Marriage of Colley, In re, 21987

• Citation: 984 S.W.2d 163
• Decision Date: 30 November 1998
• Docket Number: No. 21987,21987
• Parties: In re the MARRIAGE OF Keith T. COLLEY and Beverly A. Colley. Keith T. Colley, Petitioner-Respondent, v. Beverly A. Colley, Respondent-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 163

984 S.W.2d 163

In re the MARRIAGE OF Keith T. COLLEY and Beverly A. Colley.

Keith T. Colley, Petitioner-Respondent, v. Beverly A. Colley, Respondent-Appellant.

No. 21987.

Missouri Court of Appeals,

Southern District,

Division Two.

Nov. 30, 1998.

Application for Transfer Denied

Dec. 22, 1998.

Application for Transfer Denied

Feb. 23, 1999.

Kenneth C. McManaman, Cape Girardeau, for Appellant.

Manuel Drumm, Sikeston, for Respondent.

Before GARRISON, C.J., MONTGOMERY, J., and BARNEY, J.

PER CURIAM.

Beverly A. Colley ("Wife") appeals from a judgment entered in the dissolution of marriage action filed by Keith T. Colley ("Husband"). The judgment ended the eighteen plus year marriage that produced two children, ages eleven and eight. On this appeal, Wife presents eight points of alleged trial court error. We reverse and remand in part, and affirm in part.

The statement of facts in Wife's brief is fifteen pages long and consists entirely of a summary of each witness's testimony, whether related to the issues attempted to be presented on appeal or not. The transcript references reveal that the summary progresses by sequential page numbers in the transcript, and no attempt is made to collect evidence concerning any particular issue. Rule 84.04(c) ¹ requires that:

The statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument. Such statement of facts may be followed by a resume of the testimony of each witness relevant to the points presented.

A statement of facts that consists only of a summary of the entire trial testimony does not comply with this rule and would warrant a dismissal of the appeal. Moore v. Rollmo Corp., 575 S.W.2d 859, 861 (Mo.App. S.D.1978); Graff v. Montileone, 523 S.W.2d 131 (Mo.App.St.L.1975). We continue with the desire to decide cases on the merits where possible, however, rather than dismissing appeals because of Rule 84.04 violations, and will attempt to do so here.

The scope of our review in a dissolution case is established by Rule 73.01(c), as construed in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The judgment of the trial court will be sustained 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. Id. at 32. The appellate court defers to the trial court's determinations of credibility, viewing the evidence and permissible inferences therefrom in the light most favorable to the decree, and disregarding all contrary evidence and inferences. Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991). This is because credibility of witnesses and the weight to be given their testimony is a matter for the trial court, which is free to believe none, part, or all of the testimony of any witness. In re Marriage of Perkel, 963 S.W.2d 445, 447 (Mo.App. S.D.1998).

Wife's first point relied on is The Circuit Court erred and abused its discretion in the judgment, findings of fact and conclusions in that the court found that there was no marital misconduct on the part of either party, including Husband, as it relates to the issues of maintenance and division of marital property.

First, we are compelled to note that this point relied on fails to comply with the requirements of Rule 84.04(d), which specifies that a point relied on "shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous...." The three components of a point relied on are: a concise statement of the challenged ruling; the rule of law the trial court should have applied; and the evidentiary basis upon which the asserted rule is applicable. Jones v. Wolff, 887 S.W.2d 806, 808 (Mo.App. E.D.1994). Points which do not state what ruling of the trial court is challenged nor provide a proper evidentiary basis, but instead set out abstract statements of law, preserve nothing for appeal. Id. "Setting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this Rule." Rule 84.04(d). We are, however, permitted, in our discretion, to review for plain errors affecting substantial rights that result in manifest injustice or a miscarriage of justice. Rule 84.13(c). We will do so here.

From a review of the 1 1/2 page argument under this point, it appears that Wife is contending that the trial court erred in concluding that there was no marital misconduct on the part of Husband. While Wife sets out several instances of conduct which she contends should have dictated a finding of marital misconduct, with one exception, it is all derived from her testimony. On appeal of a court-tried case, the appellate court defers to the trial court on factual issues because the trial court is in a better position to judge the credibility of witnesses and the persons directly, including their sincerity, character, and other trial intangibles which may not be completely revealed by the record. In re Adoption of W.B.L., 681 S.W.2d 452, 455 (Mo.1984). As noted earlier, the trial court is free to believe none, part, or all of the testimony of any witness. In re Marriage of Perkel, 963 S.W.2d at 447. An appellate court assumes that the trial court believed the testimony consistent with its judgment. Matthews v. Moore, 911 S.W.2d 664, 668 (Mo.App. S.D.1995).

We also note that Wife cites two cases in support of her first point, both of which contain language to the effect that the appellate court may rule to the contrary if the finding of the trial court is overwhelmingly against the weight of the evidence. Trotter v. Carter, 353 Mo. 708, 183 S.W.2d 898, 902 (Mo.1944); Tharp v. Oberhellmann, 527 S.W.2d 376, 379 (Mo.App.St.L.1975). We do not disagree with that general principle, but the theme of Wife's point seems to be that the trial court was required to believe her testimony. As indicated above, this premise is unsound. No plain error appearing, Wife's first point is denied.

In Wife's second point, she attacks the award of child support as being contrary to § 452.340, Rule 88.01, and Form 14. Wife and Husband each filed completed Form 14's with the trial court. Wife's arrived at a presumed amount of child support of $1,245.11 based on a monthly income of $855.48 for her and $6,666.66 for Husband. The amount of presumed child support shown by Husband's Form 14 was $799, based on a monthly income of $1,000 for Wife and $4,333 for Husband. The trial court, however, apparently did not accept either of those Form 14's because it awarded Wife child support in the amount of $902 per month consisting of $456 per child. In doing so, the trial court said in its judgment that the amount of child support awarded was "[p]ursuant to RSMo. Section 452.340, Supreme Court Rule 88.01 and the presumed Form 14, a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference...." No Form 14 is attached to the copy of the judgment filed with this Court, however. Wife argues in her brief that, in fact, no Form 14 was attached to the judgment, and Husband does not refute that statement.

Based upon the evidence and after considering all factors, including the ability to earn, the trial court found that Husband's approximate income was $60,000 per year and Wife's was $12,000. By applying only these amounts to a Form 14, however, we find that the amount of Husband's presumed child support obligation would be $923.34, rather than the $902 awarded by the court. We are, therefore, left to speculate about how the trial court arrived at the amount of the child support awarded.

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. Rule 88.01. That presumption may be rebutted if the trial court enters a finding that the amount so calculated, after consideration of all relevant factors, is unjust or inappropriate. Id.

In Woolridge v. Woolridge, 915 S.W.2d 372 (Mo.App. W.D.1996) the court explained the difference between rejecting a Form 14 filed by a party, and rebutting the presumed child support amount calculated pursuant to Form 14. Rejection occurs when the trial court finds: (1) an item is incorrectly included in the calculation, (2) an amount of an item included in the calculation is incorrect, or (3) the mathematical calculation itself is incorrect. Id. at 378. Rebuttal of the presumed child support amount calculated pursuant to Form 14 occurs when the court determines that the amount so calculated is unjust or inappropriate after consideration of all relevant factors. Id. at 378-79.

In the instant case, the child support awarded by the trial court was different than that calculated in either party's Form 14. The only inference we can draw is that the court rejected those Form 14 calculations. The trial court is required, however, to determine and find for the record the correct Form 14 amount in every case. Woolridge, 915 S.W.2d at 380. Where it rejects the Form 14 calculations of the parties, the trial court must make its own calculation of the presumed child support amount under Rule 88.01 and Form 14 by preparing its own Form 14, or articulating on the record how it calculated its Form 14 amount. Id. at 381-82. ² Here, the trial court apparently prepared its own Form 14 in arriving at the amount of child support awarded. Those calculations are not before us, however, and we can only speculate about the amounts found to be correct and utilized by the trial court. Likewise, we cannot determine from the record whether the trial court deviated from the presumed child support amount as determined by its Form 14 calculations. If that occurred, it was necessary that there be a finding that the amount so calculated was unjust or inappropriate. In re Marriage of Douglas, 870 S.W.2d 466,...