Marriage of Garrison, In re, 18060
| Citation | 846 S.W.2d 771 |
| Decision Date | 04 February 1993 |
| Docket Number | No. 18060,18060 |
| Parties | In re the MARRIAGE OF GARRISON. Rebecca E. GARRISON, Petitioner-Respondent, v. David L. GARRISON, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Jerry E. Wells, Joplin, for respondent-appellant.
C.R. Rhoades, Neosho, for petitioner-respondent.
In this domestic relations case David L. Garrison (the husband) appeals from a judgment dissolving his marriage to Rebecca E. Garrison (the wife). He challenges the portions of the judgment ordering him to pay child support and dividing marital property and marital debts.
We reverse and remand the portion of the judgment ordering the husband to pay child support of $1,100 a month. In all other respects, we affirm the judgment.
The parties were married September 6, 1975. Two children were born of the marriage: Ellen, born May 18, 1977, and Leigh, born February 29, 1980.
In February 1988, the parties separated and the wife filed a petition for dissolution. She dismissed that case after a bankruptcy court approved a payment to her of $1,000 per month from a family corporation, Pronto Enterprises, a chain of convenience stores and truck stops. Before the separation, she had worked for Pronto as a store manager and trainer of employees.
Pronto had sought bankruptcy protection under Chapter 11 after discovering in August 1987 that it owed the federal government approximately $2,500,000 in unpaid gasoline excise taxes, penalties, and interest. In April 1991, upon petition of the IRS and another creditor, Pronto's Chapter 11 bankruptcy proceeding was converted to a Chapter 7. Thereafter, the wife and the husband received no salary or other payment from Pronto. The wife initiated this dissolution action on April 16, 1991.
After her income from Pronto ceased (and apparently during the summer of 1991), the wife commuted to Pittsburg (Kansas) State University to complete the nine credit hours she needed for her master's degree. As of the January 1992 trial, she had been teaching for the Diamond School District for three and one-half years. Her gross pay from her teaching employment was $1,614.17 per month; her net income was $1,192.07. 1 As noted, the $1,000 she received from Pronto terminated with the April 1991 payment.
The husband, age 53, was president and managing officer of Pronto. He had been with Pronto 20 years and in the gasoline business for 25 years. Earlier he had held employment in industrial sales, worked for an oil company for two years, and taught school for two years. After Pronto was forced into Chapter 7 bankruptcy, the husband had no employment and no income. He paid his living expenses with personal credit cards and loans from family members and friends. On his Civil Procedure Form No. 14 and his statement of income and expenses, the husband listed his monthly income as "zero." By his testimony, he reaffirmed a lack of income and specifically denied he had monthly income of $6,600, the amount assigned him by the wife on her Form 14.
Concerning his efforts and plans to obtain employment, the husband testified that his earlier hope of employment at one of the business locations formerly owned by Pronto had been dashed because the new owner was "not able to make it." The husband had contacted two prospective purchasers of that business about a job and had discussed a salary "in the neighborhood of $1,800 a month," but he had received no assurance of employment. He stated that $1,800 a month "would be the minimum that I would hope for" and agreed that, given his previous level of income and standard of living, he would "probably not" be satisfied with a job that paid $22,000 a year. Asked "the minimum acceptable level of compensation you're willing to accept for full-time employment," he responded, "I believe in the, I hope, not too distant future, I can get back to the level where I was," that level being "approximately $60,000 a year." He said he planned to seek employment at that level of compensation "[j]ust as soon as I possibly can."
The husband's evidence concerning his past earnings consisted of the following. He denied he ever made $200,000 a year.
The bankruptcy court approved an annual salary of $40,000 for him when Pronto entered Chapter 11 proceedings. In 1990 his annual salary plus perquisites from Pronto was in the range of $60,000. 2 Deposits into his personal checking account in 1990 exceeded $82,000. He had not filed personal income tax returns for 1988, 1989, and 1990
The wife's evidence about the husband's income, past and present, came from her Form 14 3 and her testimony. On direct examination, the wife testified:
Q. (to the wife) ... The last few years that you were together, Mr. Garrison was earning how much as a result of the store operation?
A. I don't really know. It would just be an approximate figure.
....
Q. Approximately how much?
A. $200,000.
On her Form 14 the wife listed the husband's monthly gross income at $6,666, which she said was a conservative figure based on what she "knew" the husband's earnings were during the marriage. When asked if she had "anything that supports" the $6,666 monthly income figure, her lawyer responded,
We will set forth additional facts where necessary in the discussion of the husband's points on appeal.
The trial judge awarded marital property valued at $33,073 to the wife and $2,600 to the husband. The husband was ordered to pay all marital debts, which totaled $2,834,000 and consisted of credit card account balances, a $325,000 contingent debt to Federated Mutual, and the I.R.S. obligation of approximately $2,500,000. The husband was ordered to pay to the wife $1,100 per month for child care costs ($550 per month per child). He was ordered to obtain and maintain health and dental insurance for the two children and to pay all non-covered health expenses for the children, including the deductible under the policy. The court awarded no maintenance, but it ordered the husband to pay the wife $2,500 for her attorney fees. In its decree the trial court declared that the child support order complied with "Schedule 14 of Supreme Court Rule 88.01...."
Section 452.340, RSMo Supp.1991, governing payment of child support, states in pertinent part:
1. In a proceeding for dissolution of marriage ... the court may order either or both parents owing a duty of support to a child ... to pay an amount reasonable or necessary for his support ... after considering all relevant factors, including:
(1) The financial needs and resources of the child;
(2) The financial resources and needs of the parents;
(3) The standard of living the child would have enjoyed had the marriage not been dissolved;
(4) The physical and emotional condition of the child, and his educational needs.
In 1989, the Missouri General Assembly added subsections 7 and 8 to § 452.340. In subsection 7, the legislature directed the Missouri Supreme Court to adopt a rule establishing guidelines for awards of child support. Subsection 8 of § 452.340 provides, in pertinent part:
Beginning October 13, 1989, there shall be a rebuttable presumption ... that the amount of the [child support] award which would result from the application of the guidelines established pursuant to subsection 7 of this section is the correct amount of child support to be awarded.
In response to the legislative mandate of § 452.340.7, the supreme court adopted Rule 88.01 and Civil Procedure Form 14. Rule 88.01, essentially a restatement of § 452.340.1 and § 452.340.8, provides in part:
When determining the amount of child support to order, a court ... shall consider all relevant factors, including:
(a) the financial resources and needs of the child;
(b) the financial resources and needs of the parents;
(c) the standard of living the child would have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of the child; and
(e) the educational needs of the child. There is a rebuttable presumption that the amount of child support calculated pursuant to Civil Procedure Form No. 14 is the amount of child support to be awarded in any judicial ... proceeding for dissolution of marriage, legal separation, or child support. It is sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to Civil Procedure Form No. 14 is correct if the court ... enters in the case a written finding or a specific finding on the record that the amount so calculated, after consideration of all relevant factors, is unjust or inappropriate.
Form 14 includes a worksheet to assist in calculation of a presumed child support amount and a schedule of dollar amounts of child support as determined by the number of children and the parties' combined monthly gross income. The "Directions for Use" accompanying Form 14 include the following:
If either parent is unemployed or underemployed, child support may be calculated in appropriate circumstances based on a determination of potential income. To determine potential income, the court may consider employment potential and probable earnings level based on the parent's recent work history, occupational qualifications, [and] prevailing job opportunities in the community....
As in other court-tried cases, our review is governed by Rule 73.01(c) and the principles enunciated in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). Mistler v. Mistler, 816 S.W.2d 241, 245 (Mo.App.1991). Thus we must affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32.
In the husband's first point on appeal he...
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