Short v. Short, 20994

• Decision Date: 08 April 1997
• Docket Number: No. 20994,20994
• Citation: Short v. Short, 947 S.W.2d 67 (Mo. App. 1997)
• Parties: Melody Renee SHORT, Respondent, v. Arthur Bernard SHORT, Appellant.
• Court: Missouri Court of Appeals

Page 67

947 S.W.2d 67

Melody Renee SHORT, Respondent, v. Arthur Bernard SHORT, Appellant.

No. 20994.

Missouri Court of Appeals,

Southern District,

Division Two.

April 8, 1997.

Douglas K. Crandall, Crandall, Dally & Podleski, Carthage, for appellant.

Stephen L. Shepard, Stephen L. Shepard, P.C., Springfield, for respondent.

SHRUM, Judge.

In this domestic relations case, Husband challenges the trial court's modification of his child support obligation. Husband presents multiple claims of trial court error, some of which have merit; consequently, we reverse and remand.

FACTS

Melody Renee Short (Wife) sought modification of a child support order against her former husband Arthur Bernard Short (Husband). The support was for their sons, Brady Alan Short (Brady) and Grant Noble Short (Grant). Husband and Wife each submitted a Form 14 to the court. Wife offered an income and expense statement, tax returns, and testimony as evidence of her income, expenses, and indebtedness. Husband also offered testimony and tax returns as evidence of his income, expenses and indebtedness.

At the modification hearing, the trial court heard testimony from Wife regarding medical expenses of both Brady and Grant. In particular, Wife testified that Brady has asthma and takes allergy shots, and that Grant has asthma and a spastic bladder. She further testified that, while Husband did provide medical insurance for the children, she incurred monthly uninsured health expenses.

Wife also testified that both children were involved in athletics, after-school, and summer programs. She asserted that the children needed athletic clothing and equipment for the sports in which they compete. Wife offered testimony suggesting that she had to take off from work to take Brady and Grant to the doctor and to their athletic events.

In reaching its decision, the court prepared its own Form 14. The court increased Husband's child support obligation ordering him to pay $1,500.00 per month, to continue providing health and medical insurance for both children, and to pay 80% of uninsured medical expenses incurred by the children. This appeal followed.

STANDARD OF REVIEW

The standard of review here is set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The trial court's decision must be affirmed unless it is unsupported by substantial evidence, against the weight of the evidence, or misstates or misapplies the law. Id. We defer to a trial court's determinations of credibility, and view all evidence and any permissible inferences therefrom in the light most favorable to the trial court's decision. Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991). We disregard all contrary evidence and inferences therefrom. Id. Absent a manifest abuse of discretion, we will not substitute our judgment for that of the trial court. Elliott v. Elliott, 920 S.W.2d 570, 574 (Mo.App.1996).

DISCUSSION AND DECISION

Point I: Uninsured Medical Expenses

Husband's first point maintains that the trial court erred when it ordered Husband to pay 80% of any uninsured medical expenses incurred for his children when the court had already found that $1,500.00 was the "appropriate" child support under Rule 88.01. We agree.

Rule 88.01(e) states as follows:

"There is a rebuttable presumption that the amount of child support calculated pursuant to Civil Procedure Form No. 14 is the amount of child support to be awarded in any judicial ... proceeding ... for child support. It is sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to Civil Procedure Form No. 14 is correct if the court.... enters in the case a written finding or a specific finding on the record that the amount so calculated, after consideration of all relevant factors, is unjust or inappropriate."

The rule clearly provides that a deviation from the presumptive amount requires a specific finding that upon consideration of all relevant factors, such an amount would be unjust or inappropriate. Division of Family Services v. Buttram, 924 S.W.2d 870, 871 (Mo.App.1996) (citing Beeman v. Beeman, 816 S.W.2d 15, 17 (Mo.App.1991)). An award that differs from the presumptive amount is ineffective without the mandatory finding. Buttram, 924 S.W.2d at 871. A trial court that deviates from the presumptive amount without the mandatory findings commits error that requires reversal and remand. Id. See Myers-Geiger by Myers v. Geiger, 878 S.W.2d 925, 927 (Mo.App.1994) and cases cited therein.

Here, the trial court ordered Husband to pay 80 percent of uncovered medical expenses. Case law declares that such a provision is an order for the payment of child support. See Buttram, 924 S.W.2d at 871; Adelman v. Adelman, 878 S.W.2d 871, 873 (Mo.App.1994). Under the circumstances, this additional provision shows a deviation from the presumptive amount; consequently, the trial court was required by Rule 88.01(e) to state that the presumptive amount is "unjust or inappropriate." See Buttram, 924 S.W.2d at 871; Adelman, 878 S.W.2d at 873. As the trial court failed to make the required finding, the child support award was ineffective. Beeman, 816 S.W.2d at 17.

Wife concedes the required finding is absent from the judgment, but insists that the trial court "implicitly" found the presumptive amount was inappropriate by saying that "[e]ach party has the financial resources to contribute to the payment of medical and dental expenses" and then ordering each party to contribute to payment of such uninsured expenses. We disagree. An express finding that a fixed child support amount is appropriate cannot be reconciled with an implicit finding that the presumed amount is inappropriate. We will not substitute our judgment for that of the trial court on whether or not the presumed child support amount was unjust or inappropriate, provided there is credible evidence to support the trial court's beliefs. See Buchanan v. Buchanan, 828 S.W.2d 946, 949 (Mo.App.1992). Here we are unable to discern what the trial court believed on this issue. Remand is necessary with directions to the trial court to either enter a finding that the amount calculated in Form No. 14 is unjust or inappropriate, or to enter an amount of child support dictated by appropriate calculation utilizing Form 14. See Beeman, 816 S.W.2d at 17.

Point II: Extraordinary and Uninsured Medical Expense Award

Husband's second point asserts that the trial court erred when it included $60.00 per month extraordinary medical expenses on line 4d of its Form 14 calculation and then ordered Husband to pay 80% of the children's uninsured medical expenses. Husband argues that he is being assessed twice for the same expenses.

Initially we observe that the court could properly include the $60.00 per month extraordinary and uninsured medical expenses as a factor in its Form 14 calculations. The Directions for Completion of Form 14, Worksheet, line 4d are quite clear:

"Enter the amount of any extraordinary medical expense. Extraordinary medical expenses are uninsured expenses in excess of $100 for a single illness or condition. Such expenses include, but are not limited to, costs that are reasonable necessary for ... asthma treatment ... CAVEAT: this entry should be used only for long-term chronic conditions...."

As stated before, a requirement to pay uninsured medical expenses is equivalent to child support. See Buttram, 924 S.W.2d at 871; Adelman, 878 S.W.2d at 873. The trial court could craft its judgment to require that Husband pay his share of "[u]ninsured extraordinary medical expenses" as defined by the instructions for line 4(d) of Form 14 and then conclude that the resulting child support amount was appropriate. Alternatively, the trial court could find the Form 14 calculation as it stands is unjust or inappropriate and then require Husband to pay uninsured medical expenses. Under the latter approach, Husband would be entitled to a credit against his obligation for uninsured medical expenses. The amount of credit would be his share of line 4(d) of Form 14. ¹ Only one of these approaches should be used. No basis exists for twice imposing on Husband the obligation to pay any uninsured medical expenses, including allergy and asthma medications and shots. In light of our decision regarding Husband's first point, this issue is also remanded for further consideration by the trial court.

Point III: Extraordinary Expenses

Husband's third point asserts that the trial court erred when it included in its Form 14 calculation extraordinary expenses "... such as allergy, asthma medication and shots, loss of work due to children's illnesses, ... and sporting activities." Husband complains that these expenses should not be considered extraordinary expenses.

We reject Husband's first argument under this point. As we have noted, quoting from the Directions for Completion of Form 14, expenses for the treatment of asthma are clearly extraordinary expenses properly included in the trial court's Form 14 calculation. In addition, expenses for allergy shots, as a treatment associated with the control of asthma, are also properly included on line 4d.

We now turn to Husband's colorable challenges to the trial court's calculation of extraordinary expenses.

Directions for Completion of Form 14, Worksheet, line 4e state:

"Enter other extraordinary expenses agreed to by the parties or ordered by the court. Other extraordinary expenses may include the cost of tutoring sessions; special or private elementary schools to meet the particular educational needs of the child; camps, lessons, travel, or other activities intended to enhance the athletic social, or cultural development of the child(ren)."

In its Form 14, the trial court includes expenses for Wife's time lost from work due to the children's illnesses as an extraordinary expense on line 4e. Husband insists these are not expenses anticipated when these notes on use were written. We agree.

Genera...