Krajcovic v. Krajcovic

• Decision Date: 25 June 1985
• Docket Number: No. 49378,49378
• Parties: David Paul KRAJCOVIC, Appellant, v. Judith Ann KRAJCOVIC, Respondent.
• Court: Missouri Court of Appeals

Page 884

693 S.W.2d 884

David Paul KRAJCOVIC, Appellant, v. Judith Ann KRAJCOVIC, Respondent.

No. 49378.

Missouri Court of Appeals,

Eastern District,

Division One.

June 25, 1985.

Edward P. McSweeney, St. Louis, for appellant.

Hal Berrien Coleman, Clayton, for respondent.

KAROHL, Judge.

Appellant David Paul Krajcovic former husband of respondent Judith Ann Krajcovic appeals trial court order modifying dissolution decree. The issues focus on that portion of the decree regarding maintenance and child support.

At the time of dissolution in September 1975, the parties had four children; David, Lisa, Michael and Jennifer. The decree, which incorporated a separation agreement of the parties, awarded custody of the four children to wife. It provided that husband pay wife twenty-five percent of his net income after income taxes from his medical practice as maintenance and child support. In any event, husband was not to pay less than $1,000 per month for maintenance and $250.00 per month per child as support. Wife was awarded the family home at 21 West Glendale Drive in St. Louis County, Missouri and she agreed to make the payments on a note secured by a deed of trust on the property. The other provisions of the decree are not relevant to this appeal.

On July 1, 1980, the trial court modified the decree. Husband was to assume all house payments and taxes on the West Glendale property. "Upon sale of the residence husband shall recover from the proceeds of the sale an amount equal to all payments made by him for principal and interest paid." Child support minimum payments were increased to $281.25 per month per child.

Husband formed a corporation, St. Louis Surgical Consultants, Ltd., in October 1981, to manage the operations of his medical practice. He was paid his salary directly from the corporation. He owns 100% of the stock of the corporation. His present wife, Sandra, is employed full-time in his office as a secretary, accountant and nurse. He is the president and his wife is the secretary of the corporation. There are no other officers or directors.

On June 18, 1984 the trial court again modified the 1975 decree. Husband was awarded primary custody of David and Lisa, with reasonable rights of visitation and temporary custody to wife. Husband was ordered to pay $500.00 per month per child for Michael and Jennifer. The order of July 1, 1980 was amended by agreement of the parties so that husband recover an amount equal to all payments he made on the principal of the home since July 1, 1980, if the home was sold. The parties stipulated and agreed "to submit upon briefs to the court the issue of [wife's] entitlement to 25% of the net income, after taxes, of [husband's] income derived from medical practice; (para 10, Decree 1975) both corporate and individual income tax returns for years 1976 through 1983 to be submitted to the court."

On October 1, 1984 the trial court entered the following order:

Petitioner [husband] should make the minimal payments every month, as per the modification made on June 18, 1984. At the end of the corporate tax year, petitioner will furnish a copy of both his corporate and personal income returns. Respondent [wife], abiding by the definition ordered by the Court herein, will calculate the amount due over and above the minimum paid. Petitioner will pay that amount at the beginning of the next tax year. This Order is not retroactive, but is effective for the corporate tax year ending September 30, 1984.

The court interpreted the "25% of the net income" provisions in light of the effect of the corporation as follows:

The Court finds that the phrase in the 1975 Decree 'twenty-five percent (25%) of the net income after income taxes derived from his medical practice either in the form of personal salary or earnings of a closely held corporation formed for his medical practice, after deductions only for expenses and income taxes, personal or corporate, actually paid.

Husband claims trial court error on four points. First husband contends the October 1, 1984 modification order is too vague and uncertain to be enforceable because it fails to define which expenses should be considered in computing net income.

A provision in a dissolution decree may be a valid and enforceable judgment even though facially uncertain in amount. The trial court may upon motion determine the exact amount due in accordance with the agreement of the parties, and then, upon proper application proceed to enforce the judgment. Bryson v. Bryson, 624 S.W.2d 92, 98 (Mo.App.1981). Wife argues that husband's point is premature and therefore moot as no actual controversy presently exists. She states that any uncertainty as to the order will not arise until the calculations as to the amounts due are complete. We agree. The trial court's order directs husband to make minimal payments every month as per the June 18, 1984 modification and furnish a copy of both his corporate and personal income returns at the end of the corporate tax year. It is the wife who must abide by the order of the trial court, calculate and prove the amount due over and above the minimum paid. If there is an uncertainty as to the calculations of the amount due at that time then husband can move to ascertain the amount due before the trial court. Bryson, 624 S.W.2d at 98. In that wife has not complained as to the uncertainty or vagueness of the order a ruling as to husband's contention would amount to an advisory opinion which is not a function of...