Keller v. Keller

• Decision Date: 19 March 2007
• Docket Number: No. 27260.,27260.
• Citation: Keller v. Keller, 224 S.W.3d 73 (Mo. App. 2007)
• Parties: Linda Susan KELLER, Respondent, v. Karl Wayne KELLER, Appellant.
• Court: Missouri Court of Appeals

224 S.W.3d 73

Linda Susan KELLER, Respondent, v.Karl Wayne KELLER, Appellant.

No. 27260.

Missouri Court of Appeals, Southern District, Division One.

March 19, 2007.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 10, 2007.

Application for Transfer Denied June 26, 2007.

Devon F. Sherwood, Springfield, for Appellant.

J. Matthew Miller, Baird, Lightner, Millsap & Harpool, Springfield, for Respondent.

JOHN E. PARRISH, Judge.

This is the appeal of a modification of dissolution of marriage judgment.The modification changed the child custody provisions in the dissolution judgment and increased the amount of child support Karl W. Keller(father) was to pay Linda Susan Keller(mother).The modification judgment ordered father to pay mother's attorney fees, together with other costs for psychological evaluation preparatory to the evidentiary hearing and guardian ad litem fees.The judgment also changed the means by which college expenses father was ordered to pay would be calculated.Judgment was also entered for an amount the motion court found mother had incurred for expenses the dissolution judgment ordered father to pay.This court affirms.

The modification judgment increased the amount of child support father was to pay from $1,750 per month to $6,035.Mother was awarded sole legal and physical custody of the parties' two children.The parties previously had joint legal and physical custody with mother being the primary physical custodian and father having specified periods of physical custody.Per the modification judgment, father was not allowed direct contact with either child until he complied with § 452.400.¹Father was ordered to pay $51,664.79 to mother's attorneys.

Mother was awarded judgment in the amount of $1,705 as reimbursement for a psychological evaluation and costs incurred by the examining psychologist in preparation for and attendance at trial, and judgment in the amount of $28,746.99 for unreimbursed expenses for the children that the dissolution judgment ordered father to pay.The expenses father would be required to pay for each child's college costs were identified as "the cost of tuition, fees, books, and dormitory costs for room and board at Drury University, Springfield, Missouri, regardless of what Institution the child attends."The standard had previously been the costs at Southwest Missouri State University.Father was ordered to pay guardian ad litem fees in the amount of $3,251.75.

Father presents four points on appeal.He contends the trial court erred in modifying child support (Points I and III); child custody (Point II); and the award of mother's attorney fees (Point IV).

Trial of a motion to modify a dissolution judgment is without a jury; thus, appellate review is undertaken in accordance with Rule 84.13(d).

[T]his court must affirm the trial court's judgment unless it is not supported by substantial evidence, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law.[Bunch v. Bunch,746 S.W.2d 634, 635(Mo.App.1988) ].The trial court is in the best position to judge the credibility of witnesses.Weir v. Weir,748 S.W.2d 190, 191(Mo.App. E.D.1988).Deference is accorded the trial judge even if there is evidence which might support a different conclusion.Hughes v. Hughes,761 S.W.2d 274, 276(Mo.App. E.D.1988).

Reese v. Reese,885 S.W.2d 39, 40(Mo.App.1994).

Child Support

The motion court made the following finding with regard to child support:

The parties have both submitted Form 14's.The Court rejects [father's] Form 14, as [father's] income does not reflect significant employment related financial compensation.The Court finds that [mother's] calculation of [father's] monthly gross income is persuasive and the explanation and analysis of the derivation of [father's] monthly gross income is support [sic] by substantial evidence and the Court finds that [father's] monthly gross income for purposes of calculating child support should be $45,459.00.The income and benefits derive [sic] from General Pet, Inc., the Court considers is income for purposes of computing this child support as it is a substantial financial benefit that is available to [father] that does have a positive impact on his ability to support his children.The Court adopts [mother's] exhibit "3A'[sic] and finds the presumed amount of support is $6,035 for two children.The Court, however, rejects [mother's] Exhibit "3B", a calculation for one child and the Court finds mathematical errors on line 6D and E, pursuant to the numbers presented on attachment B and C of that Exhibit and the Court calculates its own Form 14 and after considering all relevant factors pursuant to 452.340 RSMo., 2002, Supreme Court Rule 88.01 and Civil Procedure Form 14 and finds the presumed amount of support for one child, is $4,558.00....The Court finds that an application of the current financial circumstances of the parties to the Form 14 calculation worksheets does result in a change of child support of the presumed amount by more than 20% and therefore the Court finds that [mother's] request for a modification of child support should be sustained.[Emphasis added.]

Point III is directed to the finding that the current amount of presumed child support exceeded the amount of child support previously awarded by more than 20%.Point III argues that the motion court erred in modifying child support on the basis of its finding that there was an increase of presumed child support of more than 20% over the amount of child support previously awarded because "the original support amount was not based upon the presumed amount pursuant to the child support guidelines as required by section 452.370.1 R.S.Mo."

The record before this court is unclear as to whether the child support the dissolution judgment awarded was the presumed amount based on a Form 14 calculation.Neither the dissolution judgment nor the Marital Settlement Agreement reference a Form 14 calculation.Mother, in her respondent's brief, however, acknowledged that the amount of child support awarded differed from the presumed amount pursuant to a Form 14 calculation.This court, therefore, accepts as fact that the original amount of child support was not based on the presumed amount calculated pursuant to child support guidelines.²A reliance on the amount of presumed child support based on present calculations increasing more than 20% would, therefore, be inapplicable for purposes of establishing a change of circumstances.Eaton v. Bell,127 S.W.3d 690, 697(Mo.App.2004).("The twenty-percent provision is not applicable ... because the existing child support amount was not based upon the presumed amount under the child support guidelines.")

Wife correctly suggests, however, that notwithstanding the inapplicability of the 20% change between the existing child support and what would now be the presumed child support for purposes of establishing a prima facie change of circumstances, other evidence of changed circumstances so substantial and continuing may support modification of child support.She contends such evidence was presented; that, for that reason, father was not prejudiced by the motion court's modification of child support.

Eaton, supra, explains that when the 20% provision is not applicable "a substantial and continuing change in circumstances may be established in other ways"; that "[a] change in the parties' financial circumstances or in the children's needs may evidence a showing of substantial and continuing change."127 S.W.3d at 697.When a court incorrectly relies on a calculation based on the 20% change of presumed child support, there is no prejudice when other evidence of substantial and continuing change circumstances demonstrates the original order of support is unreasonable.McMickle v. McMickle,862 S.W.2d 477, 481(Mo.App.1993).Mother alleged that there were substantial and continuing changes of circumstance so that the existing child support was unreasonable.

The dissolution judgment ordered father to pay mother child support in the amount of $1,750 per month, that he maintain a life insurance policy for the benefit of the children, and pay the cost of each child's college expenses.Father was also to maintain medical and dental insurance for each child and was to pay all medical, dental, orthodontic, counseling, pharmaceutical, and eye care expenses not covered by insurance, including deductibles and co-payments, and pay all costs of the children's private education at Greenwood Laboratory School and costs of tutoring at Bellwether Learning Center.

Evidence was presented that father had failed to pay the children's medical and educational expenses.There was evidence that the children's tutoring at Bellwether Learning Center had been discontinued because father failed to pay the required costs.Mother was awarded judgment in the amount of $28,746.99 for expenses father was ordered to pay, but had not.A non-custodial parent's failure to pay court-ordered child support expenses is evidence of a substantial and continuing change of circumstances that may warrant modification of that parent's child support obligation.Welker v. Welker,902 S.W.2d 865, 867(Mo.App.1995);Bellis v. Bellis,664 S.W.2d 12, 14(Mo.App.1983);Williams v. Williams,542 S.W.2d 563, 566(Mo.App.1976).

Mother also asserted as a basis for change of circumstances that the children's general living expenses had increased.The children were ages 12 and 9 at the time of the dissolution judgment.They were ages 18 and 15 at the time of the modification judgment.A substantial and continuing change may be shown as a result of increased living expenses. "which occur with the growth and maturing of children."Selby v. Smith,193 S.W.3d 819, 825(Mo.App.2006).See alsoEaton,127 S.W.3d at 697.

There was evidence that the children's extracurricular activities had increased due to their...