Scobee ex rel. Roberts v. Scobee

• Decision Date: 06 March 2012
• Docket Number: No. WD 73857.,WD 73857.
• Citation: Scobee ex rel. Roberts v. Scobee, 360 S.W.3d 336 (Mo. App. 2012)
• Parties: In re the Matter of: Matthew Aaron SCOBEE, by his next Friend, Kristi ROBERTS, and Kristi Roberts, Individually, Appellant, v. Gail Lynn SCOBEE, Respondent.
• Court: Missouri Court of Appeals

360 S.W.3d 336

In re the Matter of: Matthew Aaron SCOBEE, by his next Friend, Kristi ROBERTS, and Kristi Roberts, Individually, Appellant,

v.Gail Lynn SCOBEE, Respondent.

No. WD 73857.

Missouri Court of Appeals, Western District.

March 6, 2012.

Michele C. Puckett–Burkhead, for Appellant.

Kristen C. Johnson, for Respondent.

Before Division Four: LISA WHITE HARDWICK, Chief Judge, JOSEPH M. ELLIS, Judge and GARY RAVENS, Special Judge.

JOSEPH M. ELLIS, Judge.

Kristi Roberts (“Mother”) appeals from a paternity judgment entered by the Circuit Court of Clinton County awarding her $750 per month in child support from Gail Lynn Scobee (“Father”), denying her requests for retroactive child support and attorney's fees, and awarding Father the dependency tax exemption for federal and state income tax purposes. For the following reasons, the judgment is affirmed in part, reversed in part, and remanded for further proceedings.

Mother and Father engaged in a fourteen-year relationship. The relationship produced one child, a son (“Son”), born in 1998. In February of 2010, Father ended the relationship, and, on May 24, 2010, Mother filed a paternity action seeking a paternity determination as to Son as well as joint legal and sole physical custody of Son, child support, retroactive child support, and reasonable attorney's fees. On June 21, 2010, Father filed an answer and counter-sued, seeking an order of paternity, joint legal and physical custody of Son, and a reasonable child support obligation as deemed appropriate by the court.

On January 10, 2011, a trial was held at which both Mother and Father testified. Mother testified she was currently unemployed and had been unable to find employment in the small town in which she lived. She also testified that she had worked as the office manager in Father's business during the relationship, but that Father terminated her when he ended the relationship. Since that time, Mother testified she had been unable to find employment, that she was receiving unemployment benefits, and that she had cashed-in her 401(k) to provide for herself and her children.

Mother introduced Father's tax returns for the years 2007, 2008 and 2009, and they were admitted into evidence. According to these returns, Father's adjusted gross income for income tax purposes in 2009 was $176,181 ($14,682 per month). Schedule C for his construction business reflected gross income of $2,095,693 and total expenses of $1,873,784 (including $472,414 of depreciation and one time Section 179 expense), resulting in a net profit of $221,909.

In 2008, Father's adjusted gross income for income tax purposes was $710,458 ($59,205 per month). The construction business had gross income in 2008 of $2,450,864, with total expenses of $1,697,635 (including $480,420 of depreciation and Section 179 expense), resulting in net income to Father of $753,229.

The 2007 income tax return showed Father's adjusted gross income at $206,263 ($17,289 per month). The construction business's gross income for 2007 was $1,391,715, with total expenses of $1,087,354 (including $193,185 of depreciation and Section 179 expense), yielding net profit to Father of $304,361.

Father's tax returns also reflected that Father's total income was reduced by certain adjustments permitted by the Internal Revenue Code, the principal one in each year being his contribution to a Simplified Employee Pension (“SEP”) Individual Retirement Arrangement. For 2007, Father contributed $45,000, in 2008 $46,000, and in 2009 $38,603. In each of the three tax years, these amounts were subtracted from Father's total income to yield the adjusted gross income amounts set forth above.

Mother provided the court with two Form 14s, the first calculating the presumed child support amount (“PCSA”) at $2,164 and the second calculating the PCSA at $1,214. In the first Form 14, Mother listed Father's income as $69,000 per month, relying on her analysis of the tax returns to arrive at that amount. In the second Form 14, she listed Father's income as $10,949 per month, the amount Father asserted was his actual monthly income.

On cross-examination, Father's counsel questioned Mother regarding the expenses reflected on her income and expense statement. Counsel generally tried to secure an admission from Mother that only one-third of the expenses listed were attributable to Son because Son was one of three persons residing in the rental home.¹

Father then testified that because his business performs high-voltage electrical contracting work, such as repairing power lines after storms, his income fluctuates depending upon the amount of inclement weather occurring in the given year. He further testified that the $69,000 net monthly income average Mother used in calculating her first Form 14 did not accurately reflect his monthly income because she failed to take into account other expenses associated with running one's own business, such as the purchase and upkeep of equipment and employee payroll. Father introduced no other evidence of his business income or expenses.²

At the close of evidence, the court took the matter under advisement. On March 2, 2011, the court entered its judgment. The court found that Father was Son's biological father and concluded Mother and Father should have joint legal and physical custody of Son with Son primarily residing with Mother. The court also awarded Father the right to claim Son as his dependent for state and federal income tax purposes. After finding both Form 14s submitted by Mother to be unjust and inappropriate, the court awarded Mother $750 per month in child support and denied her request for retroactive child support and attorney's fees.

Mother then filed a post-trial motion requesting the court vacate, re-open, correct, amend or modify its judgment, asserting the judgment was defective in that the court failed to establish a PCSA on the record. On April 22, 2011, the trial court issued an amended judgment. In its amended judgment, the court adopted Mother's Form 14 that set forth the PCSA at $1,214, which it then rebutted as unjust and inappropriate because it concluded that Mother was underemployed. Mother timely filed her notice of appeal.

Mother presents three points on appeal: (1) the trial court erred in awarding her $750 per month in child support and refusing to enforce the award retroactively because the evidence shows Father earns a net monthly income of $69,112.57 in comparison to Mother, who is unemployed with bleak employment opportunities; (2) the trial court erred in refusing to award Mother attorney's fees because the weight of the evidence showed the disparity of income and assets between Mother and Father; and (3) the trial court erred in awarding Father the right to claim Son as a dependent for federal and state income tax purposes because Mother is the custodial parent thereby entitling her under state and federal law to receive the tax exemption.

In Mother's first point on appeal, she claims that the trial court's award of $750 in child support is against the weight of the evidence and thereby an abuse of discretion. “In determining an award of child support in any proceeding, § 452.340.8 and Rule 88.01 require the trial court to follow the two-step procedure set forth in Woolridge v. Woolridge, 915 S.W.2d 372, 379 (Mo.App.1996).” Hart v. Hart, 210 S.W.3d 480, 489 (Mo.App. W.D.2007) (internal quotation omitted). “First, the court must determine and find for the record the PCSA, in accordance with Form 14.” Ricklefs v. Ricklefs, 39 S.W.3d 865, 870 (Mo.App. W.D.2001). “Second, the court, after considering all relevant factors, must determine whether to rebut the PCSA as being unjust or inappropriate.” Id. Thus, “Rule 88.01 creates a rebuttable presumption that the Form 14 amount is the correct amount of child support,” and “[t]he burden is on the party seeking to rebut the Form 14 amount to show a need for deviating from that amount.” Haden v. Riou, 37 S.W.3d 854, 864 (Mo.App. W.D.2001).

“Our review then of an award of child support is essentially one of the trial court's application of the two-step Woolridge procedure, applying the standard enunciated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).” Conrad v. Conrad, 76 S.W.3d 305, 308 (Mo.App. W.D.2002). “Hence, in reviewing an award of child support, we review the award, in light of the trial court's application of the Woolridge procedure, to determine whether it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law.” Hart, 210 S.W.3d at 489 (internal quotation omitted). “After reviewing and determining that the trial court's application of the Woolridge procedure passes the Murphy v. Carron standard, we then review for an abuse of discretion with respect to the trial court's rebuttal review of its PCSA calculation.” Peniston v. Peniston, 161 S.W.3d 428, 433 (Mo.App. W.D.2005) (internal quotation omitted). Thus, we “will interfere with the trial court's award only if the trial court abused its discretion by ordering an amount that is against the logic of the circumstances or arbitrary or unreasonable.” Ricklefs, 39 S.W.3d at 869 (internal quotation omitted).

The first step of the Woolridge procedure requires the trial court to “determine and find for the record the PCSA, in accordance with Form 14.” Ricklefs v. Ricklefs, 39 S.W.3d 865, 870 (Mo.App. W.D.2001) (emphasis added). “Step one is a mathematical calculation the mandatory use of which insures that the child support guidelines will be considered in every case.” Searcy v. Searcy, 85 S.W.3d 95, 99 (Mo.App. W.D.2002) (internal quotation omitted). In determining the PCSA for the record, the trial court can either accept a Form 14 PCSA calculation of one of the parties or reject the parties' calculations and do its own. Nelson v. Nelson, 195 S.W.3d 502, 509 (Mo.App. W.D.2006). “The trial court must reject a party's Form 14...