Opinion
No. ED 86025
August 8, 2006
Appeal from the Circuit Court of St. Charles County, Honorable Grace Munson Nichols.
David G. Waltrip, Chad S. Stockel, Attorneys at Law, Spoeneman, Watkins, Waltrip Harvell, LLP, Clayton, MO, for Appellant.
Jane E. Tomich, Attorney at Law, Knight Tomich, St. Charles, MO, For Respondent.
Appellant, Mark Russell ("Father"), appeals from the judgment of the Circuit Court of St. Charles County, following a hearing, granting Respondent's, Kimberly Russell N/K/A Kimberly Bichsel ("Mother"), motion to modify the terms of the parties' dissolution judgment with respect to custody of their child, child support, and attorneys' fees. Father claims the trial court erred in ordering a decrease in the amount of time he is awarded physical custody of their child, ordering an increase in the amount of child support he is obligated to pay Mother, and awarding Mother attorneys' fees. We affirm in part and reverse and remand in part, and move to transfer this case to the Missouri Supreme Court.
Mother and Father's marriage was dissolved on June 12, 2000. One child was born of the marriage: a daughter born on July 24, 1997 ("Child"). The parties' dissolution judgment ("the original dissolution judgment") pertained to, inter alia: custody of Child, child support, tax exemption status of Child, and payment of Child's educational expenses.
The relevant terms of the original dissolution judgment are as follows: Mother and Father were awarded "joint legal and physical custody of [Child]." As a minimum, Father was awarded temporary custody of Child "[e]very weekend beginning at 6:00 p.m. Friday through and ending at 11:00 a.m. the following Monday," on alternating holidays and special days, and for one-half of the summer. The court ordered Father to pay Mother child support in the amount of $449 per month for Child. At the time of the original dissolution judgment, Mother was employed at Gateway Medical Research ("Gateway") and earning a monthly gross income of $1,192, and Father was employed by United Parcel Service and earning a monthly gross income of $4,300. Father was awarded tax exemption status for Child in even numbered years, and Mother was awarded tax exemption status for Child in odd numbered years. In addition, each party was ordered to pay for one-half of Child's educational expenses.
On March 1, 2004, Mother filed a motion to modify the terms of the original dissolution judgment pertaining to custody of Child, child support, tax exemption status of Child, and payment of Child's educational expenses. Mother alleged that a substantial and continuing change of circumstances had taken place rendering the original dissolution judgment unreasonable and not in Child's best interest. Specifically, Mother alleged that: (1) "[Father] has failed to exercise his period of temporary custody . . .," (2) "[Father's] income has increased and [Child's] expenses have increased . . .," (3) "[Mother] is in need of the tax exemption status for [Child] each year instead of alternating years," and (4) Father agreed to pay for all of Child's private schooling, but has failed to do so. Mother prayed for the court to rearrange Father's temporary custody in the best interests of Child, increase the amount of child support Father is obligated to pay Mother, grant Mother tax exemption status for Child every year, and determine the amount Father owed Mother for private schooling. Mother also requested attorneys' fees.
After Father filed an answer to Mother's motion to modify, the trial court held a hearing on Mother's motion to modify on November 3, 2004.
Subsequently, on December 7, 2004, the trial court entered a modification judgment granting in part and overruling in part Mother's motion to modify ("the original modification judgment"). The trial court granted Mother's motion to modify with respect to custody of Child, child support, and attorneys' fees. Pertaining to custody of Child, the court found ". . . the original physical custody arrangement of the parties [is] not in [Child's] best interest, therefore weekend visitation for [Father] should be changed to Saturday at 9:00 a.m. every weekend except for one weekend per month. . . ." The holiday, special day, and summer schedules from the original dissolution judgment were left in place. With respect to child support, the court found that ". . . based upon the parties' incomes and the [c]ourt's Form 14, there has been a substantial change of circumstances as to the amount of child support and a more than a [sic] 20% increase from the original Form 14. . . ." Consequently, the court increased the amount Father is obligated to pay Mother for child support from $449 to $623 per month. In addition, the court awarded Mother $1,000 in attorneys' fees. The court overruled Mother's motion to modify with respect to tax exemption status of Child and payment of Child's educational expenses.
On December 7, 2004, the trial court entered an amended modification judgment which found in relevant part that "[Mother] shall have the third weekend of each month, or [Father's] assigned military drill weekend," in addition to Mother's regularly scheduled and special day periods of custody. This appeal by Father followed.
In his first point on appeal, Father contends the trial court erred in ordering a decrease in the amount of time he is awarded physical custody of Child. In oral argument, Father stated that he only disputes the part of the original modification judgment that takes away his temporary custody of Child on Friday nights.
We will affirm a trial court's judgment modifying child custody unless it is unsupported by substantial evidence, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Leazer v. Leazer, 119 S.W.3d 597, 599 (Mo.App.E.D. 2003). We view the evidence and inferences therefrom in the light most favorable to the judgment and disregard all evidence and inferences to the contrary. Id.
In his first sub-point on appeal, Father contends the trial court erred in ordering a decrease in the amount of time he is awarded physical custody of Child because the court erroneously declared and applied the law. Father maintains the trial court erroneously declared Baker v. Welborn, 77 S.W.3d 711 (Mo.App.S.D. 2002) to be the law and erroneously applied section 452.400.2, RSMo 2000 in its determination of whether modification of physical custody was appropriate. Specifically, the trial court found:
All statutory references are to RSMo 2000, unless otherwise indicated.
. . . there has been a change in circumstances so as to make the original physical custody arrangement of the parties not in the child's best interest, therefore weekend visitation for [Father] should be changed to Saturday at 9:00 a.m. every weekend except for one weekend per month in that it would be in the best interest of the child as testified to by the parties that each parent have some time during the week or weekend when they can have interaction with the child when not required to work and the child is not required to attend school. Such modification of the physical custody schedule is not a "drastic" change and therefore, to modify the physical custody [the court] merely needs to find that the modification would be in the best interest of the child, which the [c]ourt so finds.
Baker v. Welborn [citation omitted] (emphasis added).
The court further found that pursuant to Baker, "the law does not require a showing of a substantial and continuing change of circumstances to make said modification in the physical custody [arrangement]."
There are two different standards for modification of a prior custody arrangement: section 452.410.1 and section 452.400.2.
Section 452.410.1 provides in pertinent part that:
". . . the court shall not modify a prior custody decree unless . . . it finds . . . that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child. Section 452.410.1.
Such a change in circumstances must be "substantial." Searcy v. Seedorff, 8 S.W.3d 113, 117 (Mo.banc 1999). Thus, in order for a court to modify a prior child custody decree under section 452.410.1, the court must find that: (1) a substantial change has occurred in the circumstances of the child or his custodian; and (2) the modification is necessary to serve the best interests of the child. See LaRocca v. LaRocca, 135 S.W.3d 522, 525 (Mo.App.E.D. 2004).
In contrast, section 452.400.2 provides in relevant part that:
[t]he court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child. . . . Section 452.400.2.
Accordingly, in order for a court to modify an order granting or denying visitation rights under section 452.400.2, the court must only make a finding as to why the ordered visitation would serve the best interests of the child. See Speer v. Colon, 155 S.W.3d 60, 61 n. 7 (Mo.banc 2005).
There is a currently a split between the Southern District and the Western District as to when a trial court should apply section 452.410.1, as opposed to section 452.400.2, in its determination of whether modification of a prior custody arrangement is appropriate. See Baker, 77 S.W.3d. 711; See Timmerman v. Timmerman, 139 S.W.3d 230 (Mo.App.W.D. 2004).
The Southern District, in Baker, held that "the requirements for modifying rights of parents following a dissolution of marriage must be determined on a case-by-case basis regardless of the terminology used in the judgment that is sought to be modified."
77 S.W.3d. at 718. The court found that when the time a parent is allowed to have a child under his or her care or supervision is, considering the entire custody plan, altered significantly or drastically by the court's modification, then a change of custody occurs, requiring the application of section 452.410.1. See id. However, if the time a parent is allowed to have a child under his or her care and supervision is altered to a lesser extent, then a change of visitation rights occurs, requiring the application of section 452.400.2 Id. at 718, 719. In other words, it is the substance of the modification, rather than the designation of the physical custody award in the original dissolution judgment, that is important in assessing whether to apply section 452.410.1 or section 452.400.2. See id. at 718.
However, in Timmerman, the Western District, en banc, explicitly rejected Baker in favor of a bright line test. 139 S.W.3d at 236. The Western District held that if the original dissolution judgment characterizes a physical custody award as joint physical custody, then an attempt to modify the time that either parent has a child under his or her care and supervision is an attempt to modify custody, requiring the application of section 452.410.1. Id. at 236. In contrast, if the original dissolution judgment characterizes a physical custody award as sole physical custody with visitation rights to the other parent, an attempt to modify the judgment is an attempt to modify visitation, requiring the application of section 452.400.2 with two exceptions: (1) an attempt to change sole physical custody from one parent to another is an attempt to modify custody requiring the application of section 452.410.1 and (2) an attempt to change sole physical custody to joint physical custody is an attempt to modify custody requiring the application of section 452.410.1. Id.
In this case, Father argues that the Western District correctly states the law and Mother argues that the Southern District correctly states the law.
Our court has alluded to what we believe is the correct law inLaRocca, when we found that "[t]he designation of physical custody as joint physical custody, as opposed to sole or primary physical custody with visitation rights for the other parent . . . determines the standard for future modification of the physical custody arrangement." LaRocca, 135 S.W.3d at 525. However, because the issue of the standard for modification of a physical custody arrangement was not a matter raised on appeal in LaRocca, it appears that this precise issue is a matter of first impression here in the Eastern District.
As noted in Timmerman, the Southern District approach and the Western District approach are both imperfect. See 139 S.W.3d at 235, 236 n. 6.
One problem with the Southern District approach is the lack of a bright line test, which could lead to confusion and inconsistency from case to case. Id. at 235. Under the Southern District approach, "a trial court would be forced to decide whether the modification it wants to make is significant, drastic, or something less before it could determine what standard of proof to apply to the evidence." See id. We agree with the Western District that this approach is impractical or illogical because it leaves the determination of what standard of proof to apply until the end of the case. See id.
There is also the possibility of an illogical result when the Western District approach is applied. Id. at 236 n. 6. For example, a joint custodial parent who seeks only a minor modification of his parenting time would have to prove a substantial change in circumstances, while a parent with visitation rights seeking a major modification of his parenting time would only have to prove such a change would be in the best interests of the child. Timmerman, 139 S.W.3d at 236 n. 6.
As discussed above, the parent would also have to prove that the modification is necessary to serve the best interests of the child.
Nevertheless, because the Southern District approach leaves the determination of whether to apply section 452.410.1 or section 452.400.2 until the end of the case, we find that the Southern District approach is less desirable than the Western District approach. For this reason, we agree with the Western District that if the original dissolution judgment characterizes a physical custody award as joint physical custody, then an attempt to modify the time that either parent has a child under his or her care and supervision is an attempt to modify custody, requiring the application of section 452.410.1. Accordingly, we find the trial court erroneously declared Baker to be the law.
We will now discuss when a trial court's physical custody award is properly characterized as "joint physical custody."
Section 452.375.1(3) defines "joint physical custody" as "an order awarding each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents." Section 452.375.1(3). Consequently, when a court's order awards significant periods of time where the child is under the care and supervision of each of the parents, the award is one of joint physical custody, regardless of what terminology the court used to designate the award. LaRocca, 135 S.W.3d at 525. If a trial court erroneously designates an order awarding significant periods of time where the child is under the care and supervision of each of the parents as an award of sole physical custody with visitation rights to the other parent, the party awarded visitation rights may request an appellate court to modify the dissolution judgment so that it is designated as an award of joint physical custody. See id. at 525-26. A court's order awarding one parent custody of the child 57 percent of the time and the other parent custody of the child 43 percent of the time is an award of joint physical custody. See id. at 526.
We note that effective January 1, 2005, Rule 78.07(c) requires that "[i]n all cases, allegations of error relating to the form or language of the judgment . . . must be raised in a motion to amend the judgment in order to be preserved for appellate review." Rule 78.07(c). This rule was not in effect at the time when either the original modification judgment or the amended modification judgment was entered.
Applying the above law to the case at bar, the original dissolution judgment stated that the parties had joint physical custody of Child. To avoid any confusion on remand, we find, sue sponte, that this was the correct characterization of physical custody because the original dissolution judgment awarded significant periods of time where Child is under the care and supervision of each of the parents. To be specific, Mother was awarded custody of Child approximately 55 percent of the time and Father was awarded custody of Child approximately 45 percent of the time.
Because the original dissolution judgment is correctly denominated as joint physical custody, Mother's attempt to modify the time that she has Child under her care and supervision is an attempt to modify custody requiring the application of section 452.410.1. Accordingly, we find the trial court erred by applying section 452.400.2 in its determination of whether modification of the prior custody arrangement is appropriate.
Thus, we find the trial court erred in ordering a decrease in the amount of time Father is awarded physical custody of Child because the court erroneously declared and applied the law. Because Mother was the prevailing party as a result of the use of an improper standard of law, we are precluded from using the evidence and inferences favorable to Mother to determine whether the result reached by the trial court would be the same if the proper standard was used. See Ryan v. Ryan, 652 S.W.2d 313, 317 (Mo.App.E.D. 1983). Therefore, we reverse and remand with instructions to the trial court to apply section 452.410.1 and for further proceedings consistent with this opinion. See id. However, before we remand this case, because of the conflict among the appellate court districts and the general importance of this issue, we transfer the matter for further determination by the Missouri Supreme Court. Sub-point granted.
In Father's second sub-point on appeal and third sub-point on appeal, he argues that if we find that Baker correctly states the law, the trial court incorrectly applied Baker to the instant case.
As discussed above, we have determined that Baker incorrectly states the law. Thus, we need not consider the merits of either Father's second sub-point on appeal or Father's third sub-point on appeal. Sub-points denied.
In his second point on appeal, Father asserts the trial court erred in ordering an increase in the amount of child support he is obligated to pay Mother.
We will affirm a trial court's judgment modifying child support unless it is unsupported by substantial evidence, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Hern v. Hern, 173 S.W.3d 653, 655 (Mo.App.E.D. 2005). We view the evidence in the light most favorable to the trial court's judgment. Id. We defer to the ability of the trial court to determine the credibility of the witnesses. Id.
In his first sub-point to Point II on appeal, Father asserts the trial court erred in ordering an increase in the amount of child support he is obligated to pay Mother because the trial court did not properly calculate Mother's Form 14 monthly gross income. Father claims the trial court improperly calculated Mother's Form 14 monthly gross income because the court failed to include Mother's rate of pay of $17 per hour, her overtime compensation, or her bonuses in its calculation. The trial court calculated Mother's Form 14 monthly gross income to be $2,773.
We note that the trial court's judgment found that Mother's "average base income including bonuses and overtime is $2773.00 per month" (emphasis added). However, because other findings by the trial court and Father and Mother's briefs indicate that the trial court did not include bonuses and overtime as part of the $2,773 calculation, for purposes of this appeal we will assume that the $2,773 calculation does not include bonuses and overtime.
We will first determine whether the trial court erred by failing to include Mother's rate of pay of $17 per hour in its calculation of Mother's Form 14 monthly gross income. The trial court calculated Mother's Form 14 monthly gross income to be $2,773 "based upon a rate of $16 per hour for 40 hours a week."
In this case, the evidence reveals that Mother works for Gateway as a recruiter and a phlebotomist. Mother testified that she gets paid $16 for her work as a recruiter, and $17 per hour for her work as a phlebotomist. Mother stated that her monthly gross income is $2,773. Mother also stated her phlebotomist pay is "only about 14 hours to 20 hours per month, and that is to make up time of lost time through the week [sic]. It's not overtime pay. It's not additional pay. That is lost time that I had to make up." This testimony reveals that Mother's phlebotomist pay does not constitute pay in addition to her monthly gross income of $2,773.
Because the above evidence is sufficient to support the trial court's calculation that Mother's Form 14 monthly gross income is $2,773, the trial court did not err in failing to explicitly include Mother's rate of pay of $17 per hour in its calculation of Mother's Form 14 monthly gross income.
We will now determine whether the trial court erred by failing to include Mother's overtime compensation in its calculation of Mother's Form 14 monthly gross income. The trial court found that Mother's overtime compensation should not be included within Mother's Form 14 monthly gross income because her overtime compensation was sporadic.
The trial court has discretion whether to include overtime compensation within a parent's Form 14 monthly gross income.Krost v. Krost, 133 S.W.3d 117, 120 (Mo.App.E.D. 2004). In making this determination, the trial court must consider all relevant factors, including the realistic expectation that the parent will receive overtime compensation in the future. See McGowan v. McGowan, 43 S.W.3d 857, 862-63 (Mo.App.E.D. 2001).
In this case, Mother testified that Gateway only offers overtime compensation to its employees when the company is doing well financially. She stated that because Gateway does not always offer her the opportunity for overtime compensation, she does not consistently receive it. Mother's 2004 check stubs also reveal that Mother does not consistently receive overtime compensation. This evidence supports the trial court's finding that Mother's overtime compensation was sporadic. Thus, there is not a realistic expectation that Mother will receive overtime compensation consistently in the future. Therefore, the trial court did not abuse its discretion by failing to include Mother's overtime compensation in its calculation of Mother's Form 14 monthly gross income.
We will now determine whether the trial court erred by failing to include Mother's bonus pay in its calculation of Mother's Form 14 monthly gross income. The court found that "bonus time was used by [Mother] to help defray the cost of the private parochial school which the Court finds she will not continue since the Court is not inclined to order any portion of the private school included in the Form 14 child support calculation."
The trial court has discretion whether to include bonus pay within a parent's Form 14 monthly gross income. Bridgeman v. Bridgeman, 63 S.W.3d 686, 690 (Mo.App.E.D. 2002). In making this determination, the trial court must consider all relevant factors, including the realistic expectation that the parent will receive bonus pay in the future. See McGowan, 43 S.W.3d at 862-63.
In this case, Mother testified that she received bonus pay when she would voluntarily draw blood samples at Gateway. She also testified that she is not guaranteed that bonus pay and was only voluntarily working to receive bonus pay at the time of the hearing for the sole purpose of paying for Child's private school. Additionally, Mother stated that she would not continue to voluntarily work to receive bonus pay if she takes Child out of private school, which she would do if a portion of private school costs are not paid through child support.
There is sufficient evidence in the record to conclude that there is not a realistic expectation that Mother will receive bonuses in the future. Thus, the trial court did not abuse its discretion by failing to include Mother's bonus pay in its calculation of Mother's Form 14 monthly gross income.
Because the trial court did not err by failing to include Mother's rate of pay of $17 per hour, her overtime compensation, or her bonuses in its calculation of Mother's Form 14 monthly gross income, the court's calculation of Mother's Form 14 monthly gross income was not improper. Sub-point denied.
In his second sub-point to Point II on appeal, Father asserts the trial court erred in ordering an increase in the amount of child support he is obligated to pay Mother because the court did not grant him an appropriate adjustment in child support payments for his periods of overnight custody. Father asserts that because the trial court used the wrong statute to determine whether modification of custody is appropriate in this case, we should reverse and remand this issue to the trial court for further proceedings consistent with Father's first point on appeal. We agree.
The trial court must grant the parent paying child support a 10 percent adjustment in support payments when that parent is awarded between 92 and 109 days of overnight custody a year.Krost, 133 S.W.3d at 121. If the parent paying child support is awarded more than 109 days of overnight custody a year, the trial court may grant the parent more than a 10 percent adjustment for child support, but is not obligated to do so. Id.
In this case, it is undisputed that the trial court, after applying section 452.400.2, granted Father more than 109 days of overnight custody a year. It is also undisputed that the trial court granted Father a 10 percent adjustment in child support payments. The trial court was not obligated to grant Father more than this 10 percent adjustment. Moreover, Father has failed to show the trial court erred in failing to grant Father more than a 10 percent child support adjustment.
Nonetheless, as discussed above, we reverse and remand Father's first point on appeal to the trial court with instructions to use what we believe is the proper statute in determining whether modification of physical custody is appropriate in this case. If on remand the trial court modifies the plan of joint physical custody in such a way that it is appropriate for the court to change Father's child support adjustment or the amount of his total child support payment, the trial court may, of course, revisit these issues in accordance with such changes. See Alt v. Alt, 896 S.W.2d 519, 523 (Mo.App.W.D. 1995). In doing so, the court may take into account any circumstances that have arisen during the time this case has been on appeal. See id. Thus, we would reverse and remand to the trial court to make findings consistent with this opinion. However, because this issue is dependent upon our assessment of Father's allegation of error in his first point on appeal, we transfer this matter for further determination by the Missouri Supreme Court. Sub-point granted.
In his third point on appeal, Father contends the trial court erred in awarding Mother $1,000 in attorneys' fees.
We review a trial court's award of attorneys' fees for abuse of discretion. In re Marriage of Maninger, 106 S.W.3d 4, 13 (Mo.App.E.D. 2003).
In this case, both parties agree that Father's Form 14 monthly gross income at the time of the modification hearing was $5,552. As discussed above under Father's second point on appeal, the trial court properly determined that Mother's Form 14 monthly gross income at the time of the modification hearing was $2,773. Because Father has a substantially higher income than Mother, Father has a greater ability to pay attorneys' fees. See id. Furthermore, Father's greater ability to pay attorneys' fees is sufficient to support an award of attorneys' fees to Mother.See id. Thus, the trial court did not abuse its discretion in awarding Mother $1,000 in attorneys' fees. Point denied.
Based on the foregoing, with respect to Father's first point on appeal, we reverse and remand this case with instructions to the trial court to apply section 452.410.1. However, before we remand this case, because of the conflict among the appellate court districts and the general importance of this issue, we transfer the matter for further determination by the Missouri Supreme Court. We affirm the portion of the trial court's judgment calculating Mother's Form 14 monthly gross income. Regarding Father's claim that the court did not grant him an appropriate adjustment in child support payments for his periods of overnight custody, we would also reverse and remand to the trial court to make findings consistent with Father's first point on appeal. Because this issue is dependent upon our assessment of Father's allegation of error under his first point on appeal, we also transfer this matter for further determination by the Missouri Supreme Court. In addition, we affirm the portion of the trial court's judgment awarding Mother $1,000 in attorneys' fees.
George W. Draper III, J. and Kenneth M. Romines, J., concur.