Rozelle v. Rozelle

• Decision Date: 14 September 2010
• Docket Number: No. ED 94167,ED 94235.,ED 94167
• Citation: 320 S.W.3d 225
• Parties: Brian ROZELLE, Respondent/Cross-Appellant,v.Vickie ROZELLE, Appellant/Cross-Respondent.
• Court: Missouri Court of Appeals

320 S.W.3d 225

Brian ROZELLE, Respondent/Cross-Appellant,v.Vickie ROZELLE, Appellant/Cross-Respondent.

Nos. ED 94167, ED 94235.

Missouri Court of Appeals,

Eastern District,

Division Five.

Sept. 14, 2010.

Vickie Rozelle, St. Louis, MO, for appellant.

Tonya McAlpine-Morris, St. Louis, MO, for respondent.

Before: GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.

PER CURIAM.

Introduction

Vickie Rozelle (Mother), pro se, and Brian Rozelle (Father) appeal from the trial court's judgment. Mother argues the trial court erred in finding the parties' older son, Brian L. Rozelle II (Brian), emancipated at the age of twenty-two and in ordering her to repay support Father paid for Brian in the amount of $5,709.42. Father contends the trial court erred in its calculation of the repayment amount and in failing to terminate child support for the parties' younger son, Brandon J. Rozelle (Brandon), who was enrolled in an institute of higher education but taking fewer than 12 credit hours per semester. With respect to Father's appeal, we affirm the judgment of the trial court, with modifications. As to Mother's appeal, we have reviewed her contentions and find no error. An extended opinion as to Mother's appeal would have no precedential value. Therefore, Mother's appeal is affirmed in accordance with Rule 84.16(b). We have furnished the parties a memorandum setting forth the reasons for this decision.

Background

The parties' marriage was dissolved in 2000. The dissolution judgment awarded primary physical custody to Mother and joint legal custody to Mother and Father, and gave Mother sole decision-making authority as to the children's educations. The dissolution judgment ordered Father to pay $861.00 per month for support of the two children born of the marriage: Brian, born on March 8, 1985, and Brandon, born on July 25, 1989. In the event that Father was required to pay support for only one child, the sum would be $627.00 per month. Mother filed for an income-withholding order.

Brian

In 2003 Brian timely entered a post-secondary institution of higher education as a full-time student, enrolling in and successfully completing a minimum of 12 credit hours per semester until he graduated in December 2008, at the age of twenty-three. Brian turned twenty-one years old on March 8, 2006. As best this court can discern from the trial court docket sheet, in March 2009 Father filed an affidavit for termination of child support for Brian, to which Mother objected.¹ On July 9, 2009, the trial court terminated child support for Brian, preliminarily giving his emancipation date as March 8, 2006, the date he attained the age of twenty-one. The amount of overpayment of child support remained contested, and the issue was set for further hearing.

Thereafter, Mother argued that Brian did not emancipate until the age of twenty-two. She noted that the 2007 statutory amendment to Section 452.340.5 RSMo ² lowered the emancipation age to twenty-one for minor children attending an institute of higher education, but argued that the court should apply the statute in effect at the time of the dissolution, which provided for emancipation at the age of twenty-two. She further asserted that because Brian emancipated on his birthday, she gave Father “actual notice” of Brian's eventual emancipation date on the day he was born. She argued that because Father was aware of Brian's twenty-second birthday, she should not be obligated to give Father additional notice of Brian's emancipation on that date. She did not deny Father's assertion that she failed to submit to Father a sworn statement or affidavit notifying him of Brian's emancipation. Likewise, she contended that because Father continued to provide support for Brian after knowing that Brian was twenty-two and therefore emancipated, Father's overpayments should be considered gifts.

To support his request for termination, Father argued that the age of emancipation is governed by the statute in effect at the time of the claimed emancipation. Further, because Brian's emancipation could have occurred under several circumstances, Mother's duty to notify Father of the emancipation is never waived. Any payments made following Brian's emancipation were not voluntary gifts, because, due to the wage withholding order, child support was automatically deducted from his paychecks and Father could not unilaterally terminate the wage-withholding order.

Brandon

Brandon reached the age of 18 on July 25, 2007. He timely enrolled for the Fall 2007 semester in an institution of higher education. Brandon enrolled in 14 credit hours; however, in his first semester he completed only 8 credit hours. Brandon thereafter continued attending an institute of higher education, enrolling in at least 12 credit hours each semester, but completing 9 credit hours in his Spring 2008 semester, 12 credit hours in his Fall 2008 semester, and 9 credit hours in his Spring 2009 semester.

In April 2009 Father filed an affidavit for termination of child support for Brandon. In response, Mother argued that the 2007 amendment to Section 452.340.5 provides that when a child receives failing grades in half or more of his course load, child support may be terminated. Accordingly, applying the 2007 amended statute, because Brandon had enrolled in 12 credit hours per semester and completed 8-12 credit hours, he had fulfilled the requirements for continued child support under the amended law. Section 452.340.5.

Trial Court's Order/Judgment

On November 16, 2009, the trial court determined Brian reached the age of emancipation on March 8, 2007, his twenty-second birthday. The court noted that Section 452.370.4 mandates that the parent receiving support “s hall” have the duty to notify the paying parent of a child's emancipation; and that if the parent receiving support fails to do so, then he or she “s hall” be liable for any support paid following emancipation, plus interest. Because Mother did not notify Father when Brian emancipated, she was liable for any overpayments. Accordingly, the court ordered mother to reimburse Father in the amount of $5,238.00 for child support paid for Brian between April 2007 and June 2009, plus 9% interest in the amount of $471.42. The court reached this amount by subtracting $627.00 from $861.00, to reach the amount of $194.00 per month, multiplied by 27 months (April 2007 through June 2009).

As to Brandon, the court denied Father's request to terminate child support. The court noted both (1) the statutory language providing that child support shall continue “so long as” the child enrolls for and completes at least 12 credit hours per semester, and (2) the discretionary language, added in the 2007 statutory amendment, providing that the support “may” be terminated if the child received failing grades in 50% or more of his courseload. See Section 452.340.5. Further noting Missouri's public policy of promoting the pursuit of higher education and Brandon's continuing efforts to complete his undergraduate degree, the court used its discretionary authority to hold that Brandon would not be emancipated until his twenty-first birthday.

Both parties timely appealed.

Standard of Review

Our review of a trial court's Judgment granting a motion for emancipation and termination of child support is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), under which we must affirm the trial court's judgment 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. Kerr v. Kerr, 100 S.W.3d 912, 914 (Mo.App. W.D.2003). Further, we view the evidence in a manner favorable to the judgment and disregard contrary evidence, and we defer to the trial court even if the evidence could support a different conclusion. Wynn v. Wynn, 738 S.W.2d 915, 918 (Mo.App. E.D.1987). The party seeking emancipation has the burden of showing facts that prove emancipation. Wilkins v. Wilkins, 300 S.W.3d 594, 598 (Mo.App. E.D.2009). No deference is owed, however, to the trial court's statutory construction, which we review de novo. See Finnegan v. Old Republic Title Co. of St. Louis, Inc., 246 S.W.3d 928, 930 (Mo. banc 2008).

Discussion

Point I

In his first point on appeal, Father asserts the trial court made a mathematical error in its repayment order. The trial court ordered Mother to repay the difference between $861.00 per month for two children and $627.00 per month, which it characterized as $194.00 per month, for 27 months plus 9% interest, for a total of $5,709.42.

Pursuant to Missouri Rule of Civil Procedure 84.14, the court of appeals may dispose of a case by giving “such judgment as the court ought to give.” Accordingly, when an error is merely mathematical in nature, this court can modify the judgment to correct the error and then affirm the judgment of the trial court as modified. Mo. R. Civ. P. 84.14 (2010); Andrews v. Andrews, 289 S.W.3d 717, 726 (Mo.App. E.D.2009). We will recalculate the proper reimbursement amount, and enter judgment accordingly. The difference between $861.00 and $627.00 is $234.00. That amount multiplied by 27 months is $6,318.00. Father has not alleged error in the trial court's method of calculating interest; thus, we adopt the same method and calculate a total of $6,886.62: $6,318.00 plus 9% simple interest.³ Thus, Mother shall repay to Father $6,886.62 for his overpayment of child support following Brian's emancipation.

Point granted.

Point II

In his second point on appeal, Father argues that the trial court erred in finding that Brandon will not emancipate until his twenty-first birthday even though he failed to complete 12 credit hours at the end of his first semester. We disagree.

The foremost rule of statutory interpretation is to ascertain the intent of the legislature from the language used, by considering the words in their plain and ordinary sense. S. Metropolitan Fire Protection Dist. v. City of...