Ritter v. Ritter

• Decision Date: 16 April 1996
• Docket Number: Nos. WD,s. WD
• Parties: Rhonda K. RITTER, Respondent, v. Dwight K. RITTER, Appellant. Rhonda K. RITTER, Respondent, v. Dwight K. RITTER, Appellant. 51113, WD 51414.
• Court: Missouri Court of Appeals

Page 151

920 S.W.2d 151

Rhonda K. RITTER, Respondent, v. Dwight K. RITTER, Appellant.

Rhonda K. RITTER, Respondent, v. Dwight K. RITTER, Appellant.

Nos. WD 51113, WD 51414.

Missouri Court of Appeals Western District.

Submitted Jan. 11, 1996.

Decided April 16, 1996.

Appeal from the Circuit Court of Lafayette County; The Honorable Robert H. Ravenhill, Judge.

James D. Worthington, Lexington, for appellant.

Allen S. Russell, Kansas City, for respondent.

Before HANNA, P.J., and SMART and ELLIS, JJ.

SMART, Judge.

Dwight K. Ritter appeals from the trial court's judgment in this dissolution case, challenging the court's orders as to maintenance, child support and division of property. Rhonda Ritter filed a motion for attorney's fees on appeal, which was granted. Dwight Ritter also filed a notice of appeal from the order awarding attorney's fees on appeal. These cases have been consolidated.

The judgment is reversed and the case is remanded.

On June 4, 1976, Dwight ("husband") and Rhonda ("wife") were married. Husband has farmed many years. Wife worked part-time as an art teacher. She also operated a flower shop. During the marriage they had two children, Austin, born on April 11, 1979, and Ashlynn, born on July 23, 1980.

On July 16, 1993, wife filed a petition for dissolution of marriage. During the three-day hearing, wife testified that the irretrievable breakdown of the marriage occurred when she discovered husband had been engaged in seriously immoral and criminal conduct. The character of Husband's conduct is not disputed by the parties. Wife also testified that husband had a history of cruelty and physical abuse during the marriage.

Prior to trial, the parties agreed to a split custody arrangement involving Austin and Ashlynn. Wife was to have primary physical custody of Ashlynn and husband was to have primary physical custody of Austin. The parties agreed to maintain joint legal custody of both children. The trial court accepted the parties' agreement and incorporated it in the dissolution decree issued February 17, 1995. In the decree, the trial court awarded wife maintenance in the amount of $500.00 per month, retroactive to January 1, 1994, and child support in the amount of $829.00 per month. Wife's request for attorney fees was denied. On February 28, 1995, the trial court issued a corrected decree of dissolution to clarify some discrepancies in the initial decree. Husband appealed. Wife filed a motion for attorney fees on appeal, which was granted. Husband also appeals from this order of the trial court.

Retroactive Maintenance

In Point I, husband claims that the trial court erred in awarding retroactive maintenance because the ruling was not statutorily authorized by § 452.335, RSMo 1994. ¹ Husband argues that the trial court exceeded its authority and erroneously applied the law. This court will affirm the trial court's order unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Deference is given to the trial court's credibility determinations, and the evidence and permissible inferences to be drawn therefrom are viewed in the light most favorable to the trial court's order, disregarding all contrary evidence. Boudreau v. Benitz, 827 S.W.2d 732, 733 (Mo.App.1992).

Husband's reported taxable income varied greatly in 1993 from that of the several preceding years. In 1993, he reported income of $135,980. For 1990, 1991, and 1992, his income ranged between $12,000 and $16,000. Apparently, his 1993 income represented a capture of growth and appreciation in value of livestock and crops sold in that year.

The trial court awarded wife "maintenance against Respondent in the sum of $500.00 per month retroactive to January 1, 1994." Section 452.335 authorizes an award of maintenance in a divorce decree. However, this section has been interpreted by Missouri courts to apply prospectively, not retrospectively. Kessler v. Kessler, 719 S.W.2d 138, 140 (Mo.App.1986); C.M.D. v. J.R.D., 710 S.W.2d 474, 479 (Mo.App.1986). "[A]s a matter of law, a maintenance award ordered in the decree of dissolution cannot be made retroactive." Woolsey v. Woolsey, 904 S.W.2d 95, 98 (Mo.App.1995). Thus, the trial court's award of retroactive maintenance is reversed. Point I is granted.

Child Support

In Point III, husband claims the trial court erred in its award of retroactive and prospective child support. Husband claims that the court: (1) improperly refused to admit or consider the Form 14 calculation of presumed child support proffered by husband; (2) failed to show its calculation of child support by preparation of a Form 14; (3) failed to acknowledge husband's unusual, nonrecurring sale of assets and payment of debts was not ordinary income for calculation of child support; (4) failed to acknowledge the additional income actually earned by wife as well as impute the income to her which she had (and has) the ability to earn; and (5) failed to make a proper calculation of child support for a split custody case. As a result of these alleged errors by the trial court, husband contends, the court's order is not supported by substantial evidence, is against the weight of the evidence, and erroneously declares and applies the law.

Rule 88.01(e) establishes a rebuttable presumption that child support calculated pursuant to Form 14 is the amount to be awarded by the trial court. This presumption is overcome when the trial court makes a written or specific finding on the record that the Form 14 amount is unjust or inappropriate. Scoggins v. Timmerman, 886 S.W.2d 135, 139 (Mo.App.1994).

Wife presented two Form 14's for the trial court's consideration in view of the proposal for split custody--one form related to the support of the daughter, and one form related to the support of the son. On the first Form 14, wife, utilizing husband's 1993 income, calculated the amount of child support husband would be required to pay for support of his daughter, who is in her mother's custody, $1,146.00. The second Form 14 prepared by wife showed the amount wife would be required to pay for her son, who is in his father's custody, $117.00. After considering both Form 14 amounts, wife requested the court award her $1,029.00 per month child support. Husband also attempted to admit two Form 14's into evidence. However, the trial court rejected husband's forms because he based his income on an average of the 1990, 1991, and 1992 earned income, completely excluding the $135,980 of income husband reported in 1993. The trial court awarded wife $829.00 child support for her daughter. The court did not include a completed Form 14 in its order, nor did it refer to a Form 14 in the decree. The record does not reflect (1) the income amounts the trial judge used in calculating the child support award; (2) the Form 14 calculation; or (3) the manner in which the trial court considered the split custody circumstance in its determination.

Although we assume the trial court calculated child support in the correct manner under Rule 88.01, we are unable to review the court's calculation. We know the trial court did not disregard the 1993 income in determining husband's earning ability, but we do not know what the trial court determined husband's reasonable earning capacity to be. Therefore, we must reverse the award and remand the case to the trial court with instructions for the trial court to either make an award of child support based on the correct Form 14 amount as found by the court or make a specific finding that the Form 14 amount is unjust or inappropriate and to award the appropriate amount. Woolridge v. Woolridge, 915 S.W.2d 372, 381-82 (Mo.App.1996). In that case this court held that:

[U]nder Rule 88.01 the trial court in all cases involving the award of child support is required to determine and find for the record the presumed correct child support amount calculated pursuant to Civil Procedure Form No. 14. The determination and finding of the amount can be done by either accepting for the record a Form 14 amount calculated by a party, or in the event it "rejects" the Form 14 amounts of the parties as being incorrect, doing its own Form 14 calculation. The trial court can do its own Form 14 calculation by either completing a Form 14 worksheet and making it a part of the record, which we recommend as the most efficient and surest way of preserving the record, or by articulating on the record how it calculated its Form 14 amount. Required findings for the record can be done by separate written findings, findings in the judgment entry, or by oral findings on the record.

The comments to Form 14 describe in detail how to calculate the child support obligation in a split custody case as follows:

In [split custody cases], the support amount is calculated by using two Forms 14. A Form 14 is completed for the number of children in the custody of one parent, using all income data and deductions for each parent, and disregarding the child(ren) in the custody of the other parent. The expenses that are in addition to the presumptive child support amount and that are entered on line 4b, 4c, 4d or 4e should be only for the child(ren) for whom the support amount is being calculated. In those instances where one parent is providing the costs of an item for all children, i.e., health insurance, the gross amount of such cost is to be prorated among the children for purposes of completing the form. The same process is then to be undertaken for the other parent. After completion of the multiple Form 14 worksheets, subtract the lesser amount from the greater. Use the difference between these two obligations as the child support order payable by the parent with the larger of the two obligations.

The court may inform counsel of the figures which the court believes are applicable, and ask counsel to complete the Form 14's. If the...