Marriage of Gerhard, In re

• Decision Date: 25 January 1999
• Docket Number: Nos. 22246,22259,s. 22246
• Citation: 985 S.W.2d 927
• Parties: In re the MARRIAGE OF Rose Marie GERHARD and Paul Christopher Gerhard. Rose Marie Gerhard, Petitioner-Respondent/ Cross-Appellant, v. Paul Christopher Gerhard, Respondent-Appellant/ Cross-Respondent.
• Court: Missouri Court of Appeals

Page 927

985 S.W.2d 927

In re the MARRIAGE OF Rose Marie GERHARD and Paul

Christopher Gerhard.

Rose Marie Gerhard, Petitioner-Respondent/ Cross-Appellant, v. Paul Christopher Gerhard, Respondent-Appellant/ Cross-Respondent.

Nos. 22246, 22259.

Missouri Court of Appeals,

Southern District,

Division Two.

Jan. 25, 1999.

Motion for Rehearing or Transfer Denied

Feb. 16, 1999.

Application for Transfer Denied March 23, 1999.

James R. Sharp, Springfield, for Appellant/Cross-Respondent.

Nancy Steffen Rahmeyer, Springfield, for Respondent/Cross-Appellant.

GARRISON, Chief Judge.

Rose Marie Gerhard ("Wife") and Paul Christopher Gerhard ("Husband") were married on May 9, 1986. The trial court dissolved the marriage pursuant to Wife's petition on February 25, 1998. Husband and Wife were awarded the joint legal custody of their three minor children with Wife being awarded the primary physical custody and Husband being allowed periods of temporary custody including six weeks in the summer and various alternating holidays. The court found the presumed correct child support amount calculated in accordance with Civil Procedure Form No. 14, § 452.340.8, RSMo. Supp.1996, and Supreme Court Rule 88.01, ¹ to be $1,267.44 per month. It also found, however, that the presumed amount was "unjust and inappropriate" and ordered Husband to pay $550 per month, retroactive, with the first payment being due on September 9, 1997. Both Husband and Wife appeal the trial court's judgment. Those appeals are consolidated and discussed together in this opinion.

In a dissolution case, the judgment of the trial court must be affirmed on appeal unless it is not supported by substantial evidence, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Hoffmann v. Hoffmann, 676 S.W.2d 817, 822 (Mo. banc 1984); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). 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. In re Marriage of Perkel, 963 S.W.2d 445, 447 (Mo.App. S.D.1998). The trial judge may believe or disbelieve all, part, or none of the testimony of any witness, and the court may disbelieve testimony even when uncontradicted. Al-Yusuf v. Al-Yusuf, 969 S.W.2d 778, 783 (Mo.App. W.D.1998).

In Wife's sole point on appeal, she contends that the trial court abused its discretion in deviating downward from the presumed amount of child support of $1,267.44 per month to $550.00 per month because the deviation is not supported by the evidence and is against the weight of the evidence. In one of Husband's three points on appeal, he contends that the trial court erred in awarding Wife child support in the amount of $550 per month. He argues that the child support amount should have been set at $421 per month because the award is not based on substantial evidence, is against the weight of the evidence, and constitutes an abuse of the court's discretion. In support, he argues that 1) his income is less than that found by the trial court, 2) the amount for day care costs that was factored into the presumed amount does not reflect those periods of time that Husband has the children nor any tax credits that Wife receives on said payments, and 3) the award makes no provision concerning abatement for the six-week period of time that Husband has temporary custody of the children. Because both of these points address the issue of child support, they will be discussed together.

A child support provision will be upheld unless the trial court abused its discretion or erroneously applied the law. Allen v. Allen, 961 S.W.2d 891, 893 (Mo.App. W.D.1998). The trial court's award of child support will not be disturbed on appeal "unless the evidence is 'palpably insufficient' to support it." Id. (quoting Elliott v. Elliott, 920 S.W.2d 570, 574 (Mo.App. W.D.1996)). Rule 88.01 establishes a rebuttable presumption that the amount of child support calculated according to Civil Procedure Form 14 is the amount of child support to be awarded. Wallace v. Ferreira, 830 S.W.2d 571, 573 (Mo.App. W.D.1992). To rebut the presumption, the court must enter a written or specific finding on the record that the amount so calculated is unjust or inappropriate after considering all relevant factors. Id. An appellate court will not substitute its judgment for that of the trial court on whether the presumed child support amount was unjust or inappropriate providing there is credible evidence to support the trial court's beliefs. Buchanan v. Buchanan, 828 S.W.2d 946, 949 (Mo.App. W.D.1992). An abuse of discretion will be found only where the trial court's ruling is clearly against the logic of the circumstances or is arbitrary or unreasonable. Id.

Wife and Husband each filed Form 14 worksheets for calculating presumed child support pursuant to Rule 88.01. Mother's Form 14 arrived at an amount of presumed child support owing from Husband of $1,267.44, based on a monthly income of $3,776.17 for her, a monthly income of $4,886.25 for Husband, $450 for Wife's monthly work-related child care costs, and $97.24 for health insurance costs for the children. Husband's Form 14 arrived at an amount owing by him of $421.29, based on a monthly income of $3776 for Wife, $1,666.67 for him, $250 per month for Wife's work-related child care costs, and $85 per month for health insurance. The trial court found that the correct figures to be utilized in calculating the presumed child support amount were the same ones utilized by Wife in her Form 14, and thus concluded that the presumed correct amount of child support owing from Husband was $1,267.44. ²

The trial court also found the following:

" ... that after consideration of all relevant factors under § 452.340.8 and Rule 88.01, the presumed amount of child support is rebutted as being unjust and inappropriate with respect to the children's uninsured medical, dental, orthodontic, vision care, prescription drug expenses, and considering all other relevant factors; that it is in the best interests of the children that [Wife] continued [sic] to provide the parties' children with a health insurance plan her [sic] employment; that after consideration of all relevant factors under § 452.340.8, RSMo Supp.1996, and Rule 88.01, the reasonable and necessary child support amount is $550.00 per month; that should the children not have a health insurance or a plan available to [Wife], [Wife] and [Husband] shall each pay one-half of all of the reasonable and necessary medical expenses of the children, the parties each have the financial resources to contribute to the payment of the noncovered medical expenses. The Court further finds that [Husband] has contributed less than $2,000 toward the support of his children since the date of separation. ³

In finding that the presumed amount of child support owing by Husband was rebutted as unjust and inappropriate, the trial court was not required to state the relevant factors it relied on to reach that conclusion, but the factors which caused the deviation must be apparent from the record. Scoggins v. Timmerman, 886 S.W.2d 135, 139 (Mo.App. W.D.1994). In that regard, our courts have said:

However, to properly frame the factual and legal issues for appeal so as to avoid needless reversals and remands, we would strongly suggest that where the trial court does "rebut" the presumed correct child support amount, it consider including in its findings why it found the amount to be unjust or inappropriate. In making such a finding, the trial court would only be articulating for the record what it is already required to do mentally by Rule 88.01.

Woolridge v. Woolridge, 915 S.W.2d 372, 382 (Mo.App. W.D.1996). See also Wright v. Wright, 975 S.W.2d 212, 213, n. 2 (Mo.App. S.D.1998). In this case, we assume that the trial court, by specifically referring to the children's uninsured medical, dental, orthodontic, vision care, and prescription drug expenses, intended to comply with the suggestions in cases such as Woolridge and Wright, and did so for the purpose of explaining its basis for deviating from the presumed correct child support amount. This conclusion is supported by the trial court's later statement in the judgment and decree in which it addressed this subject somewhat differently by stating:

... The Court has considered all relevant factors in determining child support, including all factors set forth in the revised statutes of the State of Missouri in effect on the date of the making of this Judgment and has found that the presumed amount of child support is rebutted as being unjust and inappropriate with respect to the children's uninsured medical, dental, orthodontic, vision care, and prescription drug expenses, in calculating the amount of such child support. The Court further orders [Wife] to provide medical insurance for the minor children through her employment should the same be available and orders that [Wife] and [Husband] shall each pay one-half of the children's uninsured medical, dental, orthodontic, vision care, and prescription drug expenses.

As we interpret the judgment and decree, the trial court intended to decrease Husband's child support payments solely because of its order that he pay one-half of the uninsured medical expenses for the children. ⁴

The evidence is less than clear about the extent of those uninsured medical expenses. Wife testified that there were medical expenses for the children which were not covered, or not fully covered, by her health insurance. In support, she identified some receipts representing a total of $791 that she had paid for uninsured medical expenses for the children. Her Statement of Income and Expenses filed with the trial court listed medical expenses for the children as $200 in addition to the expense of health insurance premiums. At...