Jones v. Jones

• Decision Date: 27 January 1998
• Docket Number: No. WD,WD
• Citation: 958 S.W.2d 607
• Parties: Elda J. JONES, Appellant, v. Dennis F. JONES, Respondent. 53579.
• Court: Missouri Court of Appeals

Page 607

958 S.W.2d 607

Elda J. JONES, Appellant, v. Dennis F. JONES, Respondent.

No. WD 53579.

Missouri Court of Appeals Western District.

Submitted Oct. 22, 1997.

Decided Jan. 27, 1998.

W. Douglas Thomson, Maryville, for appellant.

Dennis F. Jones, pro se.

Before ULRICH, C.J., P.J., and SMART and ELLIS, JJ.

PER CURIAM.

Elda J. Jones and Dennis F. Jones were married for approximately twenty-four years. Elda is appealing the judgment entered in the action dissolving that marriage. She claims that the trial court erred in failing to impute income to Dennis in calculating and awarding child support. She also contends the court erred in establishing an inappropriate benchmark for college education costs, in failing to consider Dennis's squandering of marital assets, and in setting aside a $7,044.00 loan as Elda's nonmarital property. The judgment of the trial court is affirmed.

Elda J. Jones and Dennis F. Jones were married October 20, 1972 in Denver, Colorado. Three children were born of the marriage: Gregory, born July 7, 1976; Gretchen, born January 23, 1978; and Jenny, born January 4, 1980. Until December, 1995, the couple owned a hardware store in Idaho Falls, Idaho. The store opened in 1981. Before opening the hardware store, Dennis worked as a bank auditor, and as a loan officer. He also had taught banking at the University of Alaska.

As of June, 1993, the hardware store was worth approximately $240,000.00. Shortly thereafter, the business began to decline. Dennis attributed the decline of the store to the fact that the area's largest employer laid off over 6000 people. He also blamed the fact that a 120,000 foot home center opened a half mile from the hardware store, providing competition.

In August 1994, the family moved back to Missouri because Elda's mother, who lived in Missouri, had become ill. Dennis stayed in Idaho to run the business, returning to the family every six weeks or so. Dennis testified that from the time that the family moved to Missouri until the time that Elda filed for divorce on September 13, 1995, he provided at least $18,000.00 in support for the family's needs. He testified that he made car trips between Idaho and Missouri to bring the family's belongings to Missouri during this time. Dennis stated that he was not able to mind the business as much because of the time that he was spending in Missouri. Dennis tried to find a buyer for the business, but was unsuccessful. Dennis testified he was sinking deep into debt, while trying to send money to his family in Missouri. He also contacted a liquidating company but concluded that he would not get a great deal for the business if it were liquidated, and that there would still be a problem with his lease. He testified that he was working a seven-day, twelve-hour-a-day week. Finally, he said, he could not take the pressure any longer. He wrote letters to the bank and to his creditors to take the business. The Jones's home and airplane hangar were sold, and proceeds were applied to the couple's debts.

The two oldest children were both in college at the time of trial. Greg attends Webster University, a private college in St. Louis, Missouri. Although Greg had received grants to go to college and earned money for tuition through a work-study program, Elda testified that her out-of-pocket expense for Greg's education for the school year was $6,200.00. At the time of the trial, Gretchen was entering school as a freshman at Missouri Western on a full scholarship. The youngest child, Jenny, was a junior in high school. Dennis had not paid for any of the children's educational expenses. He did not begin to pay child support until ordered to by the trial court.

Dennis testified that prior to opening the store, he had always earned between $20,000.00 to $30,000.00 per year in his employment endeavors. At the time of trial he was earning very little. Dennis had moved to Oklahoma City, Oklahoma. When he arrived in Oklahoma he went to work for Home Depot, but quit because he could not do the work because of an incisional hernia. He decided to get a real estate license. Dennis is in the process of trying to build up a business in real estate in Oklahoma City. He is also working part time for Sears at a sales job paying minimum wage plus commission. His monthly income at the time of trial was about $500.00 per month. Dennis testified that he did not have any money and was living off of his credit cards.

Elda testified that from the time that the petition was filed until June, 1996, Dennis had not paid anything to support the children. She stated that she had borrowed $7,044.00 from her sister. She testified that some of the money was used to pay utilities and for payments on a life insurance policy associated with the loan on the Idaho business. The rest of the money was used to pay for expenses related to the children, including college expenses.

The trial court held two hearings on the matter. The first hearing was held on June 7, 1996. The second hearing was held after Elda filed a motion to amend the judgment, on September 25, 1996. The trial court entered an amended motion on October 1, 1996. The order provided, inter alia, that pursuant to Rule 88.01 and Form 14, Dennis' support payment would amount to $240.00 per month. The court determined the appropriate monthly gross income for Dennis was $750.00 per month. The court used the figure of $1,550.00 per month for Elda. The trial court also ordered that Dennis and Elda would each be required to pay one-half of the children's college expenses, pursuant to the following:

6. After considering all relevant factors, the parties shall each pay 50% of the cost each year for the minor children to attend a post-secondary college, university or vocational/technical school, state or private, subject to the following limitations:

(a) "Costs" shall include tuition, fees, books, and dormitory costs for room and board. It does not include room and board while residing with either parent.

(b) The 50% each party is to pay shall be the actual cost to the child, i.e., if the child receives a scholarship or other aid which reduces the cost, the "cost" does not include the amount of such scholarship or aid. For this purpose, loans to the student shall not be considered a "scholarship or other aid."

(c) The child must carry at least a minimum number of credit hours each semester which, according to the institution the child attends, constitutes a full load.

(d) The maximum cost which each party shall be responsible for in any given school year will be 50% of the then cost for tuition, fees, books and dormitory costs for room and board at Missouri Western State College, St. Joseph, Mo, regardless of what institution the child attends.

(e) The respondent/petitioner shall not be responsible for paying for more than eight semesters at a college or university.

(f) The petitioner/respondent shall pay the aforementioned sums directly to the minor child at such time as respondent/petitioner receives statements therefore.

(g) This provision relating to post-secondary costs shall apply to each of the three children.

Elda filed another motion for new trial or, in the alternative, to amend the judgment. A hearing on that motion was held November 13, 1996. At that hearing, the trial court considered the issues that Elda has raised in this appeal and denied relief. Elda appeals.

We must sustain the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Deference is given to the trial court's determinations as to credibility. Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991). We view the evidence and inferences flowing therefrom in the light most favorable to the decree. Id. Cases involving issues of imputation of income necessarily require the exercise of the sound discretion of the trial court and cannot be considered a mechanical process. Absent a manifest abuse of discretion, we will not substitute our judgment for that of the trial court. Elliott v. Elliott, 920 S.W.2d 570, 574 (Mo.App.1996). We will set aside the judgment of the trial court only upon the firm belief that it is wrong. DeCapo v. DeCapo, 915 S.W.2d 343, 346 (Mo.App.1996).

IMPUTATION OF INCOME

In her first point, Elda contends that the trial court erred in failing to impute significant income to Dennis for the purpose of calculating child support. She maintains that the evidence shows that Dennis could earn a substantial wage in several fields but chose not to use his existing talents in the most productive way. She argues that the trial court's decision was against the weight of the evidence. She points out that Dennis had fourteen years in the hardware business and had experience in banking. She claims that his new venture of selling real estate and his part-time work at Sears indicate that he is not making his best effort to become adequately employed. She also contends that Dennis' testimony that his real estate business is "coming" and that he feels "real positive about it" serves as evidence that his present low income is merely temporary. Elda claims that the trial court should have imputed future earnings to Dennis.

Where one of the parties is not employed or is underemployed, the trial court may attribute income to that party in the context of a Form 14 calculation depending on the factual circumstances. Cuda v. Cuda, 906 S.W.2d 757, 761 (Mo.App.1995). The issue is whether the evidence supports the trial court's action in the calculation of child support pursuant to Form 14.

In determining the appropriate calculation as to an issue of imputation of income, the court applies the considerations and procedures which have been stated as follows:

In determining the financial condition of the father at the time an award is made, consideration may be given...