Severn v. Severn
| Decision Date | 08 January 2019 |
| Docket Number | WD 81242 |
| Citation | 567 S.W.3d 246 |
| Parties | Paula J. SEVERN, Respondent, v. William T. SEVERN, Appellant. |
| Court | Missouri Court of Appeals |
Allison C. Tschannen, St. Joseph, MO, for respondent.
William Walker Bird, St. Joseph, MO, for appellant.
Before Division Three: Gary D. Witt, Presiding Judge, Cynthia L. Martin, Judge and Anthony Rex Gabbert, Judge
William Severn ("William")1 appeals the judgment from the Circuit Court of Buchanan County, Missouri denying in part his Motion to Modify Judgment of Dissolution of Marriage as to Child Support and Spousal Maintenance. William argues that the motion court erred in denying his motion because there were substantial or continuing changes of circumstances to warrant termination or modification of maintenance, Paula Severn ("Paula") could meet her reasonable needs, William's employer's contributions to his 409A deferred compensation plan should not have been included in his gross income for purposes of child support calculations, and Paula's income was understated for purposes of child support calculations. William further argues that the motion court erred in awarding Paula half of her attorney fees and awarding Paula more than half of the combined disposable income. We affirm in part and reverse and remand in part.
William and Paula were married on September 7, 1991, in Shawnee County, KS. On February 27, 2008, the trial court entered a Judgment Entry for Dissolution of Marriage, dissolving William and Paula's marriage. The parties settled all issues in the dissolution and the trial court approved their agreement.
The parties agreed that William would pay Paula modifiable maintenance in the sum of $1,500.00 per month. In the Form 14 submitted by agreement of the parties in the dissolution, Paula's gross monthly income was $2,083.00 per month plus the $1,500.00 per month in maintenance and William's gross monthly income was $16,333.00 per month before the reduction for his maintenance obligation. The parties were awarded joint legal and physical custody of their three minor children and the parties agreed that William would be ordered to pay child support to Paula in the amount of $1,893.00 per month.
During the marriage for the ten years prior to the dissolution, Paula was not employed outside the home and was a stay-at-home mother to the parties' children. Approximately one month prior to the dissolution Paula obtained employment at a salon as a hairdresser and her income from that employment was used to determine child support and maintenance.
On September 29, 2016, William filed a Motion to Modify Judgment of Dissolution of Marriage as to Child Support and Spousal Maintenance seeking to terminate his maintenance obligation to Paula, to declare the emancipation of the parties' eldest child, to reduce his child support obligation, and to make the child support payable directly to the parties' youngest two children. A hearing was held on August 29, 2017. At the hearing the parties stipulated that two of the children were now over the age of 18 and were emancipated. The youngest child was still subject to child support. There is no dispute among the parties that the emancipation of two of the children supported a modification of the child support obligation.
The motion court entered a Judgment for Modification on October 3, 2017. The court rejected both parties' Form 14 child support calculations and prepared its own Form 14. The court found Paula's average monthly income to be in the amount of $3,637.00 per month and William's average monthly income to be in the amount of $20,662.00 per month.2 The motion court found the presumed child support amount to be in the sum of $1,508.00 per month and that this amount was not unjust or inappropriate and awarded child support in that amount for the remaining unemancipated minor child.
The evidence at trial adduced that Paula continued to work at the same hair salon where she began working shortly before the dissolution. Her income had gradually increased over time as she obtained new customers and grew her clientele. At the time of trial she was working less than 40 hours per week and had gross earnings of $43,644.00 per year or $3,637.00 per month. William alleged at trial and on appeal that Paula should be working at least 40 hours per week and based on his calculations, gross income should be imputed to her in the amount of $6,100.00 per month for both child support and maintenance determinations. The motion court found that Paula's income had gradually increased following the dissolution because of her increase in clients over time but that this increase was foreseeable at the time of the dissolution. The court also found that there was no evidence to establish that she would have sufficient customers to earn additional income no matter how many hours she spent in the salon. The court found that she was earning a reasonable income based on her profession as a hairdresser and based on her education and experience. The court found that she was not underemployed and that her gradual increase in income over the years since the dissolution did not constitute a substantial and continuing change in circumstances to justify a termination or modification of maintenance.
The court found that Paula had overstated her expenses by including amounts expended on the children in her own expenses. However, the court found that based on her reasonable needs she was still in need of maintenance and that the change in the amount of her reasonable expenses did not constitute a substantial and continuing change in circumstances so as to justify the termination of or a modification of the prior maintenance award.
At the time of trial, William was employed by a management company and his base salary was in the amount of $195,190.00 per year. William also received bonus income in the following years in the following amounts: 2014 = $9,000.00, 2015 = $32,000.00, and 2016 = $32,000.00. William also received dividend income in the following years in the following amounts: 2014 = $18,828.00, 2015 = $15,757.00 and 2016 = $14,175.00. The motion court found that while the bonus and dividend amounts have varied from year to year, based on the evidence, it was reasonable to include the average amount received from each over the last three years and divide by twelve in determining William's gross monthly income. The court found the average monthly income to be $2,028.00 per month from bonuses and $1,355.00 per month from dividends.
William's employer also had a deferred compensation plan which the employer contributed to over the years but solely at its option. The motion court found that if these funds were not contributed into the deferred compensation plan that William would not receive these amounts but also found that because they were put into a deferred compensation plan they were not currently available to William. While the court found these funds were not available to William at this time because of the restrictions on when he could withdraw these funds from his deferred compensation account, the amounts contributed constituted a significant employment related benefit for purposes of determining William's gross income pursuant to Form 14 Line 1 comments for use.3 Based on the evidence the court found that it was appropriate to include one half of the average payment William's employer contributed to his deferred compensation plan over the last three years for purposes of determining his gross income for child support purposes and his ability to pay maintenance. One half of the average amount contributed over the preceding three years constituted $12,167.00 per year or $1,013.00 per month.
William's ability to pay the maintenance award is not in dispute. The motion court found that William failed to establish a substantial and continuing change in circumstances sufficient to justify a modification or termination of the prior maintenance award and left the prior maintenance award of $1,500.00 per month in effect. The motion court used this amount in its Form 14 child support calculation.
The motion court further found that due "to the disparity of the income and the unsupported claim for the termination of maintenance, it is reasonable and necessary that [William] pay [Paula] one-half of her attorney's fees and expert witness fees in the amount of $5,585.00." This timely appeal followed.
William raises six points on appeal. In Point One, William argues that the motion court erred in concluding there was no substantial or continuing change in circumstances to warrant termination or modification of maintenance because the weight of the evidence demonstrated that there was such a change in circumstances. In Point Two, William argues that the motion court erred in concluding Paula could not meet her reasonable living expenses because the weight of the evidence demonstrated that she had overstated her expenses. In his third point on appeal, William argues that the motion court erred in calculating child support because the motion court overstated his income by including his employer's contributions to his deferred compensation plan. In his fourth point on appeal, William argues that the motion court erred in calculating child support since it understated Paula's income by failing to impute to her full-timeemployment income. In his fifth point on appeal, William argues that the motion court erred in awarding Paula half of her attorney's and expert witness fees because the weight of the evidence showed that she had more than sufficient cash assets to pay the fees. In Point Six, William argues that the motion court erred by awarding Paula more than half of the combined disposable net income of the parties because it is against public policy and fundamental fairness.
Both Points One and Two argue that the judgment was against the weight of the evidence.
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