Wofford v. Wofford, WD
| Decision Date | 11 May 1999 |
| Docket Number | No. WD,WD |
| Citation | 991 S.W.2d 194 |
| Parties | John Leavell WOFFORD, Appellant, v. June Langham WOFFORD, Respondent. 55434. |
| Court | Missouri Court of Appeals |
Nancy Stuver Wallingford, Kansas City, for Appellant.
Jack Grate, Independence, for Respondent.
Before: LOWENSTEIN, P.J., and SPINDEN and HOWARD, JJ.
John L. Wofford ("appellant") appeals from a decree of dissolution which ended his eleven-year marriage to June L. Wofford ("respondent"). Appellant contends that the trial court erred in its assessment of his child support and maintenance obligations and in its division of marital property, and by failing to place a time limitation on its award of maintenance to respondent.
Affirmed in part; reversed and remanded in part.
During the parties' marriage, appellant was employed as an engineer at Burns & McDonnell ("B & M"); respondent's responsibilities were that of homemaker and raising their only child, John Quince Wofford, III, who was born on July 16, 1987. Appellant filed a petition to end their marriage on January 2, 1996, and the decree of dissolution was entered on October 21, 1997. The decree of dissolution awarded the parties joint legal and physical custody of their son, and determined respondent to be the primary residential custodian of the child. In determining appellant's child support obligations, the trial court rejected the Form 14 calculations submitted by both parties. The court determined appellant's income to be $80,914.00 annually or $6,743.00 per month, and ordered appellant to pay $789.52 a month in child support. In addition, appellant was ordered to maintain health and dental insurance for the child.
The court also determined that, because of respondent's lack of employment history and marketable job skills, and the uncertainty of her immediate future employability, she would be imputed an income of $5.25 per hour or $901.00 per month. The trial court ordered appellant to pay her $1,000.00 per month in maintenance, and to pay for her health insurance, up to $180.00 per month.
In his first point on appeal, appellant claims that the trial court erred by including overtime compensation in its calculation of his child support obligation. Appellant contends that his employee classification no longer qualifies him for overtime compensation.
Appellant's claim is based upon a letter from B & M stating that an employee in appellant's position is no longer eligible for overtime. The letter was dated ten days after the entry of the decree of dissolution, and was submitted as an attachment to his motions for a new trial and for reconsideration of the decree of dissolution. These motions were overruled by the trial court, and appellant does not challenge the denial of the motions. What appellant does challenge is the decree itself, and the terms of the decree were fashioned from evidence which did not include the document at issue. We cannot review issues never offered in evidence nor included in the transcript on appeal. Warren v. Drake, 570 S.W.2d 803, 807 (Mo.App. W.D.1978). However, pursuant to our disposition of appellant's second point on appeal, we are remanding the cause for the reception of further evidence, and appellant can properly introduce evidence on this issue on remand.
In his second point on appeal, appellant claims that the trial court erred by including certain employment benefits as part of his income for the purpose of calculating his child support obligation. Appellant contends that these benefits are unrelated to his present ability to pay child support.
In its decree of dissolution, the trial court calculated appellant's annual income to be $80,914.00. The court prepared its own Form 14, in which it stated that its calculations were based upon a document prepared by B & M, and which presented the following summary of appellant's compensation package as of January 1997:
Direct Cash Payments
Base Salary $60,009
Overtime 5,740
Bonus 6,000
EPP Dividend 174
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$71,923
Stock Ownership
Stock Purchased $ 2,760
Cash Contributed to Plan 1,200
-------
$ 3,960
401(k) Savings Plan
Company Match $ 1,144
Special Discretionary Match 763
-------
$ 1,907
Employee Benefits
Health Plan $ 3,027
Life Insurance 11
Accidental Death & Dismemberment 86
Social Security $ 4,146
-------
$ 7,270
Total Current Compensation $85,060
It is clear from these numbers how the trial court arrived at appellant's annual salary. Subtracting the amount of Social Security ($4,146) from the total compensation ($85,060) leaves $80,914, the exact amount of income attributed to appellant in the court's own Form 14. Thus, the trial court included all aspects of appellant's compensation as income for the purposes of child support, with the exception of Social Security.
The employee benefits which the trial court included in calculating appellant's income for Form 14 purposes fall into the following three categories: the employee stock ownership plan (ESOP), B & M's contribution to his retirement plan, and the furnishing of insurance coverage. With respect to the latter two categories, Farr v. Cloninger, 937 S.W.2d 760, 764 (Mo.App. S.D.1997) held that it was not error to consider insurance coverage furnished to an employee as part of Form 14 income because it saved him an expense he would otherwise incur; and (2) it was error to include the employer's contribution to his retirement plan because there was no discernible way it would affect his present ability to pay child support.
Consistent with the holding in Farr v. Cloninger, the trial court in this case did not err by including the insurance coverage furnished to appellant in his Form 14 income, but did err in including B & M's contributions to his 401(k) plan. Were these the only two items at issue, we could affirm the trial court's judgment because the erroneous inclusion totalled $1,907, an amount that was offset by the fact that appellant testified at trial that his actual annual salary had been increased to $62,014, which was $2,005 more than the $60,009 annual salary attributed to him by the trial court, and thus the total amount would have been supported by a consideration of all the evidence.
However, there is also the issue of the ESOP, and the record is not sufficiently clear on whether appellant's participation in the ESOP affects his present ability to pay child support. We do not know to what extent the ESOP contributions at B & M are made by the employer or the employee, or whether the employee has present access to the contents of his ESOP account. ESOP contributions made by the employer and not accessible to the employee until he retires or otherwise leaves his employment are akin to the pension plan situation addressed in Farr v. Cloninger, and would not affect the obligor's present ability to pay child support. On the other hand, if the employee is voluntarily contributing to the ESOP account from his own salary, and he has the option of ceasing those contributions within a reasonable time, the amount of those contributions could be redirected to satisfying his financial obligations under the decree of dissolution. Similarly, if an employee can currently withdraw and sell stock from his account, that too would relate to his present ability to pay child support. Given the record here, we must remand the cause to the trial court to receive evidence on the nature of the ESOP and then reconsider its award of child support. Whitworth v. Whitworth, 878 S.W.2d 479, 484-485 (Mo.App. W.D.1994).
In his third point on appeal, appellant claims that the trial court should have deviated from the Form 14 guidelines and reduced his child support obligation in consideration of the considerable amount of time that the child will be in his custody pursuant to the "Joint Legal and Physical Custody Plan" incorporated into the decree of dissolution.
Although the trial court determined respondent to be the child's primary residential custodian, the decree of dissolution allowed for the child to be with appellant for a substantial portion of the year. The Joint Legal and Physical Custody Plan provides that the child is to stay at appellant's home overnight on Tuesdays and Thursdays, alternate weekends, and on certain holidays. In addition, appellant may take the child for a two-week summer vacation, and a one-week spring break visitation every other year. This means that the child spends more than six out of every fourteen days with appellant.
In Stewart v. Stewart, 988 S.W.2d 622 (Mo.App. W.D.1999), as in the case at bar, the children spent approximately six of every fourteen days with the child support obligor, and this Court concluded that the trial court abused its discretion by failing to take this allocation of time into account in calculating the obligor's child support payments. at p. 626-27. This case is also similar to Stewart in that both cases were tried in 1997, before Form 14 included the current line 11 adjustment based upon the number of days the party has custody of the child during...
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