McGowan v. McGowan
| Decision Date | 06 March 2001 |
| Citation | 43 S.W.3d 857 |
| Parties | (Mo.App. E.D. 2001) Robert J. McGowan, Appellant v. Augusta A. McGowan, Respondent ED77767 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit court of St. Louis County, Hon. Samuel J. Hais
Counsel for Appellant: Alfred J. Rathert
Counsel for Respondent: Jeffery McPherson and Michaelle Suzanne House-Connaghan
Opinion Summary: Husband Robert J. McGowan appeals the trial court Judgment of dissolution of marriage.
Division Four holds: (1) Because Husband's expense reimbursement is not profit or gain, but rather compensation for loss due to employment-related expenses, and because he must document those expenses for which he seeks reimbursement from his employer, the trial court abused its discretion on its Form 14 by including Husband's expense reimbursement in his monthly gross income. (2) Because the cost of school lunches is an ordinary, not an extraordinary, child-rearing cost, the trial court abused its discretion on its Form 14 by including the cost of school lunches in its calculation of extraordinary child-rearing costs. (3) The judgment is inconsistent in its assignment of the Union Acceptance Corporation debt, and the trial court must resolve this inconsistency. (4) In all other respects, the Judgment is affirmed.
Robert J. McGowan (Husband) appeals from a trial court Judgment of Dissolution of Marriage (Judgment). We affirm in part and reverse and remand with directions in part.
Husband and Augusta A. McGowan (Wife) married in September 1979. Husband and Wife have four children: A.M., born in November 1980, R.M., born in February 1982, K.L.M., born in May 1988, and K.R.M., born in June 1991. Husband and Wife separated in March 1999, and Husband filed a Petition for Dissolution of Marriage (Petition) in May 1999. In July 1999, Wife filed a Counter-Petition for Dissolution of Marriage. The cause was heard on three separate days, two days in November 1999 and one day in January 2000, and the trial court entered its Judgment in February 2000. Subsequently, Husband filed a Motion for New Trial, which the trial court denied.
The Judgment dissolved the marriage of Husband and Wife, divided their property and debt, and provided Wife with sole physical and legal custody of their children, subject to Husband's reasonable rights of visitation. The trial court awarded child support to Wife according to the authorized child support guidelines, as well as retroactive child support. Neither party was awarded maintenance. The trial court also found that Husband had been physically and emotionally abusive to Wife and guilty of marital misconduct.
The standard for reviewing a judgment of dissolution is the same for reviewing any court-tried action. Bullard v. Bullard, 929 S.W.2d 942, 944 (Mo.App. E.D. 1996). The judgment must be affirmed unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We view the evidence and the inferences therefrom in the light most favorable to the judgment and disregard all contrary evidence. Endebrock v. Endebrock, 916 S.W.2d 456, 457 (Mo.App. E.D. 1996). Additionally, we defer to the trial court's determinations as to the credibility of witnesses. Bullard, 929 S.W.2d at 944. The trial court is free to accept or reject all, part, or none of the testimony of a witness. Endebrock, 916 S.W.2d at 459.
Husband raises fourteen points on appeal. His first three points address the correctness of the trial court's calculation of Husband's child support obligation. An award of child support is within the sound discretion of the trial court. Bullard v. Briem, 969 S.W.2d 880, 883 (Mo.App. E.D. 1998). We will not substitute our judgment for that of the trial court absent a manifest abuse of discretion, and we will not disturb an award of child support unless the evidence is "palpably insufficient" to support it. Id.
In his first point, Husband argues that the trial court erred on its Civil Procedure Form 14 (Form 14)1 by including in Husband's monthly gross income expense reimbursement of $450 from Husband's employer.2 Husband asserts that expense reimbursement should not be included in gross income on Form 14.
Although the term "gross income" is not specifically defined, the directions for completion of Form 14 provide guidance as to what should be included in gross income:
Gross income includes, but is not limited to, salaries, wages, commissions, dividends, severance pay, pensions, interest, trust income, annuities, partnership distributions, social security benefits, retirement benefits, workers' compensation benefits, unemployment compensation benefits, disability insurance benefits, veterans' disability benefits, military allowances for subsistence and quarters, and maintenance actually received.
Overtime compensation, bonuses, .... and significant employment-related benefits may be included, in whole or in part, in 'gross income' in appropriate circumstances.
The comments for use for completion of Form 14 go on to provide that "'[i]ncome' for purposes of computing the presumed child support amount consists of a financial benefit or money received by a parent that could have a positive impact on the parent's ability to support the parent's children."
With this guidance, we conclude that Husband's expense reimbursement should not have been included in Husband's monthly gross income on the trial court's Form 14. Reimbursement is repayment or indemnification. Black's Law Dictionary 1290 (7th ed. 1999). Indemnification is the action of compensating for loss or damage sustained, Id. at 772, as opposed to a benefit, which is profit or gain. Id. at 150. Husband testified that, in order to receive his expense reimbursement, he has to fill out a form indicating specific expenses that he has incurred for which his employer will provide reimbursement.
Thus, because Husband's expense reimbursement is not profit or gain, but rather compensation for loss due to employment-related expenses, and because he must document those expenses for which he seeks reimbursement from his employer, we find the trial court abused its discretion on its Form 14 by including Husband's expense reimbursement in his monthly gross income. Accordingly, Husband's point one on appeal is granted.
In his second point on appeal, Husband argues that the trial court erred on its Form 14 by not including in Wife's monthly gross income any overtime compensation and bonus.
The comments for use for completion of Form 14 provide that when determining whether to include overtime compensation or bonuses in a parent's gross income, a court shall consider all relevant factors, including the realistic expectation that the parent will continue to receive the amount of overtime compensation or bonuses received during the three years, or such time period as may be appropriate, immediately before the beginning of the proceeding and during any other relevant time periods.
On its Form 14, the trial court found Wife's monthly gross income to be $2,621 [$31,450 yearly income] based on an hourly pay rate of $21.60 and averaging 56 hours of work every two weeks.3 The trial court also found that (1) due to her overtime, bonus and shift work, Wife earned the sum of $32,962 for the tax year 1998 and over $38,000 for the tax year 1999 and (2) Wife does not anticipate overtime or shift work for the year 2000 due to the low census of the hospital and the unionization of the nurses at the hospital.
Wife testified that she earned (1) $30,748 in 1996; (2) $32,962 in 1997; (3) $39,000 in 1998, the most money she had ever made in a year in her life, because of an extraordinary double bonus, which she had never received in the past, and overtime plan; and (4) $38,856 in 1999 because the first five months of the year the hospital was at an extraordinarily high census, several nurses resigned, she worked a lot of overtime, and she received a double bonus. The following exchange also occurred during direct examination of Wife:
Q. Ma'am, since the last time we were at court has there been any information compiled by you regarding your opportunity for overtime?
A. It's not available at this time.
Q. Why?
A. We're at a low census.
Q. And is there any way you know you won't receive overtime in the future?
A. Yes, I do know.
Q. Tell the Court how you know?
A. It's in a negotiation agreement with our contracts with unionizations.
......
Q. Do you anticipate you'll be able to make anywhere near [the amount that you earned in 1999] in the year 2000?
A. No, no.
Additionally, referring to an overtime and bonus package, Wife testified:
It's never been in effect. That's if we're at the very high --- it's all of a sudden they did that this past year because of the over census that we had, and we had a lot of nurses quit. That was something that's never been in effect before of my 15 years working.
It is for the trial court to accept or reject the reliability and weight of a pattern of bonus income. Bolton v. Bolton, 950 S.W.2d 268, 273 (Mo.App. E.D. 1997). Great deference is afforded the trial court in determining the witnesses' credibility due to its superior ability to view their demeanor while testifying. Id. We find the trial court did not abuse its discretion by not including in Wife's monthly gross income any overtime compensation and bonus. Accordingly, Husband's point two on appeal is denied.
In his third point on appeal, Husband argues that the trial court erred on its Form 14 by including certain items as extraordinary child-rearing costs. The trial court concluded that there are extraordinary expenses for the children which total not less than $689 per month and which should be incorporated into Form 14. The expenses include:
Video services for dance recitals $15
School lunches for [K.L.M.] and [K.R.M.] 78
Voice lessons -- [A.M.] 68
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