Ponce v. Ponce

• Decision Date: 25 March 2003
• Docket Number: No. WD 61022.,WD 61022.
• Citation: 102 S.W.3d 56
• Parties: Christine Ann PONCE, Appellant, v. Armando Borja PONCE, Respondent.
• Court: Missouri Court of Appeals

Page 56

102 S.W.3d 56

Christine Ann PONCE, Appellant, v. Armando Borja PONCE, Respondent.

No. WD 61022.

Missouri Court of Appeals, Western District.

March 25, 2003.

COPYRIGHT MATERIAL OMITTED

Curtis G. Hanrahan, Jefferson City, MO, arguing on behalf of Appellant.

Thomas Mitchell Dunlap, Fulton, MO, arguing on behalf of Respondent.

Before JAMES M. SMART, JR., P.J., ROBERT G. ULRICH and RONALD R. HOLLIGER, JJ.

JAMES M. SMART, JR., Judge.

Christine Ann Ponce ("Mother") appeals the trial court's judgment granting Armando Borja Ponce's ("Father's") motion to modify child support.

Factual Background

The parties' marriage was dissolved on October 15, 1985. On the date of dissolution, the couple's three children were ages six, three, and two. The dissolution decree ordered, inter alia, that Father pay $1,000.00 per month to Mother for the support of the children. Twelve years later, in September of 1997, pursuant to administrative order and by the parties' consent, the court ordered Father's child support payment increased to $1,800.00 for the two younger children. The eldest child had been emancipated earlier and was no longer covered by the child support order. The two younger children were then still in high school and living with Mother full time.

Father filed this motion to modify four years later on August 22, 2001, asking the court to eliminate his obligation to pay child support or, alternatively, to reduce the amount of child support to $450.00 per month, to be paid directly to the children at $225.00 each. Father based his motion on the following allegations of changed circumstances: (1) the children were now attending college; (2) Father was paying all educational costs for the children; (3) the amount of time the children were spending in Mother's home was reduced; (4) the children were both working and contributing to their own expenses; and (5) Father was voluntarily contributing to the children's expenses on a monthly basis. Mother did not file a countermotion.

The two youngest children, Timothy, age 20, and Stefanie, age 19, had graduated from high school and were full-time resident college students. Timothy was in his second year at the University of Missouri — Columbia. Stefanie had just completed her first semester at Central Missouri State University in Warrensburg.

A hearing on the motion to modify was held on November 29, 2001. The evidence showed that the educational expenses for both children were being paid voluntarily by Father. No order had been issued by any court requiring Father to pay for the children's college education. There was evidence that, when the children were younger, the parties had entered into a verbal agreement that Father would pay for the children's college education. There was also evidence that Mother had agreed she would be willing to accept only $200.00 to $300.00 per month in child support while they were attending college.

Stefanie was staying at her mother's home in Fulton four days out of every week. Timothy customarily spent only a couple of days a month at his mother's while in school and stayed at his mother's home while on school breaks. The summer prior to trial, however, Timothy resided at the University while taking summer classes. Although Stefanie's college room and board had been fully paid, she traveled from Warrensburg home to Fulton on Thursday nights and stayed with her mother until Monday morning every week. She followed this schedule due to her part-time job in Fulton.

Timothy had obtained scholarships that paid for a large part of his expenses at the University of Missouri. He also had a job at the college bookstore. Father was paying all of Timothy's college expenses not covered by his scholarships, amounting to approximately $1,000.00 per semester. Father had also paid for Timothy's automobile, and sent Timothy $200.00 in spending money each month. Father was arranging to pay the extra costs for Timothy to study in Japan from March 28, 2002, to July 28, 2002.

Father also voluntarily paid for all of Stefanie's tuition, room and board, and books at college, which amounted to approximately 84,300.00 per semester. Father paid for Stefanie's automobile, and provided her with $200.00 a month in spending money. There was evidence that both children were capable of handling their own money; that neither parent monitored the money the children earned at their jobs; and that the children used that money at their own discretion for their own personal expenses.

The court found that the Form 14 presumed correct amount of child support to be paid by Father was $1,707.00, but specifically found that the presumed child support amount was unjust and inappropriate as to both children. The court then set the child support amount for Timothy at $500.00 per month to be paid directly to Timothy. With regard to Stefanie, the court ordered child support set at $854.00 per month, payable $500.00 directly to Stefanie and $354.00 to Mother.

Mother did not file a countermotion asking the court to order Father to continue paying the children's college education costs, but she did ask the court to do so at trial and indirectly in her motion for new trial. The court failed to issue such an order.

Mother appeals, arguing that the court erred in (1) reducing the child support amount based upon the fact that Father voluntarily pays the children's post-secondary educational expenses without also ordering Father to continue to pay those educational expenses, and (2) in ordering all or part of the child support to be paid directly to the children.

Standard of Review

This court will not disturb an order modifying a child support obligation unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Shiflett v. Shiflett, 954 S.W.2d 489, 492 (Mo.App.1997) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). The reviewing court defers to the trial court's determinations of credibility and views the evidence in the light most favorable to its decision. Haden v. Riou, 37 S.W.3d 854, 860 (Mo.App.2001). An award of child support is within the sound discretion of the trial court. Id. The appellate court will interfere with the award only if the trial court abused its discretion by ordering an amount that is "against the logic of the circumstances" or is "arbitrary or unreasonable." Ricklefs v. Ricklefs, 39 S.W.3d 865, 869 (Mo.App. 2001).

Deviation from Form 14 Presumed Correct Child Support Amount

First, Mother argues that the trial court erred in reducing the child support obligation below the Form 14 presumed correct amount because there was no showing that the presumed correct amount was unjust or inappropriate. She contends that the trial court failed to consider all the statutory factors in arriving at this decision.

In a proceeding for modification of child support, the provisions of the original judgment "may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable." § 452.370.1, RSMo 2000.¹ When the court determines that there has been such a showing, the statute then requires that "[t]he child support shall be determined in conformity with criteria set forth in section 452.340 and applicable supreme court rules." § 452.370.2.

Missouri Supreme Court Rule 88.01 establishes a two-step process to determine child support. Schriner v. Edwards, 69 S.W.3d 89, 92 (Mo.App.2002). Under the first prong, the court must determine and find for the record the presumed correct child support amount using Form 14. Id. at 92-93. In step two, the trial court may rebut the presumed correct child support amount as being unjust or inappropriate after consideration of all relevant factors. Id. at 93. "Step two permits the trial court to exercise its broad and sound discretion in the final determination of child support awards." Id.

Any deviation from the Form 14 amount must be supported by the evidence and a specific finding on the record that the presumed correct amount is unjust or inappropriate. See Umphenour v. Umphenour, 831 S.W.2d 764, 767 (Mo.App. 1992). Mother points out that Rule 88.01 requires the trial court to examine all relevant factors in arriving at an amount for child support, including the following specific statutory factors from section 452.340.1:

(1) The financial needs and resources of the child;

(2) The financial resources and needs of the parents (3) The standard of living the child would have enjoyed had the marriage not been dissolved;

(4) The physical and emotional condition of the child, and the child's educational needs;

(5) The child's physical and legal custody arrangements, including the amount of time the child spends with each parent and the reasonable expenses associated with the custody or visitation arrangements; and

(6) The reasonable work-related child care expenses of each parent.

Mother claims that the evidence rebuts the first four of these specific factors. Mother's brief does not address the final two statutory factors. Based on her analysis of the evidence, Mother concludes that the trial court "clearly did not properly examine each of those factors based upon the evidence adduced at trial." Mother's argument ignores the requirement that this court must defer to the trial court's determination of credibility and view the evidence in the light most favorable to its decision. Haden, 37 S.W.3d at 860.

The trial court clearly did consider all relevant factors, including the statutory factors. The court made specific, detailed findings with regard to the financial resources and needs of the parents; the financial needs and resources of the children; the physical and emotional condition of the children; the children's educational needs; and the children's physical and legal custody arrangements, especially with regard to the amount of time the children spend with each parent...