In the Missouri Court of Appeals
Western District
MARK RANDALL EDWARDS, )
Respondent, )
v. ) WD78472
)
DEBBIE L. EDWARDS, ) FILED: November 24, 2015
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY
THE HONORABLE ROBERT D. SCHOLLMEYER, JUDGE
BEFORE DIVISION TWO: MARK D. PFEIFFER, PRESIDING JUDGE,
LISA WHITE HARDWICK AND JAMES E. WELSH, JUDGES
Debbie Edwards (Mother) appeals from the circuit court's judgment
dissolving her marriage to Mark Edwards (Father). Mother challenges the child
support and maintenance awards and the court's denial of her request for
attorney's fees. For reasons explained herein, we reverse the child support award
and remand for the circuit court to recalculate the award. The judgment is affirmed
in all other respects.
FACTUAL AND PROCEDURAL HISTORY
Mother and Father were married in September 1994 and separated in
December 2013, after Father filed a petition for dissolution of marriage. During
their marriage, they had two sons: Cameron, who was 19 years old at the time of
trial, and Conner, who was 14 years old.
In his dissolution petition, Father requested, among other things, joint legal
and physical custody of the children, with Conner residing with Father and Mother
having custody of him every other week from Thursday to Monday and, on weeks
where Mother does not have weekend custody, Thursday nights. Father asked
that the court award a reasonable amount of child support. Mother filed a counter-
petition in which she also sought joint legal and physical custody. She requested,
however, that Conner reside with her and that Father have custody every other
week from Thursday to Monday and, on weeks where Father does not have
weekend custody, Thursday nights.1 Additionally, Mother asked for an award of
child support, maintenance, and attorney's fees.
While the case was pending, the court entered a temporary order regarding
custody of Conner, child support for both children, and maintenance in May 2014.
The order provided that the parties were to exercise joint physical custody of
Conner. Conner was to reside with Mother on Mondays and Tuesdays of each
week and Father on Wednesdays and Thursdays of each week. The parties were
to alternate weekends. The court ordered Father to pay Mother $184 in temporary
child support each month. Lastly, the court ordered Father to pay Mother $500 in
temporary maintenance.
1
Because Cameron was going to be attending college, neither party included him in their proposed
residential and visitation schedules.
2
Trial was held on the parties' petitions in October 2014. The evidence at
trial was that Mother, who does not have a high school diploma, had worked
various jobs during the marriage. Before she had children, Mother was employed
full time at a hospital. After having children, she ran an in-home daycare. For the
past ten years, Mother has been self-employed cleaning offices and private homes
on a part-time basis. Mother's average monthly income gross income from her
part-time cleaning business is $2000. Her monthly expenses, not including
expenses related to Conner and Cameron, are $2388.
Mother lives in a rental house near Father's residence. Cameron lives with
her while he is attending college. In addition to Cameron, Mother's adult daughter
from a previous relationship, Cara, lives with her. Cara, who is 23 years old, is a
full-time student and does not contribute to the rent or other living expenses,
except for the monthly satellite television bill. Mother allows Cara access to
Mother's bank account and allows her to use the account to pay for gas or other
expenses she may have.
Father is employed full time by the Jefferson City Police Department. His
gross monthly income is $5066. His monthly expenses, not including expenses
related to the children, are $1948. Father pays for the cost of the children's health
insurance, which is $145 per month. Additionally, Father pays for every expense
of Conner's that he is made aware of, makes Cameron's car payments, pays for
Cameron's car insurance and cell phone, and gives Cameron cash.
3
The evidence at trial indicated that the parties had not followed the court's
temporary custody schedule regarding Conner. In fact, between May and October
2014, Conner had spent only two overnights at Mother's house. Conner did,
however, spend most weekday afternoons after school with Mother. Conner was
diagnosed with argumentative defiance disorder and depression and has a history
of anger management issues. According to Father, Conner chose not to stay with
Mother during her designated parenting time.
The court subsequently entered a judgment, which it later amended,
dissolving the parties' marriage and dividing their property pursuant to their
agreement. The court awarded the parties joint legal and physical custody of
Cameron and Conner. The court rejected Mother's and Father's proposed
parenting plans regarding Conner and entered its own parenting plan, which
provided for Conner to reside with Mother every week from Wednesday at 3:00
p.m. until Friday at 3:00 p.m. and every other weekend. Conner is to reside with
Father at all other times.
As for child support for Cameron and Conner, the court rejected the parties'
proposed Form 14s and calculated child support using a dual Form 14 computation.
The court rebutted the presumed correct child support amount of $172 per month
and ordered Father to pay Mother $184 per month.
On the issue of maintenance, the court found that, pursuant to the parties'
property agreement, Mother would receive her vehicle, $70,000 of Father's 457
account, and $1000 per month of Father's pension when Father retires. The court
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further found that Mother would be able to support herself through appropriate
employment. The court noted that Mother allows her adult daughter to live with
her and that her daughter does not contribute toward rent or most of the utilities.
The court concluded that, "Clearly, [Mother] is able to financially support herself if
she is also able to help support her adult child." Despite finding that Mother is able
to support herself, the court found that Mother's current self-employment does not
offer the stability and benefits that regular employment would. Because Mother
would no longer be covered under Father's health insurance, the court awarded
Mother $350 per month in temporary, non-modifiable maintenance for 19 months
to allow her time to find "appropriate employment."
Lastly, the court denied Mother's request for attorney's fees, finding that
neither party's conduct during the marriage or the pendency of the case increased
the other's attorney's fees and that the parties have the financial resources to pay
their own fees. Mother appeals.
STANDARD OF REVIEW
Appellate review of a dissolution judgment is under the standard of Murphy
v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Jenkins v. Jenkins, 368 S.W.3d
363, 366 (Mo. App. 2012). We will affirm the circuit court's judgment unless
there is no substantial evidence to support it, it is against the weight of the
evidence, or it erroneously declares or applies the law. Id. at 366-67. The party
challenging the dissolution judgment has the burden of demonstrating error. Shaw
v. Shaw, 413 S.W.3d 332, 334 (Mo. App. 2013). We view the evidence and any
5
reasonable inferences therefrom in the light most favorable to the court's decision
and disregard all contrary evidence and inferences. Id. We recognize that the
circuit court was "'free to believe or disbelieve all, part, or none of the testimony of
any witness.'" Id. (citation omitted).
ANALYSIS
Child Support
In Point I, Mother contends the circuit court erred in determining child
support because it failed to properly adhere to the guidelines set forth in Rule
88.01. Specifically, Mother argues that the court incorrectly calculated the child
support award by using the procedure for a split-custody arrangement. We agree
with Mother that the court's child support calculation is erroneous and requires
reversal.
To determine child support, Section 452.340, RSMo,2 and Rule 88.01
mandate the use of the Form 14 guidelines. Woolridge v. Woolridge, 915 S.W.2d
372, 378 (Mo. App. 1996). The circuit court must first calculate the presumed
correct child support amount pursuant to Form 14, either by accepting one of the
parties' proposed calculations, or by rejecting the parties proposed Form 14s and
preparing its own. Roberts v. Roberts, 391 S.W.3d 921, 922 (Mo. App. 2013).
The court then must consider whether to rebut the presumed correct child support
amount as unjust or inappropriate after considering all relevant circumstances. Id.
at 922-23.
2
All statutory references are to the Revised Statutes of Missouri 2000, as updated by the 2013
Cumulative Supplement.
6
In its judgment, the court stated that it was rejecting the parties' proposed
Form 14s and preparing its own Form 14s "based upon a split custody in that
Cameron resides predominantly with [Mother] and Conner resides predominantly
with [Father], thus the presumed correct child support amount payable to [Mother]
is $172 per month." The court's Form 14s indicate that the court arrived at $172
by subtracting $250, the presumed correct child support amount that Mother
would owe for Conner, from $422, the presumed correct child support amount that
Father would owe for Cameron. The court then rebutted the $172, finding that,
based on "the situation of both parties and the minor children at the present time,"
it would be reasonable for Father to pay Mother $184 per month.
This method of calculating dual Form 14s for each parent and subtracting
the smaller amount from the larger amount is used in split-custody arrangements
and is discussed in Comment D to Line 12 in the Directions, Comments for Use and
Examples for Completion of Form No. 14, which provides:
Split custody refers to the situation in which one or more, but
not all, of the children primarily resides with each of the parents. In
those instances, a separate Form No. 14 is completed for the number
of children primarily residing in the custody of each parent, using the
adjusted monthly gross income (line 3) for both parents but
disregarding the children primarily residing in the other parent's
custody.
....
After completion of each parent's Form No. 14, subtract the
smaller amount from the greater, and the parent with the larger of the
two obligations shall pay the difference between the two obligations.
7
"Missouri courts have consistently held that split-custody situations are the
only times that the dual Form 14 calculations are appropriate." Roberts, 391
S.W.3d at 923. This procedure is not to be used to calculate child support where
the court orders the parties to share joint physical custody of the children. Id. at
923-24. See also Derks v. Surface, 189 S.W.3d 692, 696 (Mo. App. 2006), and
Stuckmeyer v. Stuckmeyer, 117 S.W.3d 687, 691 (Mo. App. 2003).
Here, the court awarded the parties joint physical custody of Cameron and
Conner, made no parenting time schedule for Cameron, and set out a parenting
schedule for Conner that gives Mother and Father equal parenting time with him.
The court acknowledged in its judgment that the parties had not followed the equal
parenting time schedule in the temporary custody order but stated, "Regardless,
this Court believes that it is up to the parents to enforce a custody schedule that
provides that Conner have frequent, meaningful contact with both parents." Thus,
the court found that its parenting plan, which provides "an equal custody schedule
for Conner," is in Conner's best interest.
Because the court awarded Mother and Father joint physical custody of both
children and ordered a parenting plan that provided for equal parenting time with
Conner, the court erred in calculating child support using the method applicable
only to split-custody arrangements. See Roberts, 391 S.W.3d at 924. The child
support award is reversed, and the cause is remanded to the circuit court to
recalculate the presumed correct child support amount consistently with the joint
physical custody award that the court ordered. After determining whether to rebut
8
the presumed correct child support amount as unjust or inappropriate, the court
must then consider all factors set forth in Section 452.340 and enter its child
support award accordingly. Id. This court is fully aware that, after recalculating
the Form 14 pursuant to the instructions, the circuit court is free to reject that and
enter an award it considers just. However, a properly calculated Form 14 is a
necessary prerequisite to that decision. Point I is granted.
Maintenance
In Point II, Mother contends the circuit court erred in placing a termination
date on the maintenance award. She argues that, instead of limiting the
maintenance award to only 19 months, the court should have made the award
indefinite, as there was no evidence in the record of an impending change of
circumstances for either party.
The circuit court has broad discretion in determining the duration of
maintenance, and we review that decision only for an abuse of discretion. In re
Marriage of McMillian, 399 S.W.3d 838, 840 (Mo. App. 2013). "There is a judicial
preference for awards of maintenance of unlimited duration." McIntosh v.
McIntosh, 41 S.W.3d 60, 72 (Mo. App. 2001). The circuit court "'should not
prospectively terminate maintenance if no evidence is presented or no reasonable
expectation exists that the circumstances of the parties will be substantially
different in the future.'" McMillian, 399 S.W.3d at 841 (quoting Underwood v.
Underwood, 163 S.W.3d 490, 492 (Mo. App. 2005)). Consequently, in cases
such as Keller v. Keller, 18 S.W.3d 589, 595-96 (Mo. App. 2000), relied upon by
9
Mother, we reversed the court's limitation on the duration of the maintenance
award, as there was no substantial evidence to support the court's finding that the
appellant would be totally self-supporting after 18 months of "additional training."
The distinction between Keller and this case, however, is that, when the
court entered its award in Keller, the party receiving maintenance was not
employed and was not capable of supporting herself without the maintenance
payment. Id. at 594. Here, the court's findings indicate that, at the time the
judgment was entered, Mother was, in fact, able to support herself through her
employment and the property awarded to her. Indeed, Mother was also able to
support her adult daughter. Mother's bank records indicated that she had money
left over at the end of each month, and she admitted that she cashed some of her
paychecks instead of depositing them into her checking account. Mother did not
meet Section 452.335.1's threshold requirements for an award of maintenance.3
Nevertheless, the court awarded her temporary maintenance to allow her time to
find employment so that she could obtain health insurance, as she would no longer
be eligible for coverage under Father's plan. Given that Mother was working only
part time, it was not unreasonable for the court to allow her time either to find
different employment with health insurance benefits or to increase her cleaning
clientele so that she would be able to purchase her own health insurance.4 "[I]t is
3
Father acknowledges that he did not appeal the court's decision to award maintenance to Mother,
and he states that he has made all maintenance payments as ordered.
4
Although Mother testified that she has Scleroderma and Raynaud's Syndrome, she admitted that
neither condition interferes with her ability to perform her current cleaning jobs. There was no
10
not unreasonable for a trial court, having found that a party is capable of earning
more than they are earning at the time of the dissolution, to allow a period of time
with some financial cushion while that party moves toward their earning potential."
McIntosh, 41 S.W.3d at 72. The circuit court did not abuse its discretion in
limiting the award of maintenance to 19 months. Point II is denied.
Attorney's Fees
In Point III, Mother contends the circuit court erred in denying her request for
attorney's fees. She argues that the income disparity between her and Father
warrants an award of attorney's fees to her. She notes that Father earns $5066
per month, while she earns only approximately $2000 per month.
"Parties to a domestic relations case are generally responsible for paying
their own attorney's fees." Goins v. Goins, 406 S.W.3d 886, 891 (Mo. banc
2013). Section 452.355.1, however, authorizes the circuit court to award
attorney's fees "after considering all relevant factors including the financial
resources of both parties, the merits of the case and the actions of the parties
during the pendency of the action." The court has broad discretion to decide
whether to award attorney's fees, and we will not disturb the court's order absent
an abuse of discretion. Reiter v. Reiter, 372 S.W.3d 899, 905 (Mo. App. 2012).
"The complaining party has the burden to show an abuse of discretion by
demonstrating that the award is clearly against the logic of the circumstances and
evidence that these conditions would affect her ability to perform additional cleaning jobs or to
obtain employment that would enable her to get health insurance.
11
so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of
careful deliberation on the matter." Id.
In this case, the court specifically stated that it considered the parties'
financial resources in denying Mother's request for attorney's fees. The court
determined that Mother was able to support herself through her employment and
the property awarded to her, which included $70,000 from Father's 457 account
that she would receive as soon as the division of benefits order was signed and
submitted to Father's retirement administrator. The court also awarded Mother
temporary maintenance of $350 per month for 19 months. Under these
circumstances, the income disparity between Mother and Father was not a
sufficient reason to award her attorney's fees. "'[T]he fact that one spouse's
income is greater than the other's does not compel an award of attorney's fees.'"
Id. at 906 (citation omitted). The circuit court did not abuse its discretion in
denying Mother's request for attorney's fees. Point III is denied.
CONCLUSION
The child support award is reversed and remanded. The judgment is
affirmed in all other respects.
____________________________________
LISA WHITE HARDWICK, JUDGE
ALL CONCUR.
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