Leone v. Leone

• Decision Date: 05 March 1996
• Docket Number: Nos. WD,s. WD
• Parties: Pamela A. LEONE, Respondent, v. Ronald J. LEONE, Appellant. 50710, WD 51137.
• Court: Missouri Court of Appeals

Page 608

917 S.W.2d 608

Pamela A. LEONE, Respondent, v. Ronald J. LEONE, Appellant.

Nos. WD 50710, WD 51137.

Missouri Court of Appeals,

Western District.

March 5, 1996.

As Modified April 2, 1996.

Appeal from the Circuit Court of Boone County; The Honorable Ellen S. Roper, Judge.

Jean E. Goldstein, Hindman, Scott, Goldstein & Harder, Columbia, for Appellant.

Charles P. Todt and Kimberly J. Bettisworth, The Todt Law Firm, St. Louis, for Respondent.

Before SPINDEN, P.J., and BRECKENRIDGE and SMART, JJ.

BRECKENRIDGE, Judge.

Ronald J. Leone (Father) appeals the trial court's judgment dissolving his marriage from Pamela A. Leone (Mother). He contends the court erred by awarding Mother child support and granting her sole legal custody of the parties' two children. He also appeals the court's subsequent order denying his motion for a temporary restraining order and preliminary injunction. This court consolidated the appeals but addresses them separately in this opinion.

Appeal From the Dissolution Decree

Father and Mother were married on April 16, 1988. They have two children, Hannah Leone, who was born on October 12, 1988, and Emily Leone, who was born on September 7, 1990. On August 1, 1993, the family moved from Buffalo, New York to Columbia, Missouri. Mother filed a petition for dissolution of marriage on November 1, 1993, in the Circuit Court of Boone County.

On December 30, 1994, the trial court entered an order awarding the parties joint physical custody of the children and awarding sole legal custody to Mother. During the school year, Mother was given custody of the children Monday through Thursday, with Father having custody Friday through Sunday. Father was given custody during the summer recess except for a three week period.

The court ordered Father to pay $762.00 per month in child support during the school year. Neither party was ordered to pay child support during the summer recess. Each party was awarded the personal property in their possession, and a 1985 Pontiac and 1988 Ford was set aside to Mother as her separate property. Mother's 401(k) plan, worth $24,000.00, was divided equally between the parties.

Father's first point contests the trial court's award of child support to Mother. In the first of three subpoints beneath this point, Father alleges the trial court abused its discretion by ordering him to pay child support to Mother because "the parties have identical incomes and nearly equal joint physical custody of the children."

The judgment of the trial court will be affirmed 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); In re Marriage of Clark, 801 S.W.2d 496, 498 (Mo.App.1990). In reviewing the trial court's judgment, this court views the evidence and the inferences therefrom in a light most favorable to the judgment and disregards all contrary evidence. Stein v. Stein, 789 S.W.2d 87, 92 (Mo.App.1990). The court's determination as to the award of child support lies within its discretion and will not be reversed absent an abuse of that discretion or an erroneous application of the law. K.R.W. by A.C.S. v. D.B.W., 830 S.W.2d 38, 40 (Mo.App.1992).

Each party submitted a Form 14, but the trial court rejected the parties' proposed Form 14 child support amounts. The trial court found Mother's gross monthly income to be $2258.75 and Father's gross monthly income to be $2333.00. The cost of reasonable work-related child care expenses was determined to be $499.00 per month and health care insurance $65.00 per month. The court then calculated the total presumed amount of child support in the sum of $1500.00 per month, with Mother responsible for 49.2% ($738.00) and Father responsible for 50.8% ($762.00). The court awarded Mother $762.00 per month in child support during the school term. The court then ordered Mother to pay the $65.00 per month health insurance cost.

Under Rule 88.01, the trial court considers "all relevant factors" in determining the amount of child support, including the financial resources and needs of the children and of the parents. An award of joint custody does not prevent the trial court from awarding child support. § 452.375.10, RSMo 1994. ¹ This is true even though the parties have similar incomes and the child spends a substantial amount of time with each parent. Crabtree v. Crabtree, 802 S.W.2d 567, 569-70 (Mo.App.1991). In Crabtree, this court held that it was not an abuse of discretion for the trial court to award child support under those circumstances. Id. The court emphasized that the party awarded support had higher expenses than the other parent, including rent, utility and day care expenses. Id. at 570.

One of the instructions for use of Form 14 states that "[a]n adjustment to the presumed child support amount may be appropriate when the child or children spend substantial time with both parents." Form No. 14, Directions for Use, Comment (D) (emphasis added). "This instruction clearly places the decision to adjust the award within the trial court's discretion." Welker v. Welker, 902 S.W.2d 865, 868 (Mo.App.1995). The court in Welker held that the trial court did not abuse its discretion in modifying the dissolution decree to order the father to pay the presumptive child support amount, even though the father had equal joint physical custody rights. Id. The court noted the testimony of the mother that, due to the father's work schedule, she had the children 90% of the time. Id.

Here, the trial court's child support award contains different provisions for the nine month school year and the three month summer recess. The court will review the two provisions of the court's award separately. First, the order that Father pay Mother support of $762.00 per month during the school term is examined, and it is found that such child support award was not an abuse of discretion. Although the parties have nearly equal time with the children when the entire year is considered, Mother has custody of the children for a majority of time during the school year. In addition, she has the children for nearly the entire school week. This means that she will be responsible for school-related expenses such as transportation, day-care, and extracurricular activities. This increased financial burden, coupled with the longer custodial periods, constitutes a basis for the court's award of child support. Crabtree, 802 S.W.2d at 569-70; Welker, 902 S.W.2d at 868.

A review of the court's decision that no child support be paid during the summer reveals that there is no substantial evidence to support the trial court's failure to award Father any child support during the summer recess. Except for a three week period, Father is to have custody of the children for the entire summer recess. Just as Mother will be responsible for school-related expenses during the school year, Father will have to incur day care and other related expenses during the summer. The parties have nearly equal incomes and few assets. In addition, there was no evidence of any expenses Mother would incur during the summer which would justify her not contributing to the children's support. Considering these facts, there was no basis for the denial of child support to Father. The trial court abused its discretion in failing to award Father the presumed amount of child support of $738, less the $65.00 health insurance premium paid by mother, for each month of the summer recess.

Rule 84.14 permits the appellate court to enter the judgment that the trial court should have entered under the circumstances of the case. Burkhart v. Burkhart, 876 S.W.2d 675, 680 (Mo.App.1994). The record and evidence here permit this court to determine parties' child support obligations with confidence in the reasonableness, fairness, and accuracy of the decision. Grunden v. Nelson, 793 S.W.2d 569, 576 (Mo.App.1990). The parties here do not dispute the accuracy of the financial record. In addition, a new judge would be required on remand, because the trial judge who entered the dissolution decree later recused herself from further proceedings in the case. Accordingly, this court will exercise its discretion under Rule 84.14 to dispense with the remand process and modify the award of child support. Van Pelt v. Van Pelt, 824 S.W.2d 135, 137 (Mo.App.1992).

Rather than order Father to pay Mother support during the school term and Mother to pay Father support over the summer, this court will annualize the support owed to aid the parties in budgeting. Under the trial court's order, the amount of child support to be paid to Mother is $762.00 for nine months or a total of $6858.00 per year. This court has found that during the summer school break Mother should be ordered to pay Father the Form 14 amount of $738.00 per month less $65.00 per month for health insurance, which Mother pays. For the three months of summer, this totals $2019.00. Netting the amounts each parent must contribute for the support of the children, the result is $4839.00 owed by Father to Mother. When the net figure is divided by twelve to obtain equal monthly payments, Father is obligated to pay Mother $403.25 per month. Accordingly, the trial court's award of child support to Mother of $762.00 during the school year is reversed, and Father is ordered to pay her child support in the sum of $403.25 per month. This award of support is retroactive to December 30, 1994, the date of the original dissolution decree. See Geil v. Geil, 647 S.W.2d 161, 163 (Mo.App.1983).

Father also alleges the trial court erred in failing to allocate income tax dependency exemptions and child care tax deductions and credits. Father contends that he has primary physical custody of the children 51.3% of the year and therefore he would be entitled as "primary custodial parent" to take both children as tax dependency exemptions and all of the...