Kohl v. Kohl

• Decision Date: 02 April 2013
• Docket Number: No. WD 74592.,WD 74592.
• Citation: 397 S.W.3d 510
• Parties: John M. KOHL, Appellant, v. Jill M. KOHL, Respondent.
• Court: Missouri Court of Appeals

397 S.W.3d 510

John M. KOHL, Appellant,

v.Jill M. KOHL, Respondent.

No. WD 74592.

Missouri Court of Appeals, Western District.

April 2, 2013.

Paul T. Graham, Jefferson City, for Appellant.

Daniel E. Hunt, for Respondent.

Before Division Two: JOSEPH M. ELLIS, Presiding Judge, ALOK AHUJA, Judge and MARK D. PFEIFFER, Judge.

JOSEPH M. ELLIS, Judge.

John Kohl (“Father”) appeals from a judgment entered in the Circuit Court of Cole County granting Jill Kohl's (“Mother”) motion to modify child support. For the following reasons, the judgment is reversed and remanded for further proceedings.

Father and Mother were married on November 21, 1992. Four children were born of the marriage.

On May 26, 2005, approving and incorporating a separation agreement between the parties, the circuit court entered its judgment dissolving the marriage between Father and Mother. The court awarded Father and Mother joint legal and physical custody of the four minor children. In the settlement agreement, the parties expressly agreed that “the presumed child support amount, as calculated pursuant to Rule 88.01, Section 452.340, and Form 14 is unjust and inappropriate.” Father was ordered to pay $565.00 per month in child support and awarded two of the four available tax dependency exemptions.¹

On December 21, 2006, again pursuant to an agreement between Father and Mother, the court entered a judgment increasing Father's child support obligation to $1,309.00 per month. The parties submitted a jointly prepared Form 14, which they agreed was accurate and “represents an amount of child support that is just, reasonable and appropriate under the circumstances.” The Form 14 submitted by the parties reflected that Mother's gross income was $1,625.00 per month and Father's gross income was $14,166.00 per month. Father received a Line 11 credit of 33 percent for overnight visitation. The trial court ordered that Father's child support be increased to $1,309.00 per month in accordance with the stipulated Form 14. In all other respects, the decree of dissolution was left in full force and effect.

Subsequently, due to Father's work demands, Mother agreed to quit a second job she had on Sunday nights in order to watch the children, and Father agreed to pay as additional child support an amount equal to the income Mother derived from that job, approximately $150.00 per month. Accordingly, Father began paying Mother $1,450.00 per month. Father also voluntarily paid for several miscellaneous expenses incurred on behalf of the children including school lunches, karate lessons, tutoring, and summer camps.

On August 27, 2010, Mother filed a motion to again modify child support. She claimed that circumstances had changed in that (1) the parties' incomes had changed to where there would be more than a twenty percent change in child support, (2) Father was not exercising his Sunday overnight visitation, (3) business trips caused Father to miss approximately three weeks per year of his visitation time, and (4) more than three years had passed since the last modification.

Following an evidentiary hearing, on July 13, 2011, the circuit court entered its judgment finding that substantial and continuing change in circumstances had occurred including, but not limited to: (1) an agreement by the parties to exercise a “visitation” schedule different than that ordered by the court, (2) a change in the incomes of the parties giving rise to a change of more than twenty percent in the presumed child support amount, and (3) the passage of more than three years since the last modification. The circuit court averaged Father's gross yearly income from the previous four years and thereby determined that his monthly gross income, including bonuses, was $16,143.00. The court found that Mother's “gross wage of $2,073.00 per month most accurately reflects [Mother]'s grossly [sic] month [sic] income taking into account all sources of income including but not limited to bonuses and interest income.” The court found that Father was not entitled to a line 11 credit for overnight visitation because Mother's gross income fell below the $2,100.00 threshold for a parent with four children. Based on those findings, the court adopted a Form 14, prepared by Mother's attorney subsequent to trial, calculating Father's presumed child support to be $2,647 per month and ordered Father to pay that amount retroactive to September 1, 2010. The court also altered the previous division of the dependency tax exemptions to award Mother all four and ordered Father to pay Mother $2,000.00 in attorney's fees. Father brings eight points on appeal, several of which are interrelated.

“The standard of review in a court tried case, including one pertaining to modification of child support, is set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).” Cross v. Cross, 318 S.W.3d 187, 189 (Mo.App. W.D.2010) (internal quotation omitted). “We will affirm the judgment unless there is no substantial evidence to support the trial court's decision, the decision is against the weight of the evidence, or the trial court's decision erroneously declares or applies the law.” Wightman v. Wightman, 295 S.W.3d 183, 187 (Mo.App. E.D.2009). “We view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict and we disregard all contrary evidence.” Id.

In his first point, Father claims that the trial court erred in modifying child support based upon the twenty-percent standard of § 452.370 because that standard does not apply when the previous judgment was based upon an agreement that deviated from the child support guidelines. He argues that the previous judgment deviated from the child support guidelines by allocating him two of the four child dependency exemptions.

“Child support remains subject to modification even though the original decree incorporated a settlement agreement between the parties.” In re Marriage of Wilson, 181 S.W.3d 575, 583 (Mo.App. S.D.2005). “Pursuant to Section 452.370.1, in order to modify a child support award, there must be a showing of changed circumstances so substantial and continuing as to make the terms of the support award unreasonable.” Id. “The parent seeking the modification has the burden of proving a substantial and continuing change in circumstances sufficient to modify child support.” Id. “Once the party seeking modification has met the burden of showing changed circumstances, the child support shall be determined in conformity with criteria set forth in section 452.340 and applicable Supreme Court Rules.” Eaton v. Bell, 127 S.W.3d 690, 697 (Mo.App. W.D.2004).

Section 452.370.1 provides:

If the application of the child support guidelines and criteria set forth in section 452.340 and applicable supreme court rules to the financial circumstances of the parties would result in a change of child support from the existing amount by twenty percent or more, a prima facie showing has been made of a change of circumstances so substantial and continuing as to make the present terms unreasonable, if the existing amount was based upon the presumed amount pursuant to the child support guidelines.

§ 452.370.1. “The twenty percent provision in section 452.370.1 is inapplicable when the existing child support amount is not based upon the presumed amount under the child support guidelines.” Talley v. Bulen, 193 S.W.3d 881, 884 (Mo.App. S.D.2006).

Under the federal income tax code, the parent who has custody over the child at issue for the greater portion of the calendar year is entitled to claim the dependency exemption for that child. Nevins v. Green, 317 S.W.3d 691, 698 (Mo.App. W.D.2010). “An exception to the general rule provides that the noncustodial parent may claim the child as a dependent if the custodial parent signs a written declaration that he or she will not claim the child as a dependent for the taxable year, and the noncustodial parent attaches the declaration to his or her return for the taxable year.” Id.

“Assumption 7 of Form 14 provides that ‘[t]he schedule of basic child support obligations assumes that the parent entitled to receive support claims the tax exemption for the child entitled to support.’ ” Id. at 699. “This court has held that, because the Form 14 child support calculation is based, in part, on Assumption 7, to award a dependent tax exemption to the child-support obligor, the trial court is required to rebut the [presumed child support amount (“PCSA”) ] as being unjust or inappropriate, even if the dollar amount is not rebutted.” Id. (internal quotation omitted). “Therefore, to award Father the tax exemption [in the original judgment], the trial court was required to rebut the PCSA and make a written finding that it was unjust or inappropriate.” ²Id.

Father claims that, because the judgment modifying the original dissolution decree left intact the even division of the dependency tax exemptions, that it was implicit in its judgment that the presumed Form 14 amount was rebutted as unfair and unreasonable. See Talley, 193 S.W.3d at 884 (“[W]hen a trial court deviates from the PCSA, then, a fortiori, the amount awarded is not based upon the presumed amount pursuant to the child support guidelines.”). Father's contention is belied, however, by the express statements made by the parties in their joint stipulation in support of modification and by the trial court's judgment modifying the child support amount. As noted supra, the parties submitted a jointly prepared Form 14, which they agreed was accurate and “represents an amount of child support that is just, reasonable and appropriate under the circumstances.” The trial court found that “[t]he Form 14 ... is accurate and the parties agree that it represents an amount of child support that is just, reasonable and appropriate under the circumstances.” In light of Father's stipulation and the trial court's express findings, the trial court cannot be deemed to...