Samples v. Kouts, WD

• Decision Date: 14 October 1997
• Docket Number: No. WD,WD
• Citation: 954 S.W.2d 593
• Parties: Thomas A. SAMPLES, Appellant, v. Susan J. (Samples) KOUTS, Respondent. 52790.
• Court: Missouri Court of Appeals

Page 593

954 S.W.2d 593

Thomas A. SAMPLES, Appellant, v. Susan J. (Samples) KOUTS, Respondent.

No. WD 52790.

Missouri Court of Appeals,

Western District.

Oct. 14, 1997.

Kevin P. Rotert, Gladstone, for appellant.

Alison K. Blessing, Carol Clifton Sevier, Withers, Brant, Igoe & Mullennix, P.C., Liberty, for respondent.

Before ULRICH, C.J., P.J., and LOWENSTEIN and SPINDEN, JJ.

ULRICH, Chief Judge, Presiding Judge.

Thomas A. Samples (Father) appeals the trial court's judgment modifying his child support obligation and awarding attorney's fees to Susan J. (Samples) Kouts (Mother). He claims the trial court abused its discretion in (1) increasing his child support obligation to $798 per month; (2) ordering the county clerk's records amended to eliminate the child support credit reflecting previous overpayments; and (3) awarding Mother's attorney's fees. The judgment of the trial court is affirmed in part and reversed and remanded in part.

FACTS

The marriage of Father and Mother was dissolved on April 26, 1979. Mother received custody of the two minor children born of the marriage subject to visitation by Father. Child support for both children was awarded in the amount of $150.00 per month paid through the Clerk of the Circuit Court of Clay County. The Decree of Dissolution was modified on January 3, 1986, changing child support to $75.00 per child payable every two weeks.

Following the modification in 1986, Father and Mother agreed privately to change the total child support payments from $150.00 to $200.00 per month. Father paid the $200.00 each succeeding month through the Clerk of the Circuit Court who recorded the extra $50.00 as a credit. Sometime in early 1993, the elder son enlisted in the military effective June 8, 1993.

In April 1993, Father, through his attorney, sent a letter to Mother suggesting the two enter into a joint stipulation acknowledging the elder son's enlistment and the cessation of child support for him. Father and Mother later privately agreed that Father would continue paying $200.00 despite the child's emancipation.

Father's attorney sent Mother an agreement in 1995 stipulating that both children were emancipated, but she refused to sign it. Father stopped paying child support in May 1995 and filed amotion for declaration of emancipation of the elder child in August 1995.

Father filed a Second Amended Motion for Declaration of Emancipation and Termination of Child Support on January 26, 1996, alleging that the older child became emancipated in June 1993 when he entered active military service. He requested that the child support of $75.00 for that child be terminated on May 25, 1996. Mother filed a First Amended Counter-Motion to Modify on March 7, 1996. The trial court modified Father's child support obligation for the younger son by increasing it to $798.00 per month on March 20, 1996. This appeal by Father followed.

STANDARD OF REVIEW

Substantial evidence must support the trial court's judgment, and it cannot be against the weight of the evidence or contrary to law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The evidence and credibility of the witnesses are viewed in the light most favorable to the trial court's decision. Buchanan v. Buchanan, 828 S.W.2d 946, 948 (Mo.App.1992). In the absence of a manifest abuse of discretion, an appellate court will not substitute its judgment for the trial court's. Holmes v. Holmes, 878 S.W.2d 906, 909 (Mo.App.1994).

I. MODIFICATION OF CHILD SUPPORT TO $798 USING MOTHER'S FORM 14

Father's first complaint on appeal concerns the trial court's use of Mother's Form 14 amount to compute his child support obligation. The claimed error focuses upon the accuracy of Mother's statement of her income. Father claims that the trialcourt erred in failing to reject Mother's Form 14 ¹ for her failure to include income or to deviate from the presumed child support amount based upon Mother's Form 14 figures due to various factors. The trial court determines which Form 14 items and their respective amounts are properly included in the calculation based on the Directions for Completion of Form 14 and the evidence presented. Hamilton v. Hamilton, 886 S.W.2d 711, 716 (Mo.App.1994). The trial court must reject any Form 14 if any item is incorrectly included in the calculation, an amount of an item included in the calculation is incorrect, or the mathematical calculation is incorrect. Woolridge v. Woolridge, 915 S.W.2d 372, 378 (Mo.App.1996). Once a Form 14 is adopted, the trial court will presume the child support amount identified in Form 14 is correct. § 452.340.7, RSMo.1994; R ULE 88.01; Woolridge, 915 S.W.2d at 378. Any party seeking a departure from an adopted Form 14 has the burden to show that the presumed child support amount is unjust or inappropriate after consideration of all relevant factors. Elliott v. Elliott, 920 S.W.2d 570, 577 (Mo.App.1996). If the trial court deviates from the amount in an adopted Form 14, the trial court or agency must explain why the deviation from the amount is appropriate by entering in the case a written finding or a specific finding on the record after consideration of all relevant factors. RULE 88.01; Hamilton, 886 S.W.2d at 716. If the trial court does not adopt either party's Form 14 but rejects them, then it has a duty under the rule to calculate its own Form 14. Woolridge, 915 S.W.2d at 381. A reviewing court will review the Form 14 used by the trial court to ensure it is accurate and supported by substantial evidence. Id. at 380.

A. MOTHER'S THREE-MONTH GROSS INCOME FOR 1996 WAS NOT THE PROPER PREDICTOR OF HER FUTURE SALARY

Father first claims that the trial court erred in computing Mother's adjusted gross monthly income by basing her future income on income earned during the first three months of 1996 and by failing to include annual bonuses previously received by Mother. The record reflects that several discrepancies existed in Mother's Form 14. Her monthly gross income entry on line 1 of Form 14 as reflected in her W-2 statement, should have been listed as $2,658 rather than $2,337.00. ² This discrepancy resulted from the trial court's reliance on Mother's monthly gross income in January through March of 1996, rather than her 1995 gross yearly income.

Mother testified that she believed her projected 1996 income would amount to $28,044.00, falling between her 1992 and 1993 income level. This decrease in income was projected because she had not received bonus money in March of 1996. ³ Beyond that, the record is silent about her bonus money. ⁴ Father presented evidence of Mother's income from her place of employment for the prior five years. That income was as follows: $31,899.40 earned in 1995, $31,095.30 in 1994, $28,302.12 in 1993, $26,341.88 in 1992, and $25,806.20 in 1991.

A trial court is required to consider a history of bonuses as part of average income unless there is evidence that the bonuses are unlikely to continue. Rothfuss v. Whalen, 812 S.W.2d 232, 239-40 (Mo.App.1991). ⁵ In Rothfuss, evidence of three year bonus income was used despite testimony that the future bonus money was unlikely due to severe health problems. Id. The Rothfuss court found that the history of bonus income should have been included and that insufficient evidence existed to find that bonuses would discontinue. Id. A trial court has discretion, however, to ignore income history and instead look at a single year's income figure if the court finds that figure to be the most accurate predictor of a parent's income. In re Marriage of Glueck, 913 S.W.2d 951, 956 (Mo.App.1996). Thus, a single year's income may establish a sufficient predictor in the face of an income history. In the present case, however, the trial court did not consider a single year's income. The court relied on a three-month income to project Mother's annual income. The five-year history of Mother's income disclosed that each year showed an increased income. The evidence that she had not received bonus money in March 1996 with eight months of the year remaining was not sufficient to overcome the presumption that she would receive a bonus in 1996 as she had the five preceding years. Mother's Form 14 gross income statement of $2,337.00 is inaccurate, and the trial court's finding was contrary to the weight of the evidence. The case will be remanded to correct this error.

B. THE TRIAL COURT SHOULD HAVE CONSIDERED FATHER'S FINANCIAL RESPONSIBILITY FOR HIS THREE CHILDREN IN COMPUTING HIS GROSS MONTHLY INCOME

Father claims next that the trial court abused its discretion by failing to deduct his support obligations for three minor children in his custody born subsequent to the divorce of the parties as well as for his niece who had been placed in his custody by court order. The trial court found that the Directions For Completion of Form 14 notes did not entitle Father to a credit for the three minor children born of his second marriage for which he had financial responsibility.

The Directions for Completion of Form 14, line 2.c., state that "the amount of financial responsibility a parent has for his or her children who are in the primary physical custody of that parent and who are not children involved in the action" is not to be used to complete the form "in a modification proceeding by a moving party who petitions to increase or decrease an existing order of support for the child or children who are the subject of the proceeding." The moving party in this case who seeks an increase in an existing order of support is Mother, not Father. Although admittedly Father originally requested to terminate his child support for the younger son, he withdrew it in his Second Amended Petition. Father's petition only requested the court to recognize that the elder son had become emancipated when he entered active military service. Father was the moving party regarding the elder son. Mother moved the trial court to increase Father's child support amounts...