Marriage of Julian, In re, No. 62951

• Court: Missouri Court of Appeals
• Writing for the Court: CRANE
• Citation: 868 S.W.2d 182
• Decision Date: 11 January 1994
• Docket Number: No. 62951
• Parties: In re MARRIAGE OF Gregory L. JULIAN and Deborah A. Julian. Gregory L. JULIAN, Petitioner/Appellant, v. Deborah A. JULIAN, Respondent/Respondent.

Page 182

868 S.W.2d 182 In re MARRIAGE OF Gregory L. JULIAN and Deborah A. Julian.
Gregory L. JULIAN, Petitioner/Appellant,
v.
Deborah A. JULIAN, Respondent/Respondent. No. 62951. Missouri Court of Appeals,
Eastern District,
Division Two. Jan. 11, 1994.

Page 183

Theresa Counts Burke, Richard H. Ulrich, Summers, Compton, Wells, Hamburg, St. Louis, for petitioner, appellant.

Bert L. Gates, Kuelker, Oates, Schaumann, St. Louis, for respondent, respondent.

CRANE, Presiding Judge.

Husband appeals from a decree of dissolution of marriage. He challenges the trial court's award of child support and college education expenses and the division of marital property. We modify the amount of child support and affirm as modified.

Gregory L. Julian [husband] and Deborah A. Julian [wife] were married on December 28, 1982. Two children were born of the marriage, who were minors at the time of trial. Husband filed a petition for dissolution of marriage on May 21, 1991.

The trial court entered the dissolution decree on September 17, 1992. The court ordered that the parties have joint legal custody and adopted the parties' "Amended Joint Custody Plan." The plan awarded husband physical custody of the children one week each month during the school year and reasonable temporary custody and visitation on holidays and summer vacations in accordance with a detailed schedule. Wife was awarded physical custody at all other times.

The court calculated child support according to the support guidelines, imputed husband's annual income at $30,000, and ordered husband to pay wife $785.00 per month for child support. The court further ordered husband to pay one-half of each child's annual college or post-secondary school costs.

The court explicitly set out its intent to divide the marital property equally. The court awarded each party one automobile and 50% of the escrowed funds from the sale of the family home. The court awarded wife her two pension plans and awarded husband stock the parties owned in a company he managed.

Husband appeals. He asserts the trial court erred in imputing income to him, in adding his own day care expenses to the child support calculations, in awarding wife

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her pension plans, and in dividing the escrowed funds in which he claimed his father had an interest. We agree that the trial court erred in including husband's day care expenses in the child support calculations. We accordingly modify the child support award and affirm the decree as so modified.

On appeal we must affirm the decree of dissolution if it is supported by substantial evidence, is not against the weight of evidence and neither erroneously declares nor applies the law. In re Marriage of Clark, 801 S.W.2d 496, 498 (Mo.App.1990). We accept as true the evidence and inferences therefrom that are favorable to the trial court's decree and disregard all contrary evidence. Stein v. Stein, 789 S.W.2d 87, 92 (Mo.App.1990). We defer to the trial court's assessment on the credibility of witnesses. Rapp v. Rapp, 789 S.W.2d 148, 150 (Mo.App.1990).

I.

Child Support

For his first point husband contends the trial court erred in awarding $785.00 a month in child support because (1) the trial court imputed a level of income to him which was not supported by the evidence, and (2) the court incorrectly calculated day care costs. ¹ We find the trial court's imputation of $30,000 annual income to husband was supported by substantial evidence, but that the trial court erred in adding husband's day care expenses to wife's day care expenses on Form 14.

Imputation of Income

Husband contends that the evidence did not support imputing $30,000 annual income to him. The court stated it imputed the amount of husband's income from amounts supplied from the years 1988, 1989, 1990 and 1991.

In calculating child support, a trial court may properly impute income to a parent by considering past, present and anticipated future earning capacity. In re Marriage of Garrison, 846 S.W.2d 771, 775-776 (Mo.App.1993). See also Hogrebe v. Hogrebe, 727 S.W.2d 193, 195 (Mo.App.1987). A parent may not escape responsibility by voluntarily declining to work, by deliberately limiting work to reduce income, or by otherwise disabling himself financially. Garrison, 846 S.W.2d at 775. A court may, in proper circumstances, impute an income to a parent according to what that parent could have earned by using the parent's best efforts to gain employment suitable to the parent's capabilities. Id. at 775-776.

Form 14, Directions For Use, provides for imputing potential income to an unemployed or underemployed parent. 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. Id.

Husband has a bachelor of science from the University of Missouri at Rolla and a master's degree in industrial psychology from the University of Missouri St. Louis. Husband described himself as an entrepreneur. At the time of trial, he was employed by Second Story, Ltd., a corporation owned by his father which manages other companies. He testified he was an authorized officer with control over the corporate funds, the right to sign checks, and the right to borrow money. The corporation was managing two companies, Gian Pietro Maffie, Ltd. and Brake Stop, Inc., although at one time the corporation had managed 16 companies. Husband testified his wages from Second Story as reflected on his W-2 forms and/or income tax returns, were as follows:

1988--$45,000

1989--$42,250

1990--$12,000

1991--$15,227

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Husband argues that his only income consisted of the wages received from Second Story, that the...