Marriage of Chorum, In re, 21370

• Decision Date: 31 December 1997
• Docket Number: No. 21370,21370
• Citation: 959 S.W.2d 900
• Parties: In re the MARRIAGE OF Steven M. CHORUM and Valynn A. Chorum. Steven M.CHORUM, Petitioner-Respondent, v. Valynn A. CHORUM, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 900

959 S.W.2d 900

In re the MARRIAGE OF Steven M. CHORUM and Valynn A. Chorum.

Steven M.CHORUM, Petitioner-Respondent, v. Valynn A. CHORUM, Respondent-Appellant.

No. 21370.

Missouri Court of Appeals,

Southern District,

Division One.

Dec. 31, 1997.

Robert R. Parrish, Joplin, for Respondent-Appellant.

Albert D. Johnston, Carthage, for Petitioner-Respondent.

GARRISON, Presiding Judge.

Valynn Chorum ("Wife") appeals from a decree dissolving her marriage to Steven Chorum ("Husband"). She raises issues about the trial court's award of joint custody of the parties' child, its computation of child support, the distribution of marital property, rejection of her request for maintenance, and the amount Husband was ordered to pay on her attorney's fees. We affirm in part and reverse in part.

Husband and Wife were married on July 25, 1985, and their only child ("L.C.") was born March 6, 1986. Through much of the marriage, Wife was a homemaker, although she worked part-time for Fanning Home Medical Services at the time of trial. Husband is self-employed as a farmer. The parties separated on April 1, 1996. Shortly thereafter, Husband began a relationship with another woman, Sherry Hughes.

The trial court dissolved the marriage on November 6, 1996. It awarded the parties joint custody of L.C., and directed that Wife have primary physical custody of her. Husband was awarded physical custody of L.C. at designated times, and was ordered to pay child support of $426 per month. The trial court then divided the marital property, denied Wife maintenance, and awarded her attorney $2000 in fees.

This court will affirm a dissolution of marriage decree unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The trial court has a unique opportunity to assess the credibility of witnesses, and it is free to believe or disbelieve all, part, or none of the testimony of any witness. T.B.G., 772 S.W.2d at 654.

In her first point on appeal, Wife contends that the trial court erred in awarding joint custody of L.C. to the parties when both of them requested that sole custody of the child be awarded to Wife. In reviewing a child custody award, we are mindful that it should not be disturbed unless the ruling is clearly against the logic of the circumstances or is arbitrary or unreasonable and we are firmly convinced that the welfare of the child requires some other disposition. Hankins v. Hankins, 920 S.W.2d 182, 187 (Mo.App. W.D.1996). Accordingly, a child custody determination by the trial court is given greater deference than other types of cases. Id.

When making a custody determination, the trial court must consider "all relevant factors," including the "wishes of the child's parents as to his custody." § 452.375.2. ¹ In the instant case, both Husband and Wife expressed the desire that Wife have sole custody of L.C., and that Father be entitled to visitation. However, Husband's and Wife's wishes as to L.C.'s custody, though relevant, were not binding on the trial court, because it was required to determine L.C.'s best interests by considering all relevant factors. Distler v. Distler, 877 S.W.2d 184, 185 (Mo.App. W.D.1994). Agreements between parents that concern minor children are merely advisory. Jones v. Jones, 903 S.W.2d 277, 281 (Mo.App. W.D.1995). The child's best interests are primary, and the best interests of the parents are secondary. Wenger v. Wenger, 876 S.W.2d 735, 743 (Mo.App. E.D.1994).

The Missouri legislature has declared that it is the public policy of this state to assure children frequent and meaningful contact with both parents, and that it is in the public interest to encourage parents to share decision-making rights and responsibilities of child rearing. § 452.375.3; Hankins, 920 S.W.2d at 186. Accordingly, prior to awarding custody, the trial court is required to consider joint custody to both parents. § 452.375.4(1). In doing so, the court is to determine whether, under all of the relevant circumstances, joint custody is in the best interests of the child. In Re Marriage of Barnes, 855 S.W.2d 451, 455 (Mo.App. S.D.1993). If this is so, then the trial court grants joint custody; if not, it then considers awarding sole custody of the child to one parent or to a third party. Id.

Before a joint custody arrangement can be said to be in the best interests of the child, there should be some evidence in the record to support a finding that the parents are emotionally equipped to deal with each other as equal partners in the care of their child. Brisco v. Brisco, 713 S.W.2d 586, 590 (Mo.App. W.D.1986). The preference for joint custody stated in § 452.375.3 is in favor of parents who show the willingness and ability to share the rights and responsibilities of child-rearing even after they have dissolved their marriage. Barnes, 855 S.W.2d at 455.

In the instant case, the record contains considerable evidence that Husband and Wife are willing and able to share the responsibilities of L.C.'s upbringing. Prior to the trial, Husband and Wife discussed prospective custody arrangements, and devised a plan similar in substance to the one imposed by the trial court. The primary difference between the two schemes is in name: the Chorums designated their plan as sole custody with visitation, while the trial court characterized its scheme as a joint custody arrangement. While Wife did express concerns about leaving L.C. with Husband for an extended period during a busy time of the year on the farm, and about her being exposed to Husband's paramour, Ms. Hughes, we cannot say that Husband and Wife are not willing and able to work together to raise L.C., nor can we hold that the trial court's joint custody plan was arbitrary, unreasonable, or clearly against the logic of the circumstances. Id.; Hankins, 920 S.W.2d at 187. Point I is denied.

In her second point, Wife contends that the trial court erred in calculating Husband's child support obligation. She argues that it failed to adjust his income upward because of depreciation on farm equipment taken on his income tax returns, and because his father provides him with a home and utilities rent free. As a result, she argues, the trial court's award of $426 per month is too low.

Husband filed a Form 14 which indicated that his presumed child support obligation would be $426.02 per month, and Wife calculated a presumed amount of $617.58. The trial court, however, did not agree that Husband's income, for Form 14 purposes, should include the items which Wife complains about in this point. Although the Court ordered Husband to pay child support in an amount only two cents less than that calculated on his Form 14, it apparently did not do so because that amount was presumed correct under Rule 88.01(e). Instead, the trial court found that "[a]fter considering all of the factors in 452.340, the Court finds that the application of the guidelines on child support would be unjust or inappropriate in this case."

Rule 88.01(e) provides that there is a rebuttable presumption that the amount of child support calculated pursuant to Form 14 is the amount of child support to be awarded. If the parties do not agree on the amounts to be used to complete Form 14, then they should each submit a completed Form 14 containing the amounts they contend are correct. Tuning v. Tuning, 841 S.W.2d 264, 267 (Mo.App. S.D.1992). The trial court must then determine the correct amounts to use and calculate the presumed child support under Form 14. Id. If it finds the presumed amount to be unjust or inappropriate, it must make a written finding or a finding on the record to that effect. Id.

In the instant case, there was a disagreement about the correct amounts to be used in calculating child support under Rule 88.01(e), and each of the parties filed a Form 14. The trial court, however, without finding the presumed correct child support pursuant to Rule 88.01(e), declared that the presumed amount was unjust or inappropriate.

If the trial court agrees with and accepts a Form 14 amount calculated by a party to the proceedings, it need only so find. Woolridge v. Woolridge, 915 S.W.2d 372, 380-81 (Mo.App. W.D.1996). If it rejects ² either party's proffered Form 14, it must complete its own Form 14 to find the presumptively correct child support. Id. at 381. Only after it finds the presumptively correct child support amount according to Form 14 can the trial court then determine whether to rebut this amount as unjust or inappropriate after consideration of all relevant factors pursuant to § 452.340.8. Id. at 379. The Woolridge court observed that the trial court's failure to find the presumptively correct child support amount often forces the appellate court to engage in a "scavenger hunt" to determine if the trial court's ultimate award was correct. Id. at 383.

In Neal v. Neal, 941 S.W.2d 501, 504 (Mo. banc 1997), the Missouri Supreme Court cited, with approval, the reasoning in Woolridge, and held that the failure of the trial court to determine and find for the record the presumed correct child support pursuant to Rule 88.01, using Form 14, required a reversal and remand. The Supreme Court said:

On remand the trial court should follow the detailed prescriptions contained within Woolridge first to determine and find for the record the presumed correct child support amount and, then, to make a proper record with respect to why the presumed correct child support amount should be rebutted, if the trial court so determines.

Neal, 941 S.W.2d at 504. Based on these authorities and the record in the instant case, we reverse the judgment for child support and remand the case to the trial court for further proceedings consistent with Neal and Woolridge.

On remand, the issues...