Souci v. Souci, SD 29247.

• Decision Date: 28 April 2009
• Docket Number: No. SD 29247.,SD 29247.
• Citation: 284 S.W.3d 749
• Parties: In re the Marriage of: Timon Sans SOUCI, Appellant, v. Sherri Sans SOUCI, Respondent.
• Court: Missouri Court of Appeals

284 S.W.3d 749

In re the Marriage of: Timon Sans SOUCI, Appellant, v. Sherri Sans SOUCI, Respondent.

No. SD 29247.

Missouri Court of Appeals, Southern District, Division One.

April 28, 2009.

Motion for Rehearing or Transfer Denied May 14, 2009.

David S. Smith, Cuba, for Appellant.

Justin E. Head, Union, for Respondent.

ROBERT S. BARNEY, Judge.

Appellant Timon Sans Souci ("Husband") appeals the "Amended Judgment of Dissolution of Marriage" entered by the trial court which dissolved his marriage to Respondent Sherri Sans Souci ("Wife"). Husband asserts six points of trial court error. For ease of analysis we shall address Points V and VI of Husband's points relied on out of order.

The record reveals the parties were married in Iroquois County, Illinois, on May 21, 1988, and there were three children born of the marriage.¹ The parties had been residing in Missouri since 1995 and separated in November of 2006. Husband filed his "Petition for Dissolution of Marriage" on January 11, 2007, and Wife filed her "Cross Petition for Dissolution of Marriage" on February 9, 2007. At the time of trial, Husband was employed with Lowe's Corporation as he had been for the previous seven years and Wife was employed at the Bank of Sullivan, where she had been employed for "two or three years." The parties submitted a Joint Parenting Plan to the trial court and each submitted a proposed Form 14 relating to child support based on their own calculations.²

The trial court entered its Amended Judgment on April 29, 2008.³ In its judgment, the trial court, inter alia, divided the parties' marital property and debts; adopted the parties' "Joint Parenting Plan;" granted monthly maintenance to Wife in the amount of $750.00; ordered Husband to pay monthly child support in the total amount of $977.00; and ordered Husband to pay a portion of Wife's attorney fees in the amount of $3,000.00. This appeal followed.

The standard for reviewing a judgment of dissolution is the same as in any court-tried action. Gryder v. Gryder, 129 S.W.3d 467, 470 (Mo.App.2004). The decree must be affirmed unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. In re Marriage of Reese, 155 S.W.3d 862, 869 (Mo.App.2005); Rule 84.13(d).⁴ "We do not retry the case, rather we accept as true the evidence and reasonable inferences therefrom in a light most favorable to the prevailing party and disregard contradictory evidence." McCallum v. McCallum, 128 S.W.3d 62, 65 (Mo.App. 2003). "The trial court is free to accept or reject all, part, or none of the testimony of a witness." Holtgrewe v. Holtgrewe, 231 S.W.3d 233, 235 (Mo.App.2007). We defer to the trial court's determinations of credibility in making our review. In re Marriage of Colley, 984 S.W.2d 163, 166 (Mo. App.1998).

Husband's first two points relied on are directed at the trial court's award of child support entered against Husband in the amount of $977.00 per month. We shall address these points conjunctively. In his first point relied on, Husband asserts the trial court erred in ordering child support in the total amount of $977.00 per month because such an order violated Rule 88.01 "in that the [F]orm 14 calculation did not account for the maintenance that Husband was ordered to pay to Wife." In his second point relied on Husband maintains the trial court erred in the amount of child support awarded because such an award "was an abuse of discretion in that it was based upon an assessment of monthly gross income amounts of the parties that was against the weight of the evidence."

In determining the amount of child support to award in a dissolution proceeding, the trial court must follow section 452.340, RSMo Cum.Supp.2007,⁵ and Rule 88.01. Sieg v. Sieg, 255 S.W.3d 20, 23 (Mo.App.2008). In the first step in calculating child support, the trial court must use Form 14 to "determine for the record the presumptively correct child support amount." Id.; see Rule 88.01(b). "In determining the presumed child support amount under the first step, the circuit court can either accept one of the parties' Form 14 calculations or reject both parties' calculations and prepare its own Form 14." Sieg, 255 S.W.3d at 23. "In step two, the circuit court must consider whether or not to rebut the presumed correct child support amount, as found by the court, as being unjust or inappropriate after consideration of all relevant factors." Id.

In its comments for use of Form 14, the Missouri Court Rules set out the following explanation:

Line 1a: Adjustment to gross income for maintenance being received

DIRECTION: Enter the monthly amount of any court order for maintenance to the extent of the amounts actually being received toward current maintenance.

A. COMMENT: If the court is establishing both child support and maintenance, the court shall first determine the appropriate amount of maintenance. This amount shall be included as an addition to the gross income (line 1a) of the parent receiving the maintenance and as a reduction in the gross income (line 2b) of the parent paying the maintenance.

Missouri Court Rules (2007), Directions, Comments for Use and Examples for Completion of Form No. 14, Vol. 1, p. 419.

Here, the trial court adopted Wife's prepared Form 14 and included it in its judgment in this matter. However, the Form 14 at issue contains no notations relating to the maintenance awarded to Wife such that it appears that amount was not considered in the rendering of the trial court's determination of child support. "Line 1a" of the Form 14 clearly states an amount should be entered for "[c]ourt ordered maintenance being received." Our review of the pertinent Form 14 in question reveals that this line contains no calculation. Further, "Line 2b" of Form 14 plainly states an amount should be entered for "[c]ourt ordered maintenance being paid." Again, this line is also blank. The trial court in this case did not follow the directions set out for completion of the Form 14 in that it "did not make any provisions in its Form 14 calculation for maintenance. ..." Adams v. Adams, 108 S.W.3d 821, 829 (Mo.App.2003). "The [trial] court misapplied the law in failing to properly calculate [the applicable] Form 14" and this "case must be remanded to the trial court for it to correctly recalculate the child support amount to include the amount of maintenance to be paid according to the applicable Form 14 Comments, Directions for Use." Id. Point I has merit.

Additionally, because the court must re-compute the amount of child support we will not address the allegation of error set out in Point II. At its election the trial court will be permitted to receive additional evidence regarding either party's income.

In his third point relied on, Husband asserts the trial court abused its discretion and misapplied the law in dividing the marital estate in that it failed "to properly consider the statutory factors as set out in section 452.330 ... resulting in a division of the marital estate that was grossly unequal and one-sided."

Pursuant to section 452.330.1, the trial court in a dissolution proceeding is required to divide marital property and debts in such proportions as the court deems just after considering all relevant factors set out therein. See Rivers v. Rivers, 21 S.W.3d 117, 122 (Mo.App.2000). When dividing the marital property per section 452.330.1, the trial court must consider all the factors including: (1) "the economic circumstances of each spouse at the time the division of property is to become effective ...;" (2) how each spouse contributed "to the acquisition of the marital property, including the contribution of a spouse as homemaker;" (3) "[t]he value of the [non-marital] property set apart to each spouse;" and (4) the conduct of each spouse during the marriage. "Those factors listed in section 452.330.1 are not exhaustive, and the trial court has `great flexibility and far-reaching power in dividing the marital property.'" Long v. Long, 135 S.W.3d 538, 542 (Mo.App.2004) (quoting Farley v. Farley, 51 S.W.3d 159, 165 (Mo.App.2001)). There is no set formula concerning the weight given to the factors considered under section 452.330. Kester v. Kester, 108 S.W.3d 213, 224 (Mo.App. 2003). "`Disparity in the value of marital property awarded each spouse is justified if any of the relevant factors, statutory or otherwise, justify an unequal division.'" Long, 135 S.W.3d at 542 (quoting Hayes v. Hayes, 792 S.W.2d 428, 431 (Mo.App. 1990)).

A trial court is given broad discretion in dividing property in a dissolution action, and we will interfere with its decision only if the division is so unduly weighted in favor of one party that it amounts to an abuse of discretion. Kirkwood v. Kirkwood, 77 S.W.3d 675, 680 (Mo.App.2002). The trial court abuses its discretion only when its ruling is "clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock one's sense of justice and indicate a lack of careful consideration." In re Marriage of Holden, 81 S.W.3d 217, 225 (Mo App.2002). "The division of property is presumed to be correct, and the party challenging the division bears the burden of overcoming the presumption." Rivers, 21 S.W.3d at 123. "The fact that the trial court awarded one party a considerably higher percentage of the marital property than it awarded the other is not per se an abuse of discretion." Id. "The division of marital property need not be equal, but must only be fair and equitable given the circumstances of the case." Nelson v. Nelson, 25 S.W.3d 511, 517 (Mo.App.2000).

Husband testified at trial that he earned an average gross monthly income of $5,255.00 or $63,071.02 per year. During the pendency of the petition, Husband had been voluntarily paying Wife $1,600.00 a month to help "her maintain the household and do what she needed to do with it." Husband admitted he had been...