Nevins v. Green
| Decision Date | 24 August 2010 |
| Docket Number | No. WD 71750.,WD 71750. |
| Citation | 317 S.W.3d 691 |
| Parties | Dudley O. NEVINS, Respondent,v.Felicia A. GREEN, Appellant. |
| Court | Missouri Court of Appeals |
COPYRIGHT MATERIAL OMITTED
Felicia A. Green, Appellant Pro-se.
Sandra G. Hessenflow, for Respondent.
Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
Felicia Green (“Mother”) appeals the trial court's judgment determining paternity, child custody, and child support. In her five points on appeal, Mother claims that the trial court erred in: (1) including a 29% overnight visitation adjustment in its retroactive child support order; (2) awarding Dudley Nevins (“Father”) an excessive overnight visitation adjustment; (3) awarding Father a $354.00 credit based on health insurance expenses; (4) awarding Father the dependent tax exemption every other year; and (5) accepting a parenting plan that Mother had not approved. The judgment is reversed and remanded in part and affirmed in part.
Mother and Father's child (“Daughter”) was born on July 2, 1998. Mother and Father were never married and never lived together. Daughter has primarily resided with Mother for her entire life. For the first nine years of Daughter's life, Mother and Father worked out an arrangement by which Father had overnight visitation with Daughter on Wednesdays and Fridays. During this period of time, the parties did not have a court-ordered visitation or custody arrangement, and neither Father nor Mother had been ordered to pay child support.
In March of 2008, Mother filed an administrative case seeking child support from Father. At the time Mother filed the case, Father's overnight visitation with Daughter ceased. In April of 2008, the Family Support Division ordered Father to pay $601.00 per month in child support and ordered Father to maintain health insurance for Daughter.
On July 3, 2008, Mother was served with Father's petition for determination of paternity, child support, and child custody. Mother and Father settled some issues prior to trial, leaving the amount of child support and the allotment of custody time as the primary issues before the trial court. Both parties agreed that they would have joint custody of Daughter and that Father would receive significant custody time. However, under Father's plan, his time with Daughter would be in larger blocks surrounding the weekends, and under Mother's plan, Father's days with Daughter were spread throughout the week and weekend. The trial court found that Mother's parenting plan was in the best interests of Daughter because it more closely resembled the visitation arrangement Daughter was already used to.
Both parties submitted Form 14s to the trial court. The trial court rejected Mother's Form 14 because it did not accurately calculate Father's overnight visitation adjustment and also rejected Father's Form 14 because it did not accurately reflect Mother's income. In its own Form 14, the court included a 29% overnight visitation adjustment for Father based on the number of days he would keep Daughter overnight. This resulted in a presumed child support amount of $315.00 per month. The trial court found that the amount was not rebutted as being unjust or inappropriate.
The trial court made the child support award retroactive to July 3, 2008, the date on which Mother was served with Father's petition. The court stated that it was aware that the award included a reduction for visitation that Father did not actually exercise during the pendency of the case. However, the court found that a retroactive overnight visitation adjustment was nonetheless justifiable because the testimony at trial indicated that Mother would not allow Father to have the visitation he previously enjoyed during the pendency of the case. The retroactive application resulted in an overage of $3,432.00, and the court accepted Father's recommendation that the overage be used as a credit against his future child support obligations.
Although the administrative order required Father to enroll Daughter in a health benefit plan, Mother and Father agreed that Mother would provide health insurance for Daughter. However, Father testified that he would not be able to drop Daughter from his coverage for several months. Father also testified that his cost for health insurance coverage for himself and Daughter was $118.00 per month. The court divided that figure by two to determine the cost of providing coverage to Daughter and multiplied it by the number of months Father would have to pay for coverage until he could remove daughter from his plan. This resulted in $354.00 in expenses to Father, and the trial court found that Father was entitled to a credit of $354.00 toward his future child support obligations.
Lastly, the trial court's judgment included a paragraph which gave Mother the right to claim Daughter as a dependent on her federal and state income tax returns for even-numbered years and gave Father the same right for odd-numbered years. While this provision was included in Mother's parenting plan, when asked at trial whether it was correct that she did not have a problem with the court allocating the exemption to Father every other year, Mother responded, “No.” However, because the trial court adopted Mother's parenting plan, its judgment included the tax exemption provision.
This pro se appeal by Mother followed.
The judgment of the trial court in a paternity action will be affirmed on appeal unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. K.L.A. v. Aldridge, 241 S.W.3d 458, 460 (Mo.App. W.D.2007). The appellate court defers to the trial court's determinations of credibility and views the evidence and reasonable inferences drawn therefrom in the light most favorable to the judgment. Id.
In her first point on appeal, Mother contends that the trial court erred in including a 29% overnight visitation adjustment in its retroactive award of child support.1 The trial court justified the inclusion of the adjustment by stating that, although Father did not exercise visitation during the pendency of the case, the testimony at trial indicated that this was only because Mother denied visitation. Mother claims that this finding was against the weight of the evidence in that Father did not testify that Mother denied him visitation.
In determining an award of child support, the trial court must follow a two-step procedure. Ricklefs v. Ricklefs, 39 S.W.3d 865, 869-70 (Mo.App. W.D.2001). In the first step, the trial court must determine and find for the record the presumed child support amount (“PCSA”) in accordance with Form 14. Id. at 870. In the second step, “the court, after considering all relevant factors, must determine whether to rebut the PCSA as being unjust or inappropriate.” Id. In determining the PCSA, Line 11 of Form 14 provides for an adjustment for a portion of the amounts expended by the parent obligated to pay child support during periods of overnight visitation or custody. The Directions, Comments for Use and Examples for Completion of Form No. 14, Line 11, provide that the adjustment shall be calculated by multiplying the basic child support amount on Line 5 by a percentage “based on the number of periods of overnight visitation or custody per year awarded to and exercised by the parent obligated to pay support under any order or judgment.”
A trial court has discretion to order the effective date of a child support order at a time subsequent to the date of filing. Overstreet v. Overstreet, 214 S.W.3d 347, 348 (Mo.App. E.D.2007); see also § 452.340.1 (). However, Mother does not contend that the trial court may not make the child support award effective as of the date she was served with the petition but, rather, claims that the court erred in including the overnight visitation credit in the retroactive award because the inclusion of the credit was not supported by the evidence.
In applying the award of child support retroactively, the court noted that it was aware that the award including a reduction for visitation that Father did not actually exercise while the case was pending; however, the court found that there was testimony indicating that Mother would not allow Father to exercise the visitation he had previously enjoyed during the pendency of the case. Therefore, the court found that the inclusion of the credit in the retroactive award was proper in that it would be inequitable to allow Mother to gain financially for failing to allow Father to have visitation with Daughter while the case was pending. Mother claims that this finding is not supported by the evidence in that Father never testified that Mother denied him visitation.
In his brief, Father states that he testified that, once Mother filed the administrative child support case, Mother would not provide adequate visitation and that the visitation Mother did offer was very sporadic. The transcript pages Father cites for this testimony reveal that, when Father's attorney asked whether his visits with Daughter ceased after Mother filed the administrative case, Father simply responded, “Yes.” When Father's attorney asked whether his visits with Daughter had been sporadic during the last year, Father responded, “Very sporadic.” Father's attorney did not ask him why visitation had ceased, and at no point in his testimony did Father state that Mother had prevented him from seeing Daughter.2
Father points to other testimony which he alleges supports the court's finding that Mother denied him visitation. Father testified that he did not have an enforceable parenting plan during the pendency of this case, and there was evidence...
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