Nelson v. Nelson

• Citation: 25 S.W.3d 511
• Parties: (Mo.App. W.D. 2000) Cassandra L. Nelson, Respondent, v. Michael A. Nelson, Appellant. WD57071 0
• Decision Date: 14 March 2000
• Court: Court of Appeal of Missouri (US)

25 S.W.3d 511 (Mo.App. W.D. 2000)

Cassandra L. Nelson, Respondent, v. Michael A. Nelson, Appellant.

WD57071

Missouri Court of Appeals Western District

03/14/2000

Appeal From: Circuit Court of Jackson County, Hon. W. Stephen Nixon

Counsel for Appellant: Philip F. Cardarella

Counsel for Respondent: H. George Lafferty, Jr.

Opinion Summary: Michael A. Nelson appeals the circuit court judgment dissolving his marriage to Cassandra L. Nelson, with respect to its division of the parties' marital property and award of child support.

Division III holds:

In Point I, the husband claims that the trial court erred in not awarding the parties an equal share of the marital property. Specifically, he claims that the evidence was insufficient to support an award of 70 percent of the marital property to the respondent, contending that there is a presumption favoring an equal division, which was not rebutted. In general, the division of marital property need not be equal, but must only be fair and equitable given the circumstances of the case. The issue here is whether the evidence was sufficient to support the unequal division of the parties' marital property as being fair and equitable. A careful review of the record indicates that there was sufficient evidence to support a disproportionate division of the marital property to the respondent, based on the factors found in section 452.330.1.

In Point II, the husband claims that the trial court erred in awarding the wife more than 70 percent of the marital property due to his marital misconduct because such an award was punitive in nature, in violation of section 452.330, and was contrary to the Missouri Constitution and in conflict with his rights guaranteed by the United States Constitution.

Under section 452.330.1(4), the trial court is required to consider the parties' conduct during the marriage when dividing the marital property. Although it is not a legitimate basis for "punishing" a party when dividing marital property, marital misconduct is a factor in property division when the offending conduct places extra burdens on the other spouse. However, it is only when misconduct of one spouse changes the balance so that the other must assume a greater share of the partnership load that it is appropriate that such misconduct can affect the distribution of property. The trial court, in disproportionately dividing the marital property, based in whole or in part on marital misconduct, is not "punishing" the offending spouse, but is compensating the aggrieved spouse for the extra burden placed on the spouse and the marriage by the offending spouse's misconduct. The husband does not carry his burden of rebutting the presumption that the trial court's division was correct as to other relevant factors because he does not point to anything in the record that rebuts the presumption that the trial court followed the law in dividing the marital property. As to the husband's constitutional arguments, although he cites generally to the Missouri and United States Constitutions in support of his contentions, he does not provide the court with any specific case citations to support his claims raised in this point or explain the absence thereof. Under Rule 84.04, the court is not required to review a claim on appeal if it appears without citation of applicable or relevant authority. As such, it would not address these claims.

In Point III, the husband claims that the trial court erred in awarding child support for one child of $456 per month, as being the PCCSA, because, in calculating this amount pursuant to Civil Procedure Form No. 14, as required, it included $551 in "additional child rearing costs," which amount was not supported by the evidence. The record reflects that the $551 was comprised of $111 for "health insurance cost" for the minor child, found at Line 6c of the form, and $440 for an "extraordinary expense," as found at Line 6e.

There is no dispute between the parties that the $111 included in the trial court's Form 14s represented the husband's proportionate share of the cost of the health insurance she was ordered by the court to carry for the benefit of the parties' minor child. The husband contends that it was error for the court to include this amount in its Form 14 calculations because he was also ordered to provide health insurance at his own expense and the evidence did not support the court's ordering both parties to carry health insurance. Under section 454.603.7, RSMo Supp. 1997, the trial court has the discretion to order that both parties provide the child with health insurance benefits. Giving the language of the statute its plain and ordinary meaning, nothing requires a showing of extraordinary circumstances before ordering both parents to maintain health insurance on a child, as the appellant contends. As such, the trial court's inclusion of $111 in its Form 14 calculations as a health insurance cost of the respondent was not error on the basis claimed by the appellant.

The husband also claims in this point that the trial court erred in including in its Form 14 calculation $440 in extraordinary child rearing costs without sufficient evidentiary support for the same. A thorough review of the record revealed no evidence to support the trial court's inclusion in its calculations of $440 in extraordinary child rearing costs for private schooling. The only evidence regarding school expenses was found in the wife's income and expense statement, in which she listed $200 for "school and books" and $30 for "school lunches." The statement does not indicate the time period for which the expenses were effective nor does it indicate if they were averaged over twelve months or were for the nine months of the school year, etc. Because the record is insufficient for the court to determine the correct calculations, it is required to reverse the trial court's award of child support and remand with instructions for it to recalculate the PCCSA, pursuant to Form 14, and make specific findings supporting the inclusion of any amount for extraordinary expenses for private schooling.

In Point IV, the husband essentially makes the same claim he makes in Point III, that the trial court's Form 14 calculations were incorrect because they included $551 in extraordinary child rearing costs which were not supported by the evidence, except with respect to its retroactive award of child support. Because the court found in Point III that the Form 14 calculations by the trial court were not supported by the record, the trial court's retroactive award based thereon was also in error, requiring reversal. As such, on remand, after recalculating its prospective award of child support, the trial court is required, based on its recalculation, to determine the correct retroactive award.

Edwin H. Smith, Presiding Judge

Michael A. Nelson appeals the judgment of the Jackson County Circuit Court dissolving his marriage to the respondent, Cassandra L. Nelson, with respect to its division of the parties' marital property and award of child support.

The appellant raises four points on appeal. In both Points I and II, he claims that the trial court erred in not awarding the parties an equal share of the marital property. Specifically, in Point I, he claims that the evidence was insufficient to support an unequal division of marital property, and in Point II, he claims that such an award, based on his marital misconduct, was punitive in nature, in violation of section 452.330,¹ and was contrary to the requirements of Missouri Constitution Article 22(a) and in conflict with his rights guaranteed to him by the First, Fifth, Ninth and Fourteenth Amendments to the United States Constitution. In Point III, the appellant claims that the trial court erred in awarding child support for one child of $456 per month as being the presumed correct child support amount (PCCSA) because, in calculating this amount pursuant to Civil Procedure Form No. 14, as required, it included $551 in "additional child rearing costs," which amount was not supported by the evidence. In Point IV, he claims that the trial court erred in awarding the respondent retroactive child support for two children in the PCCSA of $574 per month because, as claimed in Point III, this amount was not supported by the evidence.

We affirm in part and reverse and remand in part.

Facts

The parties were married on April 12, 1974. There were two children born of the parties' marriage, Michael A. Nelson II, born February 11, 1979, and Michaela A. Nelson, born August 31, 1987.

On February 17, 1994, the parties separated, and the respondent filed her petition for dissolution of marriage on January 21, 1997, alleging that the marriage was irretrievably broken. In her petition, the respondent requested the court to, inter alia, dissolve the marriage; award her custody of the two children, child support and maintenance; and divide the property. On April 22, 1997, the appellant filed his answer and cross-petition for dissolution, requesting the court to, inter alia, dissolve the marriage, grant him joint custody of the children, and divide the property. The respondent filed her answer to the appellant's cross-petition on May 9, 1997.

The trial court heard the case on May 13, 1998, and issued its judgment on December 4, 1998, inter alia, dissolving the marriage; awarding joint legal and physical custody of the minor children to the parties; awarding child support to the respondent of $574 per month for the two children, including retroactive support of $7,980; ordering both parties to maintain health, dental and vision insurance for the children; awarding maintenance; and dividing the property. The court also ordered the appellant to pay "education expenses" for secondary school, including payments for "musical training and lessons, school programs and sports activities," and for college expenses.

On December 30, 1998, the appellant filed his "...