Opinion
WD74592
11-06-2012
JOHN M. KOHL, Appellant, v. JILL M. KOHL, Respondent.
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY, MISSOURI
The Honorable Patricia S. Joyce, Judge
Before Division Two: Joseph M. Ellis, Presiding Judge,
Alok Ahuja, Judge and Mark D. Pfeiffer, Judge
John Kohl ("Father") appeals from a judgment entered in the Circuit Court of Cole County granting Jill Kohl's ("Mother") motion to modify child support. For the following reasons, the appeal is dismissed, and the case is remanded for further proceedings.
Father and Mother were married on November 21, 1992. Four children were born of the marriage.
On May 26, 2005, the circuit court entered its judgment dissolving the marriage between Father and Mother. The court awarded Father and Mother joint legal and physical custody of the four minor children and incorporated into its judgment the Separation Agreement and Joint Parenting Plan agreed to by the parties. In the settlement agreement, the parties expressly agreed that "the presumed child support amount, as calculated pursuant to Rule 88.01, Section 452.340, and Form 14 is unjust and inappropriate." The separation agreement provided that Father would pay $565.00 per month in child support and awarded him two of the four available tax dependency exemptions.
The judgment provided that the child support amount would be $358.00 per month for the first ten months and then increase to $565.00.
On December 21, 2006, again pursuant to an agreement between Father and Mother, the court entered a judgment increasing Father's child support obligation to $1,309.00 per month. In all other respects, the decree of dissolution was left in full force and effect.
On August 27, 2010, Mother filed a motion to modify the custody and child support. She claimed that circumstances had changed in that (1) the parties' incomes had changed to where there would be more than a twenty percent change in child support, (2) Father was not exercising his Sunday overnight parenting time, (3) business trips caused Father to miss approximately three weeks per year of his parenting time, and (4) more than three years had passed since the last modification.
Following an evidentiary hearing, on July 13, 2011, the circuit court entered its judgment modifying the custody and child support provisions of the previous judgment. In its judgment, the court stated that it was adopting "the attached Form 14" and changing Father's child support obligation to the presumed amount calculated therein. There are actually two different Form 14s attached to the court's judgment but, based upon the amount awarded in the judgment, it is apparent which the court meant to adopt. As to child custody, the court found "that it would be in the best interest of the minor children that the custody/visitation schedule be amended as set forth in the attached parenting plan" and decrees that Father and Mother "are awarded Joint Physical Custody of the minor children as set forth in the attached Parenting Plan." But no parenting plan is attached to the judgment.
Father filed a Motion to Correct or Amend the Judgment. In his motion, Father noted the attachment of two different Form 14s to the judgment and the lack of an attached parenting plan. He argued that the failure to attach the referenced parenting plan results in the judgment not being final. The record does not reflect any subsequent action taken by the trial court in response to Father's motion.
Father also raised in his motion to correct or amend the judgment the issues currently raised on appeal.
While Father does not actively pursue on appeal a claim of error challenging the trial court's failure to attach a parenting plan to the judgment, he does raise challenges implicating rulings purportedly made in the parenting plan that were not contained in the language of the judgment. Moreover, where the judgment purports to change the previous custody provisions but fails to provide a schedule of the parenting time being awarded in either the judgment or an attached parenting plan, the judgment is clearly deficient and fails to resolve an extremely pertinent issue before the court.
On appeal, Father claims the trial court erred in awarding Mother all four tax exemptions related to the children. He was originally awarded two of the four exemptions in the stipulated parenting plan adopted in and attached to the dissolution decree. The present judgment contains no reference whatsoever to tax exemptions and any such error was purportedly made in the parenting plan that was not attached to the judgment. The provisions of the parenting plan could also be implicated in resolving Father's claim on appeal that the trial court failed to provide him with a proper credit for the overnight parenting time awarded in the judgment.
Section 452.375.9 dictates that "[a]ny judgment providing for custody shall include a specific written parenting plan setting forth the terms of such parenting plan arrangements specified in subsection 7 of section 452.310." See also In re Marriage of Peterson, 39 S.W.3d 580, 582-83 (Mo. App. S.D. 2001) (dismissing appeal where the judgment claimed to adopt an attached parenting plan but no parenting plan was attached and the particulars of the parenting plan could not be gleaned from the record). While concluding that it was in the best interests of the children to change the custody schedule and stating that it was adopting an attached parenting plan that it found to be in the best interests of the children, the trial court failed to attach any such plan to the judgment, and nothing in the judgment, the transcript, or anywhere else in the record identifies or describes the parenting plan being adopted by the court.
All statutory references are to RSMo 2000 unless otherwise noted.
"Such plan may be a parenting plan submitted by the parties pursuant to section 452.310 or, in the absence thereof, a plan determined by the court, but in all cases, the custody plan approved and ordered by the court shall be in the court's discretion and shall be in the best interest of the child." § 452.375.9. Section 452.310.7 provides:
The petitioner and respondent shall submit a proposed parenting plan, either individually or jointly, within thirty days after service of process or the filing of the entry of appearance, whichever event first occurs of a motion to modify or a petition involving custody or visitation issues. The proposed parenting plan shall set forth the arrangements that the party believes to be in the best interest of the minor children and shall include but not be limited to:
(1) A specific written schedule detailing the custody, visitation and residential time for each child with each party including:
(a) Major holidays stating which holidays a party has each year;
(b) School holidays for school-age children;
(c) The child's birthday, Mother's Day and Father's Day;
(d) Weekday and weekend schedules and for school-age children how the winter, spring, summer and other vacations from school will be spent;
(e) The times and places for transfer of the child between the parties in connection with the residential schedule;
(f) A plan for sharing transportation duties associated with the residential schedule;
(g) Appropriate times for telephone access;
(h) Suggested procedures for notifying the other party when a party requests a temporary variation for the residential schedule;
(i) Any suggested restrictions or limitations on access to a party and the reasons such restrictions are requested;
(2) A specific written plan regarding legal custody which details how the decision-making rights and responsibilities will be shared between the parties including the following:
(a) Educational decisions and methods of communicating information from the school to both parties;
(b) Medical, dental and health care decisions including how health care providers will be selected and a method of communicating medical conditions of the child and how emergency care will be handled;
(c) Extracurricular activities, including a method for determining which activities the child will participate in when those activities involve time during which each party is the custodian;
(d) Child care providers, including how such providers will be selected;
(e) Communication procedures including access to telephone numbers as appropriate;
(f) A dispute resolution procedure for those matters on which the parties disagree or in interpreting the parenting plan;
(g) If a party suggests no shared decision-making, a statement of the reasons for such a request;
(3) How the expenses of the child, including child care, educational and extraordinary expenses as defined in the child support guidelines established by the supreme court, will be paid including:
(a) The suggested amount of child support to be paid by each party;
(b) The party who will maintain or provide health insurance for the child and how the medical, dental, vision, psychological and other health care expenses of the child not paid by insurance will be paid by the parties;
(c) The payment of educational expenses, if any;
(d) The payment of extraordinary expenses of the child, if any;
(e) Child care expenses, if any;
(f) Transportation expenses, if any.
While Father attempts to proceed on appeal under an assumption that the trial court adopted the parenting plan attached to Mother's petition, nothing in the record allows for that assumption. The trial court certainly never stated that it was adopting Mother's parenting plan.
"An appellate court has jurisdiction only over final judgments." In re Marriage of Peterson, 39 S.W.3d at 584 (internal quotation omitted). "A judgment, order, or decree of the trial court is final and appealable only when it disposes of all the issues for all the parties in the case and leaves nothing for future determination." Id. (internal quotation omitted).
In this case, among other issues, Mother asked the court to modify the custody schedule and to modify the original decree to award all four dependency tax exemptions to her. These issues were not resolved in the judgment entered by the trial court, at least in the absence of the parenting plan the court sought unsuccessfully to attach thereto. Accordingly, the appeal must be dismissed, and the case must be remanded for further proceedings consistent with this opinion.
______________________
Joseph M. Ellis, Judge
All concur.