Kessinger v. Kessinger, s. 60550

• Decision Date: 21 April 1992
• Docket Number: 60605,Nos. 60550,s. 60550
• Citation: 829 S.W.2d 658
• Parties: Harold J. KESSINGER, Plaintiff/Appellant, v. Deanna S. KESSINGER, Defendant/Respondent. Deanna S. KESSINGER, Defendant/Appellant, v. Harold J. KESSINGER, Plaintiff/Respondent.
• Court: Missouri Court of Appeals

Page 658

829 S.W.2d 658

Harold J. KESSINGER, Plaintiff/Appellant, v. Deanna S. KESSINGER, Defendant/Respondent.

Deanna S. KESSINGER, Defendant/Appellant, v. Harold J. KESSINGER, Plaintiff/Respondent.

Nos. 60550, 60605.

Missouri Court of Appeals,

Eastern District,

Southern Division.

April 21, 1992.

John J. Oliver, Jr., Oliver, Oliver, Waltz & Cook, Cape Girardeau, for plaintiff/appellant.

Richard G. Steele, Christophe Crank, Dale Edward Gerecke, Finch, Bradshaw, Trom & Steele, Cape Girardeau, for defendant/respondent.

CRANE, Judge.

Both parties appeal an order of the trial court disposing of their separate motions to modify child custody and support and related motions. We find the trial court erred in calculating the modified amount of child support under Rule 88.01 and reverse and remand for recomputation of child support. We also reverse that portion of the trial court's order directing the mother to make certain statements to the parties' minor child. In all other respects the order of the trial court is affirmed.

Harold J. Kessinger [father] and Deanna S. Kessinger [mother] were previously married. Two children were born of the marriage, one of whom was still a minor at the time of the dissolution action and subsequent hearing. The marriage was dissolved June 27, 1989. Father was ordered to pay $483 per month child support. Pursuant to the Plan of Joint Custody, attached as an exhibit to the dissolution decree, mother was awarded primary physical custody of the child with reasonable rights of visitation and temporary physical custody to father, and both parties were awarded joint legal custody of the child.

After the decree was entered, father was not provided any visitation with or temporary custody of the minor child. Upon advice of his attorney, father stopped making his monthly child support payments after June, 1990. On July 26, 1990 father filed his Motion to Modify Decree of Dissolution and to Abate Child Support. On September 13, 1990, mother filed a reply to father's motion and a Countermotion to Modify Decree of Dissolution seeking to terminate the Plan of Joint Custody and for other relief.

The motions were heard on June 4, 1991. Evidence adduced at the hearing disclosed a substantial change of financial circumstances of the parties, the failure of father to receive any of the visitation or temporary periods of custody to which he was entitled under the decree, mother's role in destroying what had once been a strong relationship between father and the child, and the child's refusal to visit father.

On June 20, 1991, the trial court entered its Order denying father's motion to abate child support, awarding $5,313 in back child support, and reducing father's child support payments from $483 per month to $380 per month. The court denied mother's motion to terminate the Plan of Joint Custody. The court further ordered mother to explain to the child that the financial deprivations they suffered resulted from mother's decisions in managing her assets, that father was not obligated to make a house payment, and that father had not harassed or threatened mother.

Father asserts two grounds on appeal: First, that the court erred in not abating his child support obligation and second, that the court erred in the computation of his new child support obligation. Mother argues that the trial court erred in 1) reducing father's child support obligation; 2) not giving her interest on the back child support owed by father; 3) not terminating the Plan of Joint Custody; and 4) ordering her to make certain explanations to the child. We will examine these contentions in the order they have been raised.

Father's Appeal

Father first contends that the trial court erred in refusing to abate his child support obligation under § 452.340.6(1) RSMo (Cum.Supp.1989).

That subsection provides:

A court may abate, in whole or in part, any future obligation of support or may transfer the custody of one or more children if it finds:

(1) That a custodial parent has, without good cause, failed to provide visitation or temporary custody to the noncustodial parent pursuant to the terms of a decree of dissolution, legal separation or modifications thereof; and

(2) That the noncustodial parent is current in payment of all support obligations pursuant to the terms of a decree of dissolution, legal separation or modifications thereof. The court may also award reasonable attorney fees to the prevailing party.

Father filed his motion in July of 1990. That same month he stopped paying child support. In order to be eligible for abatement, a party must be current in all child support payments. § 452.340.6(2) RSMo (Cum.Supp.1989). Abatement is not self-executing. It can only take place upon a finding of a court that the statutory prerequisites have been met. Brandt v. Brandt, 794 S.W.2d 672, 675 (Mo.App.1990). If a party fails to comply with a provision of a decree, the obligation of the other party to make payments for support is not suspended. The party must instead move the court to grant an appropriate order. § 452.365 RSMo 1986. Father's failure to be current in payment of child support foreclosed him from abatement of child support under § 452.340.6. Father's first point is denied.

Father next asserts that the trial court erred in using his "gross receipts" instead of "gross income" and in failing to consider mother's income in calculating his modified child support obligation. The child support guidelines promulgated by the Missouri Supreme Court in Rule 88.01 and Civil Procedure Form 14 provide that the courts use Form 14 to calculate child support. See also § 452.340 RSMo (Cum.Supp.1989). These provisions create a rebuttable presumption that the amount of an award determined from the application of the child support guidelines [Form 14] is the correct amount of child support to be awarded. Rule 88.01(e); § 452.340.8 RSMo (Cum.Supp.1989). The presumption may be rebutted by a written or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case.

Father contends that the trial court erred in its use of Form 14 in two ways. ¹ First, he argues that the trial court incorrectly used his "gross receipts" instead of "gross income" in determining his new support obligation. From the evidence at the hearing, the trial court determined that father would have gross receipts of $30,000 for 1991. Treating that $30,000 as "gross income" under the child support guidelines, the court determined that father had a child support obligation of $380 per month. The court specifically declined to adopt father's figures for 1990 which showed a net income of approximately $8,600 after adjustment for non-reoccurring expenses.

Line 1 of Form 14 calls for one-twelfth of each parent's yearly "gross income." "Gross income" from self-employment is defined by the directions for Form 14 as:

"gross receipts minus ordinary and necessary expenses required to produce income. The court may exclude from ordinary and necessary expenses amounts for depreciation expenses, investments tax credits, and other noncash reductions of gross receipts.

While the trial court was entitled to look at 1991 figures instead of 1990 figures, if it found those figures to be a more accurate predictor of income, the court was required to deduct ordinary and necessary expenses to arrive at gross income. Its use of gross receipts as gross income was error.

Father also argues that the trial court erred in not taking mother's income into account when it made the child support determination. The court found mother had income of $16,800 in 1990. However, the court did not consider any income of mother in calculating father's support obligation. Form 14 specifically calls for the income of the custodial parent to be taken into account and each parent's proportionate share of combined income to be determined in order to calculate each parent's child support obligation. Its failure to do so is error.

We remand the calculation of the modified child support amount to the trial court for recalculation.

Mother's Appeal

For her first point mother argues that the trial court erred in finding that a substantial and continuing change of circumstances existed which warranted the reduction of husband's child support obligation.

Father testified that his income was drastically reduced when he moved his business to Carthage, Missouri. He testified his move was not made with the intention of reducing his child support obligation, but was caused by his desire not to live in the same town as mother because of mother's conduct, which had included filing a groundless ex parte order against him. He had expected to have the same earnings in Carthage as he had in Cape Girardeau, but his income was reduced as a result of changes in insurance deductions as well as a lower office visit charge for the area. Husband's gross receipts dropped from $10,000 to $12,000 per month to $2,500 per month resulting in a net annual income of $8,600. The trial court found father's move was made in good faith in response to circumstances created by mother, and not to reduce his child support obligation. The court also found that mother's income was twice what she claimed she would receive at the time of the divorce. The change in father's circumstances resulted in more than a 20% decrease in his child support obligation, which constitutes a prima facie showing of a change of circumstances so substantial and continuing as to make the present terms unreasonable. § 452.370.1 RSMo (Cum.Supp.1990). Its finding of a substantial and continuing change of circumstances was...