Shiflett v. Shiflett, WD

• Decision Date: 02 September 1997
• Docket Number: No. WD,WD
• Citation: 954 S.W.2d 489
• Parties: William J. SHIFLETT, Respondent, v. Virginia R. SHIFLETT, Appellant. 53572.
• Court: Missouri Court of Appeals

Page 489

954 S.W.2d 489

William J. SHIFLETT, Respondent, v. Virginia R. SHIFLETT, Appellant.

No. WD 53572.

Missouri Court of Appeals Western District.

Sept. 2, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 28, 1997.

Application to Transfer Denied

Nov. 25, 1997.

Leslie Ann Schneider, Columbia, for appellant.

Gary G. Sprick, Fayette, for respondent.

Before ULRICH, C.J., and LAURA DENVIR STITH and EDWIN H. SMITH, JJ.

LAURA DENVIR STITH, Judge.

Appellant Virginia Shiflett Gledhill appeals the trial court's ruling on her motion to modify the decree dissolving her marriage to Respondent William Shiflett. She argues that, although the trial court ordered her ex-husband to pay increased child support for the couple's two children, the trial court erred in failing to include any amount for their daughter's post-secondary educational expenses in that award. Although the court did not either expressly adopt one of the parties' Form 14s or prepare one of its own, it is evident from the size of its award that it adopted Mr. Shiflett's Form 14 and ordered Mr. Shiflett to pay one-half of the Form 14 amount for the support of each child and that the amount ordered to be paid included no amount for the college expenses of Mr. Shiflett's daughter.

We reverse and remand for two reasons. First, child support should be ordered as a total figure and not per child. Second, in adopting Mr. Shiflett's Form 14 without change the court erred as the record clearly required Mr. Shiflett to pay some amount of his daughter's college expenses, and Mr. Shiflett's form 14 allocated nothing for college expenses.

I. FACTUAL AND PROCEDURAL BACKGROUND

The marriage of Virginia Gledhill and William Shiflett was dissolved on May 3, 1985. According to the terms of the original dissolution decree, Mrs. Gledhill was awarded custody of the couple's two minor children, Lindsey and Adam, and Mr. Shiflett was ordered to pay child support in the amount of $200 per month for each child. At the time of this dissolution, Lindsey was eight years old and Adam was five years old.

On June 15, 1994, Mrs. Gledhill filed a motion to modify the dissolution decree, seeking an increase in child support. The motion alleged that there was a substantial and continuing change in circumstances because the children were older and their needs had changed, but the motion did not explicitly state how these needs had changed. The motion also alleged that there was a significant difference between the child support figure originally ordered and the presumed amount which would currently be due by application of Form 14.

A hearing was held on the motion on March 21, 1996. At the time of the hearing, Lindsey was nineteen years old, had graduated from Fayette High School, and was attending college full time at Central Methodist College pursuing a bachelor of science degree in biology. Mrs. Gledhill has remarried and her present husband, Mr. Gledhill, is at this time paying all of Lindsey's college expenses, including tuition, room and board, car expenses, insurance, and a monthly allowance. In addition, Lindsey receives a partial scholarship, in exchange for which she must work at the college. It is clear from the transcript that the change in the children's needs referred to in the motion to modify was based at least in part on the fact that Lindsey is now in college and that Mrs. Gledhill believes that Lindsey's father should contribute to the costs of her college education.

On October 7, 1996, the trial judge entered an order stating that there were substantial and continuing changed circumstances justifying a modification of the original dissolution decree. Without expressly adopting either party's Form 14 or stating whether the amount calculated under either party's Form 14 was unjust and inappropriate, and indeed without in any way explaining the basis for its ruling, the court increased the amount of child support Mr. Shiflett must pay to $309.50 per month for each child. This amount allocated nothing for payment of any part of Lindsey's college expenses. ¹ This appeal by Mrs. Gledhill followed.

II. STANDARD OF REVIEW

A trial court's ruling on a motion to modify child support will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976); Leslie v. Leslie, 948 S.W.2d 458, 460 (Mo.App.1997); In re Marriage of Glueck, 913 S.W.2d 951, 954 (Mo.App.1996). The judgment must be affirmed under any reasonable theory supported by the evidence and should be set aside only upon a firm belief that the trial court's judgment was incorrect. Guier v. Guier, 918 S.W.2d 940, 946 (Mo.App.1996). We defer to the trial court's determinations of credibility and view the evidence in the light most favorable to the trial court's ruling. Leslie, 942 S.W.2d at 439; Glueck, 913 S.W.2d at 954. The party seeking to modify has the burden of proving a substantial and continuing change of circumstances. Riley v. Rollo, 913 S.W.2d 382, 383 (Mo.App.1996).

III. POST-SECONDARY EDUCATIONAL EXPENSES AS CHILD SUPPORT

On appeal, Mrs. Gledhill argues that the trial court erred by not including in the child support award any amount for Lindsey's post-secondary educational expenses. She asks us to remand so that the order can be modified and Mr. Shiflett ordered to pay those expenses.

A. Trial Court Must Make a Total Child Support Award, Not a Separate Award per Child, and In So Doing Should Either Adopt a Party's Form 14 or Prepare One of Its Own.

We agree that this case must be remanded for further proceedings. The first reason we so order is so that the trial court can order a total amount of child support to be paid rather than order half the total amount of support be paid for each child. The requirement that child support be paid as a total amount, and not per child, is evident from a review of how child support is determined using Form 14. See, e.g., McCreary v. McCreary, 954 S.W.2d 433, 437 n. 1 (Mo.App.1997). Form 14 requires the court to determine the parties' income and expenses, and requires reference to a Schedule of Basic Child Support Obligations to determine the amount of child support due for a particular gross income. The amount due for two children under the Schedule is not double that due if the parties have one child, however, nor is the amount due for three children triple that due for one child. Conversely, when one or two children becomes emancipated, the amount of child support is not halved. This is, at least in part, because of the fact that, while costs for such things as clothing and food may be similar for each child, housing costs, utility costs, and so forth, do not increase at the same rate.

Form 14 recognizes this by requiring that a total amount of support be paid for all children. Mr. Shiflett's own Form 14, for instance, required payment of $619.00 per month for both children. Form 14 does not anywhere indicate that this amount should be allocated evenly per child, however, and Mr. Shiflett did not so suggest on his Form 14. It was error for the trial court to order one-half of the total amount of child support to be paid for each child. On remand, the court should order a total amount to be paid for the two children together. Moreover, on remand the judge should follow the preferred practice of expressly stating on the record whether he is adopting a party's Form 14 or preparing one of his own. ² Here, however, because the amount awarded to each child is one-half the total amount for both children set out in Mr. Shiflett's Form 14, it is evident that the court adopted Mr. Shiflett's Form 14. We agree with Mrs. Gledhill that, in so doing, the court erred because it failed to order Mr. Shiflett to pay any amount toward Lindsey's college expenses.

B. Trial Court Was Required to Award Some Amount in College Expenses.

If a child is enrolled in and attending an institution of higher education after graduating from high school, a parent's support obligation continues until that child reaches the age of twenty-two or completes her education, whichever occurs first. § 452.340.5, RSMo Supp.1995. Furthermore, when determining the amount of child support, the court must consider the child's educational needs. Rule 88.01(e).

This does not mean that a parent is automatically liable for the actual costs of a child's post-secondary education. To the contrary, educational expenses are not included in the basic Form 14 calculation of presumed child support. Leahy v. Leahy, 858 S.W.2d 221, 225 (Mo. banc 1993). The trial court must, however, consider educational expenses, including college costs, in determining what child support should be awarded, and if appropriate should adjust the presumed child support amount to accommodate college costs. DeCapo v. DeCapo, 915 S.W.2d 343, 346 (Mo.App.1996); Mistler v. Mistler, 816 S.W.2d 241, 255 (Mo.App.1991).

The court can take post-secondary educational expenses into account in two different ways. First, the court can include such expenses on line 4e of the Form 14 calculation itself as an extraordinary expense. Thus, the Comments For Use to Form 14 state:

E. Post-secondary educational expenses are not factored into the Schedule of Basic Child Support obligation. Post-secondary educational expenses can be ordered by the court if it is determined by the parents or the court to be appropriate for the parents to contribute to the costs of such programs.... Post-secondary educational expenses can be included on Form 14 as extraordinary expenses (line 4e).

There may be occasions where the court does not believe that it would be proper to include the post-secondary educational expenses in the Form 14 calculation itself, however. This would be particularly true, for instance, if the court believes that these expenses should be divided differently...