Smith v. White

• Decision Date: 26 August 2003
• Docket Number: No. WD 61777.,No. WD 61737.,WD 61737.,WD 61777.
• Citation: Smith v. White, 114 S.W.3d 407 (Mo. App. 2003)
• Parties: Linda Elizabeth SMITH, Appellant-Respondent, v. Kirby Lynn WHITE, Respondent-Appellant.
• Court: Missouri Court of Appeals

114 S.W.3d 407

Linda Elizabeth SMITH, Appellant-Respondent, v.Kirby Lynn WHITE, Respondent-Appellant.

No. WD 61737.

No. WD 61777.

Missouri Court of Appeals, Western District.

August 26, 2003.

As Modified September 30, 2003.

Grace S. Day, St. Joseph, MO, for Appellant/Respondent.

James A. Nadolski, St. Joseph, MO, for Respondent/Appellant.

Before PAUL M. SPINDEN, P.J., THOMAS H. NEWTON and RONALD R. HOLLIGER, JJ.

THOMAS H. NEWTON, Judge.

Ms. Linda Smith appeals from the trial court's judgment modifying her child support obligation and ordering her to pay attorney's fees.Mr. Kirby White cross-appeals from the trial court's judgment emancipating his eldest son for failing to successfully complete the number of college credits necessary to remain eligible for child support.

Ms. Smith raises seven points on appeal.Six of her points address the payment of child support.Of these points, three involve the trial court's Form 14 calculation of child support, one relates to Ms. Smith's claim to a refund for child support paid when the eldest son was ineligible for support due to his failure to furnish a college transcript, one concerns Ms. Smith's desire to pay college expenses directly to the younger son's college, and one relates to Ms. Smith's desire to pay child support directly to the younger son.The final point addresses the trial court's award of attorney's fees to Mr. White for breach of the parties' marital settlement agreement.

Mr. White raises one point in his cross-appeal.He contends that the trial court erred in declaring his eldest son emancipated under section 452.340.5¹ for failure to pass twelve hours of college courses during the spring 2001 semester, as required to remain eligible for child support.

We reverse the judgment of the trial court as it pertains to the award of attorney's fees and remand so the trial court can develop the record on that issue.In all other respects, we affirm the judgment of the trial court.

I.FACTUAL AND PROCEDURAL BACKGROUND

The parties divorced in 1996.They have two children.At the time of oral argument, the eldest child, Scott, was twenty-one years old and a student at the University of Missouri in Columbia.The youngest child, Christopher, was nineteen years old and a student at Northwest Missouri State University in Maryville.

In its original dissolution decree, the trial court awarded joint legal custody to both parents and awarded primary physical custody to Ms. Smith.In a later modification proceeding, the court transferred primary physical custody to Mr. White and ordered Ms. Smith to pay $1,157 in child support beginning in January 1997.While the modification judgment transferred responsibility to Mr. White for providing Scott and Christopher with health insurance coverage, it did not disturb the provision of the original dissolution decree that required Ms. Smith to pay seventy-five percent of all uninsured medical expenses.

On May 17, 2000, Mr. White filed a motion for contempt based upon Ms. Smith's failure to pay her share of certain orthodontic expenses.Mr. White also filed a motion to modify, requesting that the court increase Ms. Smith's child support obligation because of Scott's pending college attendance.Ms. Smith filed a counter-motion to modify, requesting that the trial court decrease her child support obligation due to a decrease in her income and an increase in Mr. White's income.

The trial court entered a contempt judgment in favor of Mr. White for $6,285, which represented the full amount of the orthodontic expenses at issue.The trial court also recalculated Ms. Smith's child support obligation after preparing its own Form 14 and increased her obligation to $1,438 per month.

Ms. Smith appealed.SeeSmith v. White,67 S.W.3d 742(Mo.App. W.D.2002)(Smith I).In Smith I,this court affirmed the modification of Ms. Smith's child support obligation.Id. at 745-46.But we concluded that the trial court erred when it awarded Mr. White the full amount of the children's orthodontic expenses as a sanction for Ms. Smith's contempt because Mr. White failed to adduce evidence showing that the amount awarded in excess of Ms. Smith's share of those expenses "was somehow compensatory or related to the damages" that he suffered.Id. at 747.Accordingly, we remanded the case"to allow the trial court to reconsider the monetary sanction and to formulate that element of the judgment in a manner consistent with the principles of civil contempt."Id.

Following remand, Ms. Smith filed an amended motion to modify the trial court's judgment.In her amended motion, she asked that the trial court declare Scott to be emancipated and ineligible for child support because of his failure to furnish her with college enrollment documentation for the Spring 2001 semester and because of his failure to pass twelve hours of courses during the spring 2001 semester, as required by section 452.340.5.She requested credit for child support payments that she had made since January 1, 2001.She further requested that the trial court reduce her child support obligation and "order each party to equally pay the college expenses for Christopher ... in accordance with the statute, with said payments to be paid by each party directly to the college or university upon receipt of statement for costs."She further requested that the trial court allow her to make support payments directly to Christopher.

Mr. White filed a counter-motion for modification of child support, arguing that an increase in Scott's college costs and Christopher's pending college attendance justified an increase in Ms. Smith's child support obligation.

In its amended judgment pertaining to these matters, the trial court ruled that Scott was emancipated as of June 1, 2001, based upon this court's decision in Lombardo v. Lombardo,35 S.W.3d 386(Mo. App. W.D.2000).The trial court determined that Ms. Smith was entitled to a credit of $8,736 for overpayment of child support between June 1, 2001, and June 1, 2002.The trial court further modified Ms. Smith's child support obligation to $1,302 per month to be paid through the Family Support Payment Center.

The trial court also ruled that Ms. Smith "remains obligated to pay the balance of her proportionate share of the orthodontic bill in the amount of $4,463.75."

Finally, the trial court ordered Ms. Smith to pay Mr. White's attorney's fees in the amount of $4,850.The attorney's fee award was based upon a provision in the parties' marital settlement agreement providing for "reasonable attorney's fees to be paid by the party breaching the agreement."The trial court found that Mr. White had incurred $850 in attorney's fees "for pursuing the original contempt action,""an additional $3,500.00 in attorney's fees in successfully defending that Judgment in the Court of Appeals," and $1,500 in attorney's fees following remand, "of which $500.00 is attributable to the issue of contempt on remand."

II.STANDARD OF REVIEW

In this court-tried civil case, we will affirm the trial court's judgment unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law.Smith I,67 S.W.3d at 745.

III.LEGAL ANALYSIS

For ease of analysis, we have not followed the order of Ms. Smith's points relied on.We have grouped all six of the points relating to child support and college expenses together.We have further grouped all of the points relating to the Form 14 calculation together.We have then addressed her remaining point on attorney's fees and Mr. White's cross-appeal.

A.Inclusion of Insurance Costs for Two Dependents (Point I)

In her first point, Ms. Smith contends that the trial court erred by including the cost of insurance for two dependents in its Form 14 calculation, since Scott is now emancipated and Ms. Smith is no longer obligated to pay for his support.Ms. Smith concedes that she has failed to preserve this first point for appellate review.She requests that we review the point for plain error.In our discretion, we may consider "[p]lain errors affecting substantial rights" when we find that "manifest injustice or miscarriage of justice has resulted therefrom."Rule 84.13(c).We rarely review for plain error in civil cases, however.Roy v. Mo. Pac. R.R. Co.,43 S.W.3d 351, 363-64(Mo.App. W.D.2001).Even then, the appellant may not invoke plain error "to cure the mere failure to make proper and timely objections."Id.(quotingGuess v. Escobar,26 S.W.3d 235, 241(Mo.App. W.D.2000)).

This case involves "the mere failure to make proper and timely objections" because Ms. Smith submitted a Form 14 worksheet listing the same amount for health insurance costs—$227 per month— as the trial court listed in its own Form 14.Far from objecting to this amount, she embraced it.Accordingly, we decline to review this point for plain error.

B.Failure to Include Mr. White's Insurance Benefits as Gross Income Under Form 14 (Point V)

Ms. Smith asserts that the trial court erred in its Form 14 calculation by failing to include as gross income to Mr. White $286 in medical and dental insurance premiums paid by his employer.

For purposes of computing the presumed child support amount in Form 14, "income" consists of "a financial benefit or money received by a parent that could have a positive impact on the parent's ability to support the parent's children."DIRECTIONS, COMMENTS FOR USE AND EXAMPLES FOR COMPLETION OF FORMNO. 14, Line 1:Gross Income,A.COMMENT.The Directions further specify that "significant employment-related benefits may be included, in whole or in part, in `gross income' in appropriate circumstances."Id.,Line 1: Gross Income,DIRECTION(emphasis added).Employer-provided insurance benefits fall within this category.Farr v. Cloninger,937 S.W.2d 760, 764(Mo.App. S.D.1997)(trial court did not err in considering employer-provided insurance benefits as part of father's...