Potter v. Potter

• Decision Date: 08 November 2002
• Docket Number: No. 24465.,No. 24727.,24465.,24727.
• Citation: 90 S.W.3d 517
• Parties: Ann Heffernan POTTER, Petitioner-Appellant, v. Scott Ellis POTTER, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 517

90 S.W.3d 517

Ann Heffernan POTTER, Petitioner-Appellant, v. Scott Ellis POTTER, Respondent-Respondent.

No. 24465.

No. 24727.

Missouri Court of Appeals, Southern District, Division Two.

November 8, 2002.

Dennis Owens, Kansas City, MO, for appellant.

David V. Collignon, Ozark, MO, for respondent.

JAMES K. PREWITT, Presiding Judge.

This consolidated appeal follows the trial court's order modifying the child support obligations of Scott Ellis Potter ("Father") and an order sustaining Father's motion to quash garnishment. Ann Heffernan Potter ("Mother") raises five points on appeal, four alleging error in the modification of Father's child support and one alleging error due to the trial court's failure to provide a record of the hearing for the motion to quash garnishment.

On August 2, 1995, the trial court entered a decree dissolving the marriage between Mother and Father. The decree incorporated, in full, a marriage settlement agreement that specified, in part, that Father would pay Mother $2,250 per month as child support for their one minor child ("Child").

On January 16, 2001, Father filed a motion to modify child support. In his first amended motion to modify the decree, Father cited substantial and continuing changed circumstances, including a decrease in income; a recalculation of child support under Rule 88.01 that would result in a 20% or greater difference in child support from the original decree; and a change in the terms of the marital settlement agreement related to educational expenses, trusts, life insurance, visitation, and transportation due to his transfer to the Kansas City area and reduction in income.

On July 6, 2001, the trial court entered a judgment and decree of modification. The trial court found that a substantial and continuing change had occurred in the circumstances of the parties and the needs of Child, which made the terms of the original judgment unreasonable as it related to child support.

The judgment decreased Father's child support obligation, and he was ordered to pay $1,141 per month retroactive to February 1, 2001. The trial court also found that Father was in arrears $6,003.69 for maintenance and $21,313.31 for child support, which was adjusted for the retroactive modification. The judgment ordered the Missouri Family Support Center and the circuit clerk of Christian County to adjust the existing wage assignment to reflect a withholding of an amount equal to one month's current support plus an additional one half month's support for arrearages in child support and maintenance.

On July 12, 2001, the Missouri Division of Child Support Enforcement filed an order/notice to withhold income for child support, listing America's Best Contacts & Eyeglasses, Inc. ("America's Best") as the employer/withholder. The order/notice stipulated that $1,711.50 be withheld and paid to the Family Support Payment Center monthly, with $1,141 for current support and $570.50 for past-due support ($370.50 for child support arrearage and $200 for maintenance arrearage). On August 23, 2001, the trial court issued an execution/garnishment for service to America's Best.¹

Father filed a motion to quash the execution/garnishment on November 13, 2001, which referenced the amount that the trial court had established in the decree of modification to satisfy the maintenance and child support arrearages — one half of one month's total child support obligation. The motion further stated that the trial court had "previously established a sum to be withheld from [Father's] wages to satisfy support arrearages. Any additional garnishments will work an undue hardship upon [Father]." On December 18, 2001, the trial court sustained Father's motion to quash the August 23, 2001 execution/garnishment, discharging America's Best as garnishee.

Mother's first four points on appeal claim error in the trial court's order modifying Father's child support obligation. We will affirm the judgment of the trial court 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. Schottel-Lehde v. Schottel, 75 S.W.3d 359, 363 (Mo.App.2002). The determination to award a modification in child support lies within the discretion of the trial court, and the trial court's decision will be reversed only for abuse of discretion or misapplication of the law. Mann v. Hall, 962 S.W.2d 417, 419 (Mo.App.1998). We will set aside the judgment on the ground that it is against the weight of the evidence with caution and only if we have a firm belief that the judgment is wrong. Schottel-Lehde, 75 S.W.3d at 363.

As the trial judge is in a better position than this court to determine the credibility of the parties and witnesses, we grant the trial court due deference in that regard. Dimmitt v. Dimmitt, 849 S.W.2d 218, 220 (Mo.App.1993). If the determination by the trial court is supported upon any reasonable theory by the law and the evidence, this court must affirm. Hicks v. Hicks, 798 S.W.2d 524, 526 (Mq.App.1990). We consider all facts for which the trial court makes no specific findings to have been found in accordance with the result reached. Dixon v. Dixon, 62 S.W.3d 589, 596 (Mo.App.2001).

Mother and Father had a marital settlement agreement. Such an agreement, although contractual in nature and incorporated into the dissolution decree, may not preclude the trial court from modifying child support. See McCreary v. McCreary, 954 S.W.2d 433, 452 (Mo.App. 1997). Child support awards remain subject to modification until the trial court loses jurisdiction. Id.

A child support award may only be modified upon a showing of changed circumstances so substantial and continuing as to make the terms of the original award unreasonable. Mann, 962 S.W.2d at 420. Once the trial court makes a determination that the required level of changed circumstances has occurred, its primary concern is the best interests or welfare of the child. Dixon, 62 S.W.3d at 596; see also Brown v. Brown, 19 S.W.3d 717, 724 (Mo.App.2000). Father, as the party seeking modification, has the burden of proving that he is unable to support Child in the manner contemplated at the time the settlement agreement was incorporated into the dissolution decree. Brown, 19 S.W.3d at 724.

Directing our attention to Mother's specific points, in her first point, she claims that the trial court erred in modifying Father's child support obligation because Father failed to establish that any substantial or continuing changed circumstances occurred that made the original decree unreasonable. A change in the parties' financial circumstances or in a child's needs may evidence a showing of substantial and continuing change. Welker v. Welker, 902 S.W.2d 865, 867 (Mo.App. 1995).

Father argues that there was substantial evidence presented under which the trial court could have determined that there was no longer a need for Child to receive homeschooling. Mother and Father both testified that Child was not consistently homeschooled since the time of the original decree. Mother testified that the decision was made because Father had stopped paying the full child support amount.

Father admitted not paying the full amount. Father, an optometrist, was self-employed at the time of the original decree. From March 1997 to June 1998, he continued to be self-employed, but was required to set up a new practice because his lease had been cancelled. Father encountered financial difficulty during this time and was unable to send complete maintenance or support payments.

In terms of the home schooling timeline, in the spring of 1998, when Child would have be in the third grade, Mother enrolled him in the Ozark public school system. While in the Ozark system, he was placed in a one day a week pullout program for gifted students. Mother later transferred him to New Covenant Academy, a private school in Springfield, for the fourth grade. Mother testified that the private school was attempting to implement a more elaborate program for gifted students; however, that program never materialized and Child only had access to a one day a week program there as well.

Mother testified that, although she and Father agreed that she would resume homeschooling for Child, she was unable to because Father continued to be in arrears on child support. She attempted to homeschool Child part-time while she worked, but switched to full-time after she filed with the Missouri Division of Child Support Enforcement for collection of child support. At time of trial, Child was being homeschooled and ready to start the sixth grade; he was twelve years old.

Father testified to a similar timeline regarding when Child was or was not homeschooled. He further testified that, at the time of the original decree, he agreed with Mother that homeschooling was in Child's best interest. However, he felt that Child's educational needs could now best be met through either the Ozark public school system or by the New Covenant Academy, and that those needs were met when Child attended those institutions.

One of Mother's witnesses, Robert Roach, the Director of Gifted Education at Drury University, testified that, based on intelligence test scores, Child was considered profoundly gifted. Mr. Roach stated his opinion that in Ozark, where Child lived with Mother, the public school system did not have an adequate program to suit Child's educational needs.

According to Mr. Roach, the needs of a profoundly gifted child would best be met through a full-time program, whether that be private tutoring, public school, or private school. Mr. Roach agreed that, unless a parent was also profoundly gifted, there would be a point at which the child would surpass the teaching skills of the parent, which would occur at least by the time the child reached middle school age.

Mr. Roach indicated that the Springfield school district has a "near"...