are both supported by the evidence presented at the dissolution hearing.Because of this inconsistency, we must remand the cause to the trial court for a determination of the proper child support amount.
Before reaching Wife's second point, which challenges the construction of the trial court's award of $21,000 to Wife, it is necessary for us to discuss Husband's single point on appeal, which challenges the trial court's characterization of the $21,000 award as marital property.Husband asserts that the trial court erred in finding that his workers' compensation award was marital property.Husband was awarded a workers' compensation settlement for an accident that occurred in 1994.While working construction in 1994, Husband fell thirty-five feet, injuring his shoulder, feet and knees.His injuries resulted in his permanent partial disability and he was awarded in excess of $21,000 for those injuries.3...
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