Selby v. Smith

• Decision Date: 20 June 2006
• Docket Number: No. 27438.,27438.
• Citation: 193 S.W.3d 819
• Parties: Kevin L. SELBY, Respondent, v. Sheila L. SMITH, formerly Sheila L. Selby, Appellant.
• Court: Missouri Court of Appeals

193 S.W.3d 819

Kevin L. SELBY, Respondent, v. Sheila L. SMITH, formerly Sheila L. Selby, Appellant.

No. 27438.

Missouri Court of Appeals, Southern District, Division Two.

June 20, 2006.

COPYRIGHT MATERIAL OMITTED

James R. Sharp, Sharp & Bredesen, Springfield, for Appellant.

Kevin L. Selby, Stark City, pro se.

Before SHRUM, P.J., BARNEY, J., and BATES, C.J.

PER CURIAM.

Appellant Sheila L. Smith ("Mother") appeals the trial court's "Judgment of Modification" which required her to pay child support to Respondent Kevin L. Selby ("Father") for the care of the parties' minor children as well as pay all visitation-related transportation costs.¹ Mother brings two points on appeal. In her first point on appeal, Mother contends the trial court erred in finding there was a substantial change in circumstances which warranted modification of child support. In her second point relied on, Mother asserts the trial court erred in requiring her to pay all transportation costs associated with visitation. We reverse and remand.

The record reveals the parties were married on July 29, 1989, and their marriage was dissolved on October 10, 1996. In its judgment, the trial court awarded joint legal custody of the children to both parties with "[t]he primary physical placement of the children with [Father] with [Mother] to have reasonable and specific visitation . . . ." The trial court found

that the presumed correct child support amount as calculated by [Father] pursuant to [s]ection 452.340.8 . . . Supreme Court [Rule] 88.01 and Civil Procedure Form No. 14 is rebutted as being unjust or inappropriate in that [Father] requests [Mother] not be ordered to pay child support and [Father] affirms that he has adequate means to provide for the care and support of the same minor children, therefore [Father] is not awarded child support from [Mother] at this time.²

The "Joint Custody Plan" made no mention of which party should pay for the transportation of the children to and from visitation.

Father filed his "Motion to Modify Judgment and Decree of Dissolution of Marriage as to Child Support" on March 28, 2005, and his "Amended Motion to Modify Judgment and Decree of Dissolution of Marriage as to Child Support" on August 22, 2005. In his amended motion, Father contended there had been a substantial and continuing change in circumstances which made the trial court's prior order exempting Mother from paying child support unreasonable. In support of his allegation that there had been a change in circumstances necessitating a change in child support, Father stated "[t]hat there has been an increase in the cost of supporting the children since the [d]ecree was entered;" that "[t]he children are much older now . . . thereby greatly increasing the cost of their support;" that Mother "has experienced a substantial increase in her income since the date of the original [d]ecree;" and that both children "have expressed a desire to attend college." Father then requested the trial court award child support "pursuant to the Form 14 guidelines," and requested Mother be required to pay one-half of the children's college expenses.

A hearing on Father's motion was held on October 18, 2005. Father testified that at the time of the parties' divorce in 1996 he was residing in Neosho, Missouri, where he still resides, and Mother had just moved to Plattsburg, Missouri, which is north of Kansas City, Missouri. At that time, Mother and Father would meet in Nevada, Missouri, to exchange the children for visitation.

In 1999, Mother moved to Carthage, Missouri, where she resided for approximately one year. While Mother lived in Carthage, the parties still split transportation costs between them with one party going to the other party's home to retrieve or return the children. According to Father, Mother assured him that she intended on staying in the Carthage area for a long time.

However, in late 2000, Mother returned to the Kansas City area. "At that time, [Father] advised [Mother] that, given the fact she was not paying support, given the fact that she decided to move to the other side of the state, [he] felt it appropriate that she would pay for the transportation for her visitation . . ." and Mother complied with this request. Father noted that such a transportation arrangement was only fair because he transported the children twenty-eight days a month to and from their various extracurricular activities and appointments; accordingly, Father asserted that requiring Mother to transport the children a few days a month did not appear to him to be "overly burdensome." He stated that Mother "chose to move to the other side of the state and there are consequences of that to his family" in that the children were now required to travel a long distance for visitation with Mother and Mother was no longer close enough to their home to assist Father in their day-to-day care.

Additionally, Father testified that his income at the time of the modification hearing was $96,000.00 per year, as evidenced by his income tax returns which were entered into evidence.³ Father also provided medical insurance for the children at a cost of $100.00 per month. Based on his calculations Father requested $336.00 per month in child support from Mother and asked her to pay thirty percent of the children's college expenses.

Mother testified that she worked in customer support at Mediflex, Inc., and that her gross pay in 2004 was $37,884.00, as reflected by her income tax return entered into evidence.⁴ Mother noted that she provided dental insurance for the children costing $50.00 per month and that, per Father's request, she has created savings accounts for the children. Mother also stated that in 2000, following her return to the Kansas City area, she began providing all of the transportation for the children relating to visitation. Accordingly, on the days she had visitation, Mother drove to Neosho to pick up the children and then returned them to Neosho at the end of her period of visitation. She related she often left work early on Friday so that she could pick the children up from school in Neosho. She stated that a round-trip drive takes six hours. She estimated the round-trip drive at 300 miles and that in the course of a year she traveled around 18,000 miles at a cost of over $6,600.00 per year. Mother noted that she was living in the same location that she had been at the time of the dissolution and that Father was currently earning more money than he had been at the time of the dissolution.

Mother proposed that instead of requiring her to provide all of the transportation, the trial court should require the parties to meet in Rich Hill, Missouri, which is approximately halfway between their homes. Further, if the trial court ordered her to pay child support and still provide all of the transportation costs, Mother requested she be allowed a deduction from the presumed child support amount to set-off the costs of transportation.

Following the hearing, the trial court entered its "Judgment of Modification" on November 28, 2005. In its judgment, the trial court found "that a substantial and continuing change has occurred between the minor children and the parents, thereby necessitating a modification of the original Judgment entered by this Court." The court found that "the presumed correct child support amount as calculated by [Father] pursuant to [section] 452.340.8. . . Supreme Court Rule 88.01 and Civil Procedure Form No. 14 is [$336.00] . . . per month retroactive to April 24, 2005 . . . [s]aid arrearage total is [$2,016.00]."⁵ Further, pursuant to a stipulation of the parties, the trial court apportioned thirty percent of the children's college expenses to Mother and seventy percent to Father. Additionally, the court held that Mother "shall pick up the children from their primary residence [with Father] and deliver the children to their primary residence at the end of her visitation periods." A revised "Parenting Plan" was also incorporated into the "Judgment of Modification."⁶ This appeal by Mother followed.

In her first point relied on, Mother maintains the trial court erred in modifying the divorce decree as to the issue of child support because Father failed to meet his burden of proving that a substantial and continuing change in circumstances occurred. She maintains that modification was inappropriate because "[i]n the original dissolution decree, the court specifically rebutted the presumed child support amount and found that Father had adequate means to provide for the care and support of the minor children and did not order Mother to pay child support to Father." Mother also argues the only evidence presented by Father at trial "was a Form 14 calculation and Mother's 2004 W-2 earning statement" and that "there was no evidence in the record concerning how the circumstances of the parties had changed since the entry of the decree, including how the expenses of the children have changed or how the parties' current incomes have changed from the incomes they earned when they divorced in 1996."

Our review of a trial court's adjudication of a motion to modify a dissolution decree regarding child support is limited to determining whether the judgment is supported by substantial evidence, whether it is against the weight of the evidence, whether it erroneously declares the law or whether it erroneously applies the law. Schottel-Lehde v. Schottel, 75 S.W.3d 359, 363 (Mo.App.2002); see also Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "The determination to award a modification in child support lies within the discretion of the trial court, and the trial court's decision will be reversed only for abuse of discretion or misapplication of the law." Mann v. Hall, 962 S.W.2d 417, 419 (Mo. App.1998). We will set aside the judgment "`on the ground that it is against the weight of the evidence with caution and with a firm belief that the judgment is wrong.'"...