Sansone v. Fulton

• Court: Missouri Court of Appeals
• Writing for the Court: Cynthia L. Martin, Judge
• Citation: Sansone v. Fulton, 679 S.W.3d 9 (Mo. App. 2023)
• Docket Number: WD 85717
• Decision Date: 07 November 2023
• Parties: Elaina Marie (Fulton) SANSONE, Appellant, v. Jeffrey Jay FULTON, Respondent.

679 S.W.3d 9

Elaina Marie (Fulton) SANSONE, Appellant,

v.Jeffrey Jay FULTON, Respondent.

WD 85717

Missouri Court of Appeals, Western District.

OPINION FILED: NOVEMBER 7, 2023

Appeal from the Circuit Court of Platte County, Missouri, The Honorable Dennis Carl Eckold, Judge

Robert Peter Smith, Kansas City, MO for appellant.

David Bruce Sexton, Gladstone, MO for respondent.

Before Division Three: Lisa White Hardwick, Presiding Judge, Karen King Mitchell, Judge and Cynthia L. Martin, Judge

Cynthia L. Martin, Judge

Elaina Marie (Fulton) Sansone ("Wife") appeals from the trial court’s judgment modifying child support. Wife claims the trial court erred in abating child support payments from Jeffrey Jay Fulton ("Husband") during the eight months that the parties’ minor child would be attending college because Wife had ongoing expenses covered by Husband’s child support payments that were not redundant. Finding no error, we affirm.

Factual and Procedural History¹

In January 2012, the marriage between Husband and Wife was dissolved and an amended judgment of dissolution was entered in January of 2013. The amended dissolution judgment ordered Husband to pay child support for the parties’ three children.

In January of 2020, the trial court entered a modification judgment reducing Husband’s child support obligation from $3,500.00 per month to $1,981.00 per month.² The trial court found the parties’ two eldest children to be emancipated leaving the remaining monthly child support obligation attributable only to the parties’ youngest child ("Child") who was at that time 17 years of age. The modification judgment also ordered Husband to provide insurance for Child and to pay 91% of all of Child’s uncovered, non-elective, and necessary dental, medical, counseling, tutoring, and vision expenses. The modification judgment expressly deferred a decision about the responsibility for payment of Child’s college expenses until such time as child enrolled in college.

Child enrolled as a full-time student at the University of Missouri at Columbia in August 2021. On August 20, 2021, Wife filed a "Motion to Modify Judgment to Require Payment of College Expenses." Wife sought an order requiring Husband to pay 100% of Child’s college expenses. Husband responded to Wife’s motion and also filed a "Counter-Motion to Modify Child Support." Husband argued that if he is ordered to pay all or substantially all of Child’s college expenses, then he should receive an abatement from his monthly child support obligation during the eight-month period of time that Child would be attending college and not living with Wife.

The parties participated in a pre-trial conference on March 24, 2022, at which time they informally discussed their competing motions and received a "thumbnail sketch" of the trial court’s intended rulings regarding modification of the child support obligation and the parties’ respective responsibilities for the payment of college expenses. No record was made during the pre-trial conference.

At the conclusion of the pre-trial conference, and in apparent response to the trial court’s indication about its intended rulings, Wife requested a hearing to present evidence about the amounts she had already paid for Child’s college expenses during the 2021-2022 academic year and about her continued expenses while Child is attending college. During the evidentiary hearing on July 14, 2022, the parties made no record about what had been discussed or presented to the trial court during the pre-trial conference or about what they anticipated the trial court’s rulings would be based on discussions during the pre-trial conference.

Wife testified that she had already paid $12,658.47 for Child’s tuition and $14,948.00 for Child’s fraternity and living expenses totaling $27,606.47 for the 20212022 academic year. Wife provided evidence to support the argument that her living expenses, including home maintenance, utilities, automobile maintenance, and real estate license fees, would remain the same while Child was attending college. Wife testified that Child lives with her full-time when he is not at college and introduced an email into evidence that purported to list 111 days between August 19, 2021, and April 17, 2022, (a period of 241 days) when Child stayed at Wife’s home and was not at college.

Husband testified that he pays for Child’s health insurance, car insurance, vehicle repairs and maintenance, gas, and cell phone expenses. Husband testified that he paid $30,000 to purchase Child a vehicle. Husband contested Wife’s contention that Child always lived with her whenever he was not at college and testified that Child had been living with him that summer during the weeks preceding the evidentiary hearing.

The trial court issued its judgment of modification ("Judgment") on August 23, 2022. The Judgment found that since the date of the January 2020 modification judgment there had been a substantial and continuing change of circumstances that warranted an additional modification of child support and an order addressing college expenses. The Judgment increased Husband’s monthly child support obligation from $1,981.00 to $2,376.00 per month³ commencing retroactively on January 1, 2022. The Judgment ordered that Husband shall pay 95% and Wife shall pay 5% of Child’s room and board, tuition, books, and college fees moving forward. The Judgment ordered Husband to reimburse Wife $26,868.85, an amount equal to 95% of the tuition and fraternity payments Wife had already paid for Child during the 2021-2022 academic year.

The trial court further found that Husband’s increased child support obligation of $2,376.00 per month from and after January 1, 2022, should be multiplied times 4 months then divided by 12 months to "adjust" Husband’s child support obligation to $792.00 per month until further order of the court. The practical effect was to abate Husband’s monthly child support obligation for eight months during a twelve-month period during any calendar year while Child was attending college full- time.⁴ Child support at the adjusted amount of $792 a month was ordered to be paid by the Judgment until May 1, 2023, at which time all child support obligations were ordered to cease in light of Child’s emancipation.⁵

Because Husband had already paid child support in the previously ordered amount of $1,981 per month for January, February, March and April of 2022, the trial court applied those payments against the "adjusted" monthly amount of $792.00 owed for each of those months resulting in a credit of $4.756.00 that was applied against the $792.00 per month owed for the months of May through October 2022. The Judgment thus directed that Husband’s adjusted child support amount of $792.00 per month would commence on November 1, 2022.

Wife appeals.

Standard of Review

[1-5] The standard of review governing modifications of child support is "the same as in any other court-tried case." Windsor v. Windsor, 166 S.W.3d 623, 628 (Mo. App. W.D. 2005) (citation omitted). "We will affirm the trial court’s judgment unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law." Harris v. Harris, 655 S.W.3d 33, 38 (Mo. App. W.D. 2022) (internal quotations and brackets omitted); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The party challenging a judgment modifying child support has the burden of proving error. Renaut v. Kullman, 152 S.W.3d 431, 436 (Mo. App. W.D. 2005). "Whether to modify child support is a decision that lies within the discretion of the trial court, whose decision will be reversed only for abuse of discretion or misapplication of the law." Schuman v. Schuman, 612 S.W.3d 232, 235 (Mo. App. W.D. 2020) (internal quotations omitted). We view the evidence in the light most favorable to the judgment of the trial court, deferring to its credibility determinations and disregarding contrary inferences even if the evidence could support a different conclusion. Harris, 655 S.W.3d 33, 38; Finch v. Finch, 442 S.W.3d 209, 214 (Mo. App. W.D. 2014).

Analysis

In Wife’s sole point on appeal, she argues that the trial court erred by misapplying the law when it "eliminated" Husband’s child support obligation for eight months while Child was attending college⁶ as child support should not abate when a child is attending college unless the payments for college expenses are redundant and that the evidence established that Wife had ongoing expenses such that the ordered child support and the payment of college expenses were not redundant.

[6] Rule 84.04(e) requires the argument following a point relied on to include "the applicable standard of review." Wife’s brief does not address the standard of review applicable to her point on appeal. The proper standard of review is controlled by the point relied on as the argument portion of the brief cannot exceed the errors identified in the point relied on. Rule 84.04(e) ("The argument shall be limited to those errors included in the ‘Points Relied On.’ "). Although in both the point on appeal and in the argument portion of her brief Wife argues that the trial court erroneously applied the law, the specific error identified in the point on appeal plainly challenges the sufficiency of the evidence to establish a redundancy that would justify abatement of Husband’s child support obligation. Wife’s point relied on thus argues that a finding of redundancy was against the weight of the evidence. Because we can discern the appropriate standard of review from Wife’s point relied on, we ex gratia elect not to deny the point based on Wife’s failure to comply with Rule 84.04(e).

[7–9] An "against-the-weight-of-the-evidence" challenge "presupposes that there is sufficient evidence to support the judgment." Ivie v. Smith, 439 S.W.3d 189, 205 (Mo. banc 2014) (quotation omitted). "The against-the-weight-of-the-evidence standard serves only as a check on a [trial] court’s...