Wilson v. Whitney

• Decision Date: 14 May 2002
• Docket Number: SD23901
• Citation: Wilson v. Whitney, 81 S.W.3d 172 (Mo. App. 2002)
• Parties: Celeste Marianne Wilson (Whitney), Plaintiff-Appellant v. Michael Dean Whitney, Defendant-Respondent 23901, 24014 & 24288 Missouri Court of Appeals Southern District 0
• Court: Missouri Court of Appeals

Celeste Marianne Wilson (Whitney), Plaintiff-Appellant v Michael Dean Whitney, Defendant-Respondent

23901, 24014 & 24288

Missouri Court of Appeals Southern District

05/14/2002

Appeal From: Circuit Court of Greene County, Hon. Don Burrell, Jr., Circuit Judge

Counsel for Appellant: Craig F. Lowther, Randy J. Reichard

Counsel for Respondent: C. Ronald Baird, Mark J. Millsap, and J. Matthew Miller

Opinion Summary: None

Garrison, P.J., and Rahmeyer, J., concur

John E. Parrish, Judge

N0. 23901 DISMISSED;NO. 24014 AFFIRMED;NO. 24288 REVERSED AND REMANDED WITH DIRECTIONS

AppealNos. 23901and24014 are appeals of judgments of modification of child support.No. 24288 is an appeal of a judgment dismissing a contempt proceeding directed to respondent's failure to pay medical expenses.This court granted a motion to consolidate the appeals.For the reasons that follow, No. 23901 is dismissed, No. 24014 is affirmed, and No. 24288 is reversed and remanded for further proceedings in accordance with this opinion.

AppellantCeleste Marianne Wilson's (formerly Celeste Marianne Whitney) and respondentMichael Dean Whitney's marriage was dissolved July 30, 1990.The parties have three children who were unemancipated minors at the time of the dissolution.They were awarded joint legal custody of the children.Appellant was awarded primary physical custody.Respondent was ordered to pay child support in the amount of $316.66 per month per child and to provide health insurance for the children.The parties' "Marital Settlement and Separation Agreement" was found "fair, reasonable and not unconscionable."The agreement was attached to and made part of the dissolution judgment.The parties were ordered to perform "the covenants" of the agreement.

The separation agreement includes the following:

The parties agree that Wife [appellant] is entitled to collect child support from Husband [respondent] in accordance with the Missouri Child Support Guidelines and further agree that the amount of support to be paid by Husband will be recalculated every eighteen (18) months to take into consideration any changes in the income of either party and that Husband will pay support in accordance with the guidelines except that he will not pay a sum less that [sic] the amount provided for herein unless his income declines, . . . or unless it increases to a level that additional support would be required to comply with the guidelines.The parties further agree that a change in the incomes or a demonstrated lifestyle inconsistent with the reported income of the parties shall be sufficient grounds for modifying the Decree of Dissolution herein entered and that it shall not be necessary for either party to allege changed circumstances to effect a modification of child support under this provision.

In order to facilitate calculation of child support pursuant to the preceding paragragh [sic], Husband and Wife shall every year each deliver to a trustee agreed upon by the parties, a copy of his or her federal and state income tax returns within five days after the return is filed and that child support shall be calculated by the trustee in accordance with the Child Support Guidelines then in effect.The parties agree that only their own incomes, and not the income of a spouse, shall be used in calculating child support, unless Husband's spouse is employed by a business owned by Husband or by Husband's father, in which case such income shall be included in the calculation.The parties further agree that the trustee shall not disclose either party's income to the other and that Wife shall not be required to provide tax returns for any year when she is not employed.

Appellant filed a motion to modify the dissolution judgment on October 14, 1994.The motion to modify requested that child support be "recalculated according to the Child Support Guidelines."It requested the trial court to "award an amount [of child support] as to [the trial] Court seems just and fair in the circumstances, and in the best interests of the children."

Appellant also filed a motion requesting that respondent be held in contempt.The motion alleged respondent"willfully failed and refused to . . . pay all reasonable and necessary medical expenses incurred for the children, including the annual deductible, which are not covered by insurance."It further alleged respondent"had the ability to abide by the [trial] Court's Decree but has willfully failed and refused to do so . . . ."The motion requested "an order compelling Respondent to pay [appellant] the sums she expended and that Respondent was ordered to pay; that Respondent be confined in an appropriate penal institution until such time as he shall purge himself of contempt by abiding by the Court Order."It sought attorney fees for appellant and suit money.

The motion to modify was tried June 13, 2000, before a family court commissioner.The case was taken under submission.The commissioner filed Findings and Recommendations on Modification of Decree of Dissolution September 22, 2000.The document includes a recommended Judgment of Modification of Decree of Dissolution.The family court judge signed the proposed judgment that date.Appellant filed a motion for rehearingOctober 6, 2000, and prior to the trial court acting on that motion, a notice of appeal October 16, 2000.It is appeal No. 23901.

On November 6, 2000, the family court judge remanded the case to the commissioner "for limited purpose of reconsidering whether amended findings should be entered concerning the imputation of income to respondent based on trips and attorney fees paid by his employer."On November 27, 2000, the family court commissioner conducted a hearing on the issues for which the case was remanded.The commissioner filed Supplemental Findings and Recommendations on December 1, 2000.The family court judge adopted the commissioner's findings and recommendations.The judge declared those determinations and the previous determinations of the commissioner as the final judgment.The judgment was entered December 1, 2000.Appellant filed a notice of appeal directed to that judgment December 22, 2000.It is appeal No. 24014.

The trial court granted modification of the child support provision of the dissolution judgment.It found two of the parties' children were emancipated and ordered child support as to them "abat[ed] retroactively" as of the respective dates they became emancipated.Child support for the remaining child was increased to $682 per month.In determining child support, the trial court found the provisions in the dissolution judgment that provided for periodic "recalculation" of child support and directed that if husband's spouse was employed by husband or husband's father, her income would be included in the child support calculations, void and unenforceable; that those provisions "[did] not comply with Supreme Court Rule 88.01 and the Form 14 guidelines."

The motion for contempt was heard January 25, 2001.The family court commissioner filed Findings and Recommendations on Motion for Contempt on May 15, 2001.The commissioner found the parties had stipulated that the evidence did not substantiate the motion for contempt; that the contempt proceeding should be dismissed.The family court judge adopted the findings and recommendations and entered a judgment of dismissal in the contempt proceeding.Appellant filed a notice of appeal as to that judgment May 22, 2001.It is appeal No. 24288.No. 23901

The notice of appeal that produced No. 23901 is directed to the "Judgment of Modification of Decree of Dissolution" entered September 22, 2000, prior to the family law judge's remand for additional findings.Appellant filed a motion for rehearingOctober 6, 2000, within the time permitted by Rule 78.04 for filing motions for new trial or motions to amend a judgment.SeeRule 73.01.Following appellant's filing of the motion for rehearing, the family law judge remanded the case to the commissioner for further hearings.After additional hearings, the commissioner filed a further report.The family law judge entered a new judgment adopting the commissioner's additional recommendations December 1, 2000.

Appellant's motion alleged the trial court committed errors of fact or law in the trial of her motion for modification of the dissolution judgment.Because the motion alleged trial court errors, it is treated as a motion for new trial.Farmers State Bank v. Place-Wiederholt Chevrolet-Oldsmobile, Inc., 747 S.W.2d 170, 172(Mo.App.1988).See alsoDowning v. Howe, 60 S.W.3d 646, 648(Mo.App.2001);Crist v. Director, Div. of Family Services, 775 S.W.2d 266, 266-67(Mo.App.1989).

Rule 78.01 provides, as applicable here:

. . . On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact or make new findings, and direct the entry of a new judgment.

The family court judge directed entry of a new judgment by accepting the recommendations of the commissioner.The December 1, 2000, judgment replaced the earlier judgment to which No. 23901 is directed.AppealNo. 23901 is, therefore, moot and is dismissed.No. 24014

Appellant's Point I is directed to the trial court findings that the provisions regarding calculation of child support in the separation agreement were void and unenforceable.Point I argues the "ruling was an erroneous declaration and application of the law and against the weight of the evidence in that the provision to include a spouse's income from a family business in the calculation of child support would only serve to benefit the children and was freely entered into between the parties and approved by the original trial court and at least should have been considered by the [trial] court in support of a deviation from the Form 14 amount."

Rule 88.01 provides:

(a) When determining the correct amount of...