Opinion
No. WD 55912
Date: May 25, 1999 Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 1999. Application for Transfer Denied August 24, 1999.
APPEAL FROM CIRCUIT COURT OF JACKSON COUNTY, HON. CHRISTINE T. SILL-ROGERS, J.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
James T. Cook, Kansas City, for Appellant.
Karen A. Plax, Kansas City, for Respondent.
Before: SPINDEN, P.J., and LOWENSTEIN and EDWIN H. SMITH, JJ.
Mary M. "Pat" Laubinger appeals from the circuit court's orders pendente lite (PDL) entered in her dissolution of marriage proceeding, requiring her to pay: (1) temporary child support of $1,412 per month starting April 1, 1998, and $14,056 in retroactive support from March 1, 1997, to March 30, 1998, calculated at $1,004 per month; (2) attorney's fees of $5,000; and (3) costs of $2,500 to the respondent, Dwayne C. Laubinger.
The appellant raises six points on appeal. In her Points I and II, she claims that the trial court erred in entering its PDL orders without granting her request for a hearing and while proceeding under Sixteenth Judicial Local Circuit Court Rule 68.04 because it violated her due process rights. In her Points III and IV she claims the trial court erred in awarding temporary child support of $1,412 per month commencing April 1, 1998, because:
(1) it misapplied the law in calculating the correct amount to award in that it used an improper version of Form 14; and (2) its finding as to the respondent's gross monthly income in calculating the presumed correct child support amount (PCCSA) pursuant to Form 14 was against the weight of the evidence. In Point V she claims the trial court erred in awarding retroactive temporary support of $14,056, calculated at the rate of $1,004 per month, because: (1) in doing so, it misapplied the law in that the award was made retroactive to March 1, 1997, which was prior to the date the respondent's application was made; (2) the respondent did not have custody of the child for whom support was due, Seth, until March 18, 1997; and (3) it failed to award her credit against the award for amounts paid by her on behalf of the child in the respondent's custody. In Point VI, she claims the trial court's awards of temporary attorney's fees and costs were against the weight of the evidence.
The PDL orders of the circuit court awarding the respondent temporary child support retroactive to March 1, 1998, in the amount of $14,056; temporary attorney's fees of $5,000; and temporary costs of $2,500 is affirmed. The PDL order of the circuit court awarding the respondent child support in the amount of $1,412 per month, commencing April 1, 1998, is reversed, and the cause is remanded to the trial court for a determination of the correct amount of child support in accordance with this opinion.
Division I holds:
In her first point, the appellant claims that Local Rule 68.04 is void for vagueness because it does not specify when or whether a hearing is required on applications for orders PDL. Because Local Rule 68.04 was clearly implicated at the time the respondent filed his application for orders PDL, the appellant had standing to challenge the rule at that time. However, she raised this issue for the first time on appeal. Constitutional challenges must be raised at the earliest opportunity in order to preserve them for review. Because the appellant did not raise this issue in her response to the respondent's application or in her request for an oral hearing, she waived her claim that the rule is unconstitutionally vague.
In her second point, the appellant claims that her due process rights were violated by entering orders PDL for temporary child support, attorney's fees, and costs because she did not have an opportunity to be heard. The appellant does have a constitutionally protected interest in the wages and financial assets that she will be required to expend in order to satisfy the orders PDL. However, because this deprivation might only be temporary, we are not convinced that it rises to the level of a "taking." Because we decide this issue on another ground, we will assume, without deciding, that a taking did occur.
To comply with due process, a party who suffers a taking must be provided with notice and an opportunity to be heard. There is no dispute here that the appellant had notice of the orders PDL. She claims, however, that she was denied an opportunity to be heard because she did not receive a formal, oral hearing before the entry of the orders PDL. In determining what process is required, we must consider the private interest affected, the risk of erroneous deprivation, and the government's interest. Because the appellant will, at most, suffer a temporary deprivation of her wages and financial assets, her private interest does not weigh heavily in requiring an oral hearing on orders PDL. Further, the risk of erroneous deprivation here is small. Both parties were allowed to offer extensive financial information to the trial court. Such an opportunity to present reasons in writing why a proposed action should not be taken is sufficient to satisfy due process and makes the risk of erroneous deprivation very small. Finally, both parties here acknowledged the congestion of the family court docket. To require a formal hearing on every application for orders PDL would only serve to increase the strain on an already over-burdened court. Thus, the government has a strong interest in allowing orders PDL to be entered without a formal, oral hearing. A balancing of the interests here convinces us that the appellant received all the process to which she was constitutionally entitled.
In her third point, the appellant claims that the trial court misapplied the law in awarding child support of $1,412 per month commencing April 1, 1998, because it used an improper version of Form 14 in calculating the amount. There is no dispute here that the trial court, in calculating the award of child support, used a version of Form 14 that had been vacated by order of the Missouri Supreme Court. Implicit in the required use of Form 14 to calculate child support is the trial court's use of the correct version of the form. The presumed correct child support amount calculated pursuant to the proper version of Form 14 is $1,285. As such, we must reverse this portion of the trial court's order and remand for the trial court to enter its order of temporary child support in the amount of $1,285, unless it determines that such amount should be rebutted as unjust or inappropriate.
In her fourth point, the appellant claims that the trial court's findings as to the respondent's gross monthly income was against the weight of the evidence. The court here looked at the respondent's historical income level to determine the proper amount of retroactive child support to award. It looked to his future income capacity to determine the proper amount of prospective child support to award. The trial court was free to use both of these methods. Because the trial court's determination of the respondent's gross monthly income was within the range supported by the evidence, we cannot find that it was against the weight of the evidence.
In her fifth point, the appellant claims that the trial court erred in ordering her to pay retroactive child support from March 1, 1997, through March 30, 1998, because this was prior to the date the motion was filed, she had custody of the child for whom support was requested until March 18, 1997, and she did not receive credit for amounts expended by her on behalf of the child. Trial courts are authorized to order temporary child support retroactive to the date of the filing of the petition for dissolution. The petition here was filed on January 6, 1996. As such, it was within the trial court's discretion to award temporary child support retroactive to March 1, 1997. In reviewing such an award, we view the evidence in the light most favorable to the order. Here, in awarding retroactive support to March 1, 1997, it is clear that the trial court accepted the respondent's contention that the child was in his custody since that time, and we find no error in its order. Further, although the appellant claims to have expended amounts on the child's behalf, she did not indicate the specific amounts expended. As such, this Court cannot convict the trial court of error in failing to credit her with such amounts.
In her sixth point, the appellant claims that the trial court erred in awarding the respondent temporary attorney's fees and costs because the award was against the weight of the evidence. The trial court is considered an expert in the necessity and reasonableness of attorney's fees and in the determination of the value of the services rendered. It has broad discretion in awarding attorney's fees and costs. Both parties here presented extensive information as to the incomes and ability to prosecute the action. Further, the respondent indicated that he needed the award to prosecute the dissolution action and for a business valuation. This was sufficient information from which the trial court could determine a reasonably necessary amount of fees and costs to award, and this Court finds no abuse of discretion in its award.