Mitalovich v. Toomey, ED 87755.

• Decision Date: 21 November 2006
• Docket Number: No. ED 87755.,ED 87755.
• Citation: 206 S.W.3d 361
• Parties: John MITALOVICH, Appellant, v. Tammy Lee TOOMEY, Respondent.
• Court: Missouri Court of Appeals

206 S.W.3d 361

John MITALOVICH, Appellant, v. Tammy Lee TOOMEY, Respondent.

No. ED 87755.

Missouri Court of Appeals, Eastern District, Division One.

November 21, 2006.

COPYRIGHT MATERIAL OMITTED

Jody H. Wolff, Clayton, MO, for appellant.

Ann E. Bauer, Clayton, MO, for respondent.

CLIFFORD H. AHRENS, Presiding Judge.

John Mitalovich ("father") appeals the judgment of the trial court denying his motion to modify in part and granting the counter-motion to modify of Tammy Lee Toomey ("mother") in part. Father claims the court's determinations regarding retroactive child support, his monthly expenses, and his income and ability to work were not supported by substantial evidence. Furthermore, father challenges the court's award of attorneys' fees to mother and its order that father pay fees to the guardian ad litem. We modify the judgment pursuant to Missouri Supreme Court Rule 84.14 and affirm the judgment of the trial court as modified.

In 2002, a judgment was entered pursuant to the Uniform Parentage Act, which determined paternity, custody, visitation, and support for the minor child of father and mother. The judgment awarded joint legal custody to father and mother, with primary physical custody awarded to mother. Father was granted temporary physical custody and visitation. Father was ordered to pay $60.00 per week in child support. In 2004, Father filed a motion to modify the judgment with respect to custody and support. He sought modification of the physical custody schedule, as well as modification of support. Mother answered the motion and filed a counter-motion to modify, motion for appointment of a guardian ad litem, and motion for a temporary restraining order and preliminary injunction. In her motions mother alleged that father placed the minor child's safety at risk and requested supervised visitation. She also requested an increase in child support. A guardian ad litem was appointed, and the parties subsequently entered into an interim parenting agreement pending the hearing on the motions to modify. This agreement addressed several of mother's concerns regarding father's actions with regard to the safety of the minor child. This agreement also provided that each parent would share the cost of work-related child care equally, and each parent was responsible for paying half the weekly fee. Mother and father entered into another interim consent judgment which addressed the custody and visitation rights of father, and the remaining issue regarding child support was heard by the family court commissioner ("commissioner"). The commissioner entered findings and recommendations, and this was approved and adopted as the judgment by the trial court. Father filed a motion for rehearing, which was sustained in part. The court remanded the cause to the commissioner to amend the proposed judgment and parenting plan to conform to the evidence regarding daycare expenses. The commissioner subsequently entered amended findings and recommendations, which were adopted by the trial court as an amended judgment. Father filed a second motion for rehearing. Again, father argued that the amended judgment did not properly calculate the amount of retroactive support because it included amounts already paid directly to the daycare provider. The court entered a judgment and order, requiring the commissioner to recalculate child support and retroactive child support. The commissioner provided a second amended version of the previous findings of fact, conclusions of law and modification, which was approved and adopted by the court. It is from this judgment father now appeals.

We will reverse the trial court's judgment on a motion to modify if the judgment is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Clark v. Clark, 101 S.W.3d 323, 329 (Mo.App.2003). We view the evidence and all reasonable inferences therefrom in the light most favorable to the judgment of the trial court, and we disregard the evidence and inferences to the contrary. Id. "We defer to the trial court even if the evidence could support a different conclusion." Id.

In his first point on appeal, father claims the court erred in including work-related child care costs in its determination of retroactive child support because he paid these costs to the child care provider directly. Father argues that he paid half the costs directly to the child care provider for the thirteen months during the pendency of the case.

Mother concedes that father paid the costs directly to the child care provider, and therefore, they should not be assessed against him in the amount of retroactive child support ordered. In her brief, mother states that father should be given credit for the thirteen months of child care payments made directly to the provider. We agree.

The child care costs were included in the trial court's Form 14 calculation of the amount of presumed child support of $564.00. This amount was used to calculate the amount of retroactive child support father owed to mother during the pendency of the action. However, because father paid half of the child care costs to the provider directly for thirteen months while this action was pending, the court's calculation inappropriately charged him with those costs in its retroactive award as well. As father correctly notes, he is entitled to receive a credit against retroactive support for those amounts he voluntarily paid while the action was pending. Foraker v. Foraker, 133 S.W.3d 84, 99 (Mo.App. 2004) (citation omitted). As a result, the trial court erred in entering its award of retroactive child support in the amount of $5,168.00.

Pursuant to Rule 84.14, we may "give such judgment as the court ought to give," and finally dispose of the case. As a result, we can enter judgment that should have been entered by the trial court instead of remanding the cause for correction. Malawey v. Malawey, 137 S.W.3d 518, 525 (Mo.App.2004) (citation omitted). "This is particularly appropriate for judgments where there is no dispute as to the facts but only a dispute as to their legal significance." Id. We will enter the judgment the trial court should have where the evidence in the record before us assures us that the conclusion reached is reasonable, fair, and accurate. Id. As previously noted, the parties agree that father should be given a credit for thirteen months of child care payments he made directly to the provider for thirteen months while this action was pending. The parties both state that the monthly child care cost was $221, and each party paid half the cost. Therefore, father should be credited with $1,436.50, which is half of the monthly cost of $221, multiplied by thirteen months. As a result of this credit, the judgment should be modified to reflect a retroactive child support award of $3,731.50.

Father additionally complains of the trial court's use of general language noting that the Form 14 supersedes any provision in the parenting plan that sets any cost-sharing provisions related to child care that may differ from the Form 14. He asks that we remand the matter for clarification and revision; however, we do not believe such clarification is necessary. Although the parties entered into a consent interim parenting agreement while the action was pending regarding payment of the child care costs, clearly the trial court's Form 14 calculation was intended to supersede this interim agreement.

Missouri law states that pursuant to Missouri Supreme Court Rule 88.01, the trial court must use the Form 14 to calculate child support. Harrison v. Harrison, 871 S.W.2d 644, 646 (Mo.App.1994); (quoting Watkins v. Watkins, 839 S.W.2d 745, 748 (Mo.App.1992)). Form 14 provides for allocation of the reasonable work-related child care costs of the custodial parent. Id. In the present case, the trial court was required to either allocate that child care cost in conformity with the Form 14, or make a finding that the award of such an amount was unjust or inappropriate. Id. The trial court found that mother required daycare for the minor child, and there was evidence in the record to support this testimony. Therefore, the court was required to include that cost in its Form 14 calculation. The trial court properly included this cost in its calculation, and therefore, the court did not err in noting that this calculation superseded any provision regarding child care costs that differed from the Form 14 calculation.

In his second point on appeal, father claims the trial court erred in finding that his expenses were unreasonable because the evidence corroborated his claimed expenses in his statement of income and expenses. The trial court found that father's claimed average monthly expenses were unreasonable and reduced several of father's claimed expenses. The trial court reduced father's total average monthly expenses from the claimed amount of $2,555.13 to $1,520.00 per month.

The trial court reduced father's claimed expenses for rent paid living in his mother's residence and for food. Father did testify that he paid weekly rent to his mother to live in her house. However, father also testified that his mother was lenient with him if he did not have extra money for bills. He also stated that his contribution to his mother for food each month varied. We defer to the superior ability of the trial court to judge such factors as the credibility, sincerity, and character of the witnesses, as well as the other intangibles which cannot be discerned from the transcript. Slattery v. Slattery, ...