Morton v. Stockdale, 19472
| Decision Date | 17 November 1994 |
| Docket Number | No. 19472,19472 |
| Parties | Melissa Dawn MORTON, Appellant, v. William A. STOCKDALE, Respondent. |
| Court | Missouri Court of Appeals |
Albert D. Johnston, Carthage, for appellant.
No brief filed for respondent.
Melissa Dawn Morton (Mother) appeals from an order modifying the child support obligation of her former husband William A. Stockdale (Father) for their child and the physical custody arrangements for the child. We affirm.
On May 6, 1992, the marriage of Mother and Father was dissolved. The marriage had produced one child, a son Cody, born May 17, 1991. The court awarded Mother "the exclusive care, custody and control of the minor child" and ordered that Cody was to reside with Mother at all times except June and August, during which he was to reside with Father. During June and August, Cody was to be with Mother "every other weekend." During months other than June and August, Cody was to reside with Father every other weekend and on specified holidays. 1
Mother was responsible for Cody's transportation at the beginning of each "visitation" with Father, and Father was responsible for transportation at the end of "visitation." Mother was granted the right to remove Cody from Missouri.
The court ordered Father to pay child support of $238 a month, with the support obligation abated during June and August "while the child is in the custody of [Father]."
In December 1993, Father filed a motion in which he requested the trial court change the custody arrangements and award him child support. In his motion, he alleged what he characterized as a substantial change of circumstances, namely, that Mother had moved with Cody to Wichita, Kansas, and that she had not cooperated with Father's attempts to exercise his physical custody rights.
Mother responded by admitting her move to Wichita and denying she had interfered with Father's custody rights. She filed her own motion for a modification of the decree, alleging the following constituted a substantial change of circumstances: the physical custody arrangement had "not worked to the satisfaction of either party," Father had not paid his share of Cody's transportation between Wichita and Father's home in Carthage, and Father had enjoyed "a substantial increase" in income since the original decree. 2
Mother requested the court modify the physical custody arrangements by reducing to one the number of weekends a month Cody was to be with Father and reducing Cody's time with Father in the summer to two uninterrupted weeks in June and two uninterrupted weeks in August; asked that responsibility for transporting Cody be modified so that Father would bear the expense of picking up Cody at the beginning of each period Cody was to reside with him and Mother would pay for Cody's return to her; and requested child support be recalculated in accordance with Rule 88.01.
On March 2, 1994, the court conducted a hearing on the motions. Nine witnesses, including Mother and Father, testified, primarily about the parties' on-going strife over implementation of Cody's physical custody arrangements.
Each party submitted a Form 14, Presumed Child Support Amount. The calculations were virtually identical, the one significant difference being the amount assigned to item 4b, "Custodial parent's reasonable work-related child care costs." Mother's Form 14 set the item 4b amount at $280 a month; in support of that figure she placed into evidence a paid check for $70 to her baby sitter representing one week's child care expense. 3 Father's item 4b figure was $160. His evidentiary support for that amount consisted of the following:
The differing item 4b entries resulted in a $57 dollar difference in the parties' presumed child support amounts. Father's obligation, according to Mother's calculations, was $297 a month; under Father's calculations, his obligation was $240 a month.
Mother offered no evidence to support her claim that Father had experienced "a substantial increase" in income since the date of the original decree. Father admitted his income had "gone up--not very much" since 1992, but he said he could not estimate how much it had risen.
Mother testified the drive between Wichita and Carthage took "three and a half or four hours, depending on traffic." Father testified he would like to have Cody with him for longer periods of time on fewer occasions than called for under the original decree, "before he starts school."
The trial court modified the physical custody arrangements and Father's child support obligation. Under the revised decree, Cody is to be with Father from 9 p.m. on the 9th day of each month until 5 p.m. on the 20th of each month. The court revised the holiday schedule, including a provision that in even numbered years Cody is to be with Father on Labor Day and the immediately preceding weekend, from 9 p.m. on the Wednesday prior to Thanksgiving to 5 p.m. on the Sunday after Thanksgiving, and from an unspecified hour on December 20 until 5 p.m. December 24. In odd numbered years Cody is to be with Father on Memorial Day and the immediately preceding weekend and from 9 a.m. on December 25 until 5 p.m. the following January 1. The court ordered Father to provide transportation at the beginning of all periods when Cody is to be with him; Mother shall provide transportation at the end of each such period.
The court revised Father's child support obligation to $208 a month and terminated the June and August abatement. In its revised decree, the court stated, "After considering all factors in 452.340, the Court finds that the application of the guidelines on child support would be unjust or inappropriate in this case."
Mother raises four points on appeal. In Points I and II she contends there is no evidence to support the modification of the monthly child support award to $208, and she complains because the court did not explain how it arrived at that amount.
Rule 88.01 provides in pertinent part:
See also § 452.340.8, RSMo Supp.1989. 4
Rule 88.01 and § 452.340.8 require only what they say; the rule and statute do not require the trial court to enter written findings that state its reasons or recite the numbers it used to calculate the child support award. Cohen v. Cohen, 884 S.W.2d 35, 39 (Mo.App.1994). 5
Although Rule 88.01 and § 452.340.8 do not require the trial court to state the reasons for its finding or reveal its calculations, principles of appellate review require there to be support in the record for a trial court finding that the presumed amount is unjust or inappropriate; we review that finding under the familiar standard of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). Hamilton v. Hamilton, 817 S.W.2d 937, 940 (Mo.App.1991). Following such a finding, the trial court is to determine the award based on consideration of all relevant factors including those enumerated in § 452.340 and Rule 88.01. We review the award for abuse of discretion. Hamilton, 817 S.W.2d at 940.
The record supports a finding that the presumed amount, by either parents' calculation, was unjust or inappropriate. The only difference in the parties' Form 14 work sheets was the dollar amount assigned to item 4b, "Custodial parent's reasonable work-related child care costs," which translated into differing presumed child support amounts. Each party completed the form based on the premise that Mother would have sole physical custody of Cody. However, under the revised joint physical custody order, Cody is to reside with or be under the care and supervision of Father for eleven days of each month, in addition to various holidays. The physical custody arrangement supports a finding that a presumed child support amount premised on an assumption of sole physical custody in one parent was unjust or inappropriate.
The version of Form 14 that became effective April 1, 1994, less than one month after the trial court entered its revised decree, explicitly recognizes the need for an adjustment of the presumed amount of child support in a situation such as the one in this case. Comment D to the current Form 14 states, in part, "An adjustment to the presumed child support amount may be appropriate when the child or children spend substantial time with both parents."
Recalling our standard of review, we note the Hamilton court's observation, "It is apparent that the party against whom the presumption operates must adduce evidence to show that application of the relevant factors supports a finding that Form 14 should not be used." 817 S.W.2d at 940. While we do not disagree with the burden of proof aspects of this statement, we do not believe a finding that the Form 14 presumed child support amount would be unjust or inappropriate should be limited to situations such as the one in Hamilton in which the noncustodial parent presented evidence that the presumed amount of child support was unjust because of her limited earning capacity and excessive expenses. In the instant case, the court made a monthly child support award lower than either party's Form 14 presumed amount in order to accommodate a custody arrangement not contemplated by the parties in the completion of their Form 14's. The nature of the physical custody arrangement provides support in the record for the...
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