Jaco v. Jaco

• Decision Date: 18 April 2017
• Docket Number: WD 79972
• Citation: 516 S.W.3d 429
• Parties: Jeriane M. JACO, Respondent, v. Brian L. JACO, Appellant.
• Court: Missouri Court of Appeals

516 S.W.3d 429

Jeriane M. JACO, Respondent,
v.
Brian L. JACO, Appellant.

WD 79972

Missouri Court of Appeals, Western District.

April 18, 2017

Randall O. Barnes, Jefferson City, MO, for Respondent

Sara Catherine Michael, Jefferson City, MO, for Appellant.

Before Division Two: Cynthia L. Martin, Presiding Judge, Lisa White Hardwick, Judge and Alok Ahuja, Judge

Cynthia L. Martin, Judge

Brian Jaco ("Father") appeals from a judgment denying his motion to modify the child support provisions of a dissolution decree. We affirm.

Factual and Procedural Background

The marriage between Father and Jeriane Jaco ("Mother") was dissolved by a dissolution decree entered in December 2010 ("Dissolution Decree"). The Dissolution Decree awarded Father and Mother joint physical and legal custody of their minor child. The Dissolution Decree approved and incorporated the terms of a separation agreement. The incorporated separation agreement reflected Father and Mother's agreement that the Form 14 presumed child support amount was unjust and inappropriate, giving due consideration to all relevant factors, and that neither party should be obligated to pay child support to the other. The incorporated separation agreement also reflected Father and Mother's agreement to equally divide uncovered medical, educational, extraordinary, and childcare expenses. The Dissolution Decree thus awarded no child support to either party, and ordered Mother and Father to bear equal responsibility for the child's uncovered expenses. Mother's gross monthly income at the time of the Dissolution Decree was $3,476.00, while Father's was $2,305.00.¹

Father filed a motion to modify the Dissolution Decree in December 2015 ("Motion"). Father's Motion sought to modify both parenting time and the child support provisions of the Dissolution Decree. Father's Motion alleged that modification of the child support provisions was necessary because of a substantial and continuing change of circumstances that rendered the original support provisions unreasonable. Specifically, Father's Motion alleged that the "relative income of the parties ha[s] substantially changed since [the Dissolution

516 S.W.3d 431

Decree] and that the cost of raising [the child] has substantially increased since [the Dissolution Decree]." After a bench trial, the trial court issued its judgment and decree of modification ("Judgment").

The Judgment found "a continuing change of circumstances sufficient to modify ... the custody schedule" previously ordered in the Dissolution Decree. The Judgment ordered that the parties would continue to have joint legal and physical custody of the child, but modified the parenting plan's custody schedule.² Neither Father nor Mother have appealed the Judgment's modification of the custody schedule.

With respect to Father's request to modify the child support provisions in the Dissolution Decree, the Judgment found that "both parties are capable of contributing to the support of the minor child." At the time of the hearing on Father's Motion, Mother's gross monthly income was $5,680.00, and Father's gross monthly income was $2,417.00. In addition, Father had remarried, and his new spouse ("Stepmother") had a gross monthly income of $7,083.34. Mother was engaged and living with her fiance, whose gross monthly income was $3,400.00. Father's Income and Expense Statement assumed that Stepmother contributed to pay 50% of household expenses. Mother's Income and Expense Statement assumed her fiancé contributed to pay 40% of her household expenses.

The trial court calculated a presumed child support amount pursuant to Supreme Court Rule 88.01, Form 14, and section 452.340. The presumed child support amount would have required Mother to pay Father $401.00 per month. However, the trial court found the presumed child support amount to have been rebutted as unjust and inappropriate. The trial court reasoned that in light of Stepmother's income, Father "is not in need of child support." The trial court also found that, in light of Stepmother's income, Father is capable of contributing equally to uncovered medical expenses, extracurricular expenses, and extraordinary expenses. The trial court denied Father's request to modify the Dissolution Decree's child support provisions.³

516 S.W.3d 432

Father filed a motion for new trial, for reconsideration, or to amend the Judgment, which the trial court denied. This timely appeal follows.

Standard of Review

Because this is a court tried case, "the judgment of the trial court will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law." Blue Ridge Bank & Trust Co. v. Trosen (Trosen II ), 309 S.W.3d 812, 815 (Mo. App. W.D. 2010) (quoting McNabb v. Barrett , 257 S.W.3d 166, 169 (Mo. App. W.D. 2008) ). "We view the evidence, and permissible inferences therefrom, in the light most favorable to the trial court's judgment, and we disregard all contrary evidence and inferences." Id. (quoting Brown v. Mickelson , 220 S.W.3d 442, 447 (Mo. App. W.D. 2007) ). "We defer to the trial court's factual findings, giving due regard to the trial court's opportunity to judge the credibility of the witnesses." Id. (quoting Brown , 220 S.W.3d at 447 )).

Because we are "primarily concerned with the correctness of the trial court's result," we will affirm the trial court's judgment "if cognizable under any theory, regardless of whether the reasons advanced by the trial court are wrong or not sufficient." Id. (quoting Blue Ridge Bank & Trust Co. v. Trosen (Trosen I ), 221 S.W.3d 451, 457 (Mo. App. W.D. 2007) ).

Analysis

Father asserts two points on appeal. In his first point, Father argues that the trial court erred in considering Stepmother's income when ordering that no child support be paid because pursuant to section 453.400 and Rule 88, a stepparent's income should not ameliorate a parent's child support obligation. Father's second point claims the trial court erred in equally dividing uncovered expenses of the minor child because the evidence did not support that division as just and fair in light of the parents' income disparity.

Point One

Father's first point on appeal argues that because the trial court relied on Stepmother's income to refuse to award him child support, the trial court violated section 453.400.1. Section 453.400.1 provides:

A stepparent shall support his or her stepchild to the same extent that a natural or adoptive parent is required to support his or her child so long as the stepchild is living in the same home as the stepparent. However, nothing in this section shall be construed as abrogating or in any way diminishing the duty a parent otherwise would have to provide child support, and no court shall consider the income of a stepparent, or the amount actually provided for a stepchild by a stepparent, in determining the amount of child support to be paid by a natural or adoptive parent.

Father's argument is unavailing.

Father's point on appeal ignores that notwithstanding section 453.400.1, a trial court is required by section 452.370.1 to consider both parties' financial resources, including a co-habitant's contribution to household expenses, when considering a motion to modify an existing child support award. Section 452.370.1 provides, in pertinent part:

516 S.W.3d 433

[T]he provisions of any judgment respecting maintenance or support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable. In a proceeding for modification of any child support or maintenance judgment, the court, in determining whether or not a substantial change in circumstances has occurred, shall consider all financial resources of both parties, including the extent to which the reasonable expenses of either party are, or should be, shared by a spouse or other person with whom he or she cohabits, and the earning capacity of a party who is not employed.

Section 452.370.1 thus prohibits a trial court from modifying existing child support provisions unless a substantial and continuing change in circumstances sufficient to make the existing terms unreasonable is established. And in assessing whether this burden has been sustained, the trial court "shall consider all financial resources of both parties, including the extent to which the reasonable expenses of either party are, or should be, shared by a spouse." Id. (emphasis added). "The party seeking modification has the burden to establish that the terms of the original decree have become unreasonable." In re Marriage of Lindhorst , 347 S.W.3d 474, 476 (Mo. banc 2011).

Here, Father alleged a substantial and continuing change of circumstances rendering the original child support provisions unreasonable based on the relative change in Father and Mother's gross income since entry of the Dissolution Decree. Father's Motion alleged that Father's gross monthly income was now $2,417.00, while Mother's gross monthly income was now $5,680.00. Father's Motion...