In re the Marriage of Matthew Witt and Elizabeth Witt MATTHEW WITT, Petitioner-Respondent v. ELIZABETH WITT

Missouri Court of Appeals
Southern District
Division Two

In re the Marriage of Matthew Witt )
and Elizabeth Witt )
)
MATTHEW WITT, )
)
Petitioner-Respondent, )
)
vs. ) No. SD34020
)
ELIZABETH WITT, ) Filed April 29, 2016
)
Respondent-Appellant. )

APPEAL FROM THE CIRCUIT COURT OF BARRY COUNTY

Honorable Robert J. Foulke, Associate Circuit Judge

REVERSED AND REMANDED IN PART WITH INSTRUCTIONS; AFFIRMED IN PART

Matthew Witt (Father) and Elizabeth Witt (Mother) filed motions to modify custody and

child support for their three children. The trial court awarded the parties joint legal custody and

joint physical custody of the three children, designated Father’s address as L.J.W. and Z.F.W.’s

address for mailing and educational purposes, designated Mother’s address as P.F.W.’s address

for mailing and educational purposes, and determined that neither party should pay child

support. 1 Mother appeals the trial court’s judgment, raising four points: (1) “[t]he trial court

erred in ordering neither party to pay child support because the court did not attach and

1
The term “residential parent” is hereinafter used in this opinion solely to refer to the parent whose address has been
designated by the trial court as the referenced child’s or children’s address for mailing and educational purposes.

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incorporate a correct Form 14 to its written judgment and did not find for the record the

presumed amount of child support”; (2) “[t]he trial court erred in rebutting as being unjust and

inappropriate the presumed amount of child support as calculated by the parties”; (3) “[t]he trial

court erred in denying appellant's Motion for Contempt because [Mother] established a prima

facie case of contempt and [Father] did not prove to the court that his noncompliance was not an

act of contumacy”; and (4) “[t]he trial court erred when it admitted into evidence Exhibits 12,

12A, 12B, and 12C because these documents did not qualify for the business records exception

to the hearsay rule[.]” Finding merit in Mother’s first point and, therefore, her second point

moot, we reverse the trial court’s judgment as to child support and remand the cause with

directions. Finding no merit in Mother’s third and fourth points, however, we affirm the

judgment in all other respects.

Standard of Review

We review this court-tried case under the standard set forth in Murphy v. Carron, 536

S.W.2d 30, 32 (Mo. banc 1976). Hightower v. Myers, 304 S.W.3d 727, 731 (Mo. banc 2010).

We will affirm the trial court’s judgment of modification unless there is no substantial evidence

to support the judgment, the judgment is against the weight of the evidence, or the trial court

erroneously declares or applies the law. Id. We view the evidence and all inferences therefrom

in the light most favorable to the judgment. Id. at 732.

Factual and Procedural Background

Father and Mother have three children together: L.J.W., born in January 1998; Z.F.W.,

born in May 2003; and P.F.W., born in April 2007. The parties’ marriage was dissolved 2 in

2011, and their initial custody arrangement was by agreement. Under that arrangement, Father

2
Both Mother and Father have remarried. We refer to Mother’s current husband as “Stepfather” and Father’s
current wife as “Stepmother.”

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was designated the residential parent of L.J.W. and Mother was designated the residential parent

of Z.F.W. and P.F.W. Neither party paid child support, but Father was required to pay medical

expenses for all of the children.

In January of 2013, Mother moved to modify child support, and Father responded with a

motion to modify the address for mailing and educational purposes of Z.F.W. and P.F.W. from

Mother’s address to his address. Mother later filed a motion for contempt, alleging that Father

had failed to pay $1,091.79 in medical expenses as required by the initial parenting plan and

dissolution judgment.

At a hearing on their motions, Father testified that Z.F.W. was examined by Dr.

Kellenberger concerning a specific medical diagnosis. Dr. Kellenberger’s report was admitted

without objection as Exhibit 12. A report from a Dr. Bochtler, contained within Dr.

Kellenberger’s already-admitted report, Exhibit 12, was also admitted separately later in the trial

as Exhibits 12A, 12B, and 12C, again without objection.

Following Dr. Kellenberger’s evaluation of Z.F.W., Mother requested that Z.F.W. have a

second evaluation by Dr. Hopkins. Father told Mother he “didn’t believe that [Z.F.W.] needed

another evaluation this soon after the last one and that she was welcome to have it done if she

wanted to but [Father] was not going to pay for it because [Father] didn’t feel it was necessary.”

Mother, nevertheless, pursued Dr. Hopkins’ evaluation, and Father refused to pay the $600 fee

resulting from that appointment.

After the dissolution, Mother had once returned a check for medical expenses in the

amount of $26.89 to Father because Father had endorsed the check to “Liz Brown” instead of

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“Witt.” 3 Mother had previously accepted checks endorsed to “Liz Brown,” and Father refused

to rewrite the check to “Elizabeth Witt.”

Mother testified that although her motion for contempt alleged that Father owed

$1,091.79 in medical expenses, she had received some payments after it was filed. She believed

that, at a minimum, she was still owed $626.89, which consisted of the $600 for Dr. Hopkin’s

evaluation and $26.89 for the check made payable to “Liz Brown.”

Father submitted two Form 14s for the trial court’s consideration. Both were premised

upon Father having a monthly income of $3,540, Mother having a monthly income of $1,326,

and Father paying $150 monthly for health insurance. Exhibit 21 calculated a presumed child

support amount of $427 for Mother to pay to Father on behalf of all three children. Exhibit 22

was submitted in the alternative and calculated that, if Mother remained the residential parent of

P.F.W., Father’s presumed child support payable to Mother was $197. Mother submitted her

Form 14s as Exhibit A for the trial court’s consideration premised upon Father having a monthly

income of $3,920, Mother having a monthly income of $800, and Father paying $141 monthly

for health insurance. Mother’s Form 14s calculated Father’s presumed child support for two

children (Z.F.W. and P.F.W.) to be $961 with an offset of $91 (presumed support of Mother for

L.J.W.), leaving Father paying Mother presumed net child support of $870.

The trial court found that “there has been a significant change in circumstances since the

date of the parties’ dissolution of marriage that warrants a change in the previous judgment

regarding custody” and, although the “parties have had very little communication regarding the

welfare of the children[,]” “[j]oint [p]hysical and [j]oint [l]egal [c]ustody is still in the best

interests of the children.” The trial court considered all of the required statutory factors and

3
At the time of the hearing, Mother had never legally changed her last name from Witt, but the transcript reflects
that Mother prefers to be called “Elizabeth Witt Brown.”

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found them all to be neutral save two that weighed in favor of Father becoming Z.F.W.’s

residential parent. Specifically, the trial court found that it was in the best interests of Z.F.W. for

him to reside with Father during the school year because Mother and Stepfather had indicated

“that [Z.F.W.] is having difficulties with his relationship with [P.F.W.] and [they] need time and

distance apart from each other for a healthy relationship between the brothers[,]” and Z.F.W.

continued to have “emotional and behavioral difficulties” and “periods of decompression[.]”

Therefore, the trial court determined that “[L.J.W.] and [Z.F.W.]’s address for mailing and

educational purposes shall be at the home of [Father]. The minor child [P.F.W.]’s address for

mailing and educational purposes shall be at the home of [Mother.]”

Concerning child support, the trial court found that “[t]he presumed correct child support

. . . calculated by each party is rebutted as being unjust or inappropriate” and ordered “neither

party is to pay child support.” The trial court further ordered both parties to furnish health

insurance coverage and to be “jointly and severally liable for all of the reasonable and necessary

medical, hospitalization, prescription drug, optical, dental, and orthodontic expenses or charges

incurred for the minor children that are not covered by any health benefit plan coverage[.]” The

judgment also denied all other pending motions, including Mother’s motion for contempt.

The parties filed a “JOINT MOTION TO RECONSIDER, OR IN THE ALTERNATIVE,

MOTION FOR NEW TRIAL” 4 arguing that the trial court’s determination that neither party pay

support was erroneous because “the Court failed to make a specific finding as to the presumed

amount of support; likewise, the court did not enter its own Form 14 nor did it include specific

factors which would support a deviation.” The motion also alleged that the trial court “denied

Mother’s request for unpaid medical expense reimbursement but failed to include findings on

4
Father stated that although “he does not agree to all averments herein,” he joined in the request “insofar as he is in
agreement that the Judgment should be set aside to permit clarification and incorporation of stipulations between the
parties.”

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this issue, including specific findings as to any just cause why Father should not be held in

Contempt[.]” The parties’ motion was denied, and this appeal followed.

Discussion

For ease of analysis, we address Mother’s points out of order.

Alleged Evidentiary Errors Not Preserved for Appellate Review

Mother’s fourth point relied on states:

The trial court erred when it admitted into evidence Exhibits 12, 12A, 12B, and
12C because these documents did not qualify for the business records exception to
the hearsay rule, in that they were not sponsored by qualified witnesses from the
entities that actually created the documents, and proper foundations were not laid
for them as required by Revised Statutes of Missouri §§490.660-490.690.

We would ordinarily review such a claim for an abuse of discretion, Ford Motor Credit

Co. LLC v. Harris, 386 S.W.3d 864, 866 (Mo.App. 2012), and prejudice to appellant, Saint

Louis University v. Geary, 321 S.W.3d 282, 291 (Mo. banc 2009); however, Mother’s claim is

not preserved for our review.

During Father’s testimony, Father’s counsel offered Exhibit 12, the report of Dr. Judith

Kellenberger “produced by affidavit from Dr. Judith Kellenberger’s office.” When the trial court

asked Mother’s counsel if she had any objection, she responded, “No, subject to cross.” Dr.

Kellenberger’s report contained the records of Dr. Bochtler (that previously had been submitted

to Dr. Kellenberger). Then, during Stepmother’s direct examination, Father’s counsel, referring

to Dr. Bochtler’s records, took out “a sample of just that particular part” and it was labelled

Exhibit 12A. Another portion of Dr. Bochtler’s report contained within Dr. Kellenberger’s

records was labelled Exhibit 12B and referenced during Stepmother’s testimony. However,

neither Exhibit 12A nor Exhibit 12B was offered or admitted during Stepmother’s testimony.

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 Father’s counsel offered Exhibits 12A, 12B and 12C 5 during cross examination of

Mother:

[FATHER’S COUNSEL]. All right. You have here 12A, 12B, and 12C. Would you look
at those and verify that those are your recollection of the event?

[MOTHER]. Okay. Yes.

[FATHER’S COUNSEL]. Those are correct, in your mind?

[MOTHER]. Yes.

[FATHER’S COUNSEL]: We'll offer it, Your Honor.

THE COURT: Any objection?

[MOTHER’S COUNSEL]: I believe they've already been admitted, Your Honor.

THE COURT: Okay.

[MOTHER’S COUNSEL]: These were attached to Dr. Kellenberger's.

[FATHER’S COUNSEL]: We just never have offered those.

THE COURT: No.

[GUARDIAN AD LITEM]: No.

THE COURT: All right.

[GUARDIAN AD LITEM]: No objection.

THE COURT: The Court -- the Court will admit them as additional records.

(AT THIS TIME PETITIONER'S EXHIBITS 12A, 12B, AND 12C WERE
RECEIVED INTO EVIDENCE AND MADE A PART OF THIS RECORD.)

When Exhibits 12, 12A, 12B, and 12C were offered into evidence, Mother made no

timely objection to their admission. Because she failed to do so, her argument on appeal that the

trial court should not have admitted them is not preserved for our review. Callahan v. Cardinal

5
Exhibit 12C was not identified in the record before it was offered into evidence, but as noted in the colloquy
surrounding its admission, Mother represented to the trial court that it was an excerpt from the records included in
Exhibit 12.

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Glennon Hosp., 863 S.W.2d 852, 860 (Mo. banc 1993) (“Since there was no objection to the

testimony of plaintiff's experts, there is no issue of admissibility presented and none is preserved

for appeal.”); Citizens for Ground Water Prot. v. Porter, 275 S.W.3d 329, 344 (Mo.App. 2008)

(“To preserve for appellate review an error regarding the admission of evidence, a timely

objection must be made when the evidence is introduced at trial. If the objection is not made at

the time of the incident giving rise to the objection, the objection may be deemed waived or

abandoned.”).

Moreover, when Exhibit 12 was offered into evidence, Mother affirmatively asserted to

the trial court that she had “no” objection to its admission. Such an assertion when evidence is

introduced affirmatively waives appellate review of its admission. Citizens for Ground Water

Prot., 275 S.W.3d at 344. Because Exhibits 12A, 12B, and 12C are included within Exhibit 12,

Mother’s waiver of appellate review of the admission of Exhibit 12 also means that she cannot

demonstrate any prejudice as a result of the admission of Exhibits 12A, 12B, and 12C. This is so

because “‘[a] complaining party is not entitled to assert prejudice if the challenged evidence is

cumulative to other related admitted evidence.’” Saint Louis University, 321 S.W.3d at 292

(quoting Rinehart v. Shelter Gen. Ins. Co., 261 S.W.3d 583, 590 (Mo.App. 2008)).

Mother’s fourth point is denied.

No Error in Denial of Mother’s Motion for Contempt

Mother’s third point relied on states:

The trial court erred in denying appellant’s Motion for Contempt because
Appellant established a prima facie case of contempt and Respondent did not
prove to the court that his noncompliance was not an act of contumacy, in that the
trial court abused its discretion in not enforcing the terms of the dissolution
judgment as prescribed by Revised Statutes of Missouri§ 452.325 and §476.110.

Mother’s motion for contempt alleged that Father owed $1,091.79 in medical expenses,

but she acknowledged at trial that she had received some payments since filing and now believed

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she was owed only $800. When she was unable to account for how she arrived at the $800

amount, she revised her testimony to claim that she was owed $600 for Dr. Hopkins’ evaluation

and $26.89 for the check that she had returned because it was made payable to “Liz Brown.”

Based on this testimony, Mother asserts that she established a prima facie case of

contempt. In other words, she claims that she met her burden of proof and the burden shifted to

Father to prove that he was not in contempt, which he failed to do. Mother’s argument is flawed

in that it is premised upon a rule that only applies to assess the sufficiency of the evidentiary

basis to support a finding of contempt. 6 Rather, as in Mother’s situation,

[w]hen the burden of proof is placed on a party for a claim that is denied, the trier
of fact has the right to believe or disbelieve that party's uncontradicted or
uncontroverted evidence. If the trier of fact does not believe the evidence of the
party bearing the burden, it properly can find for the other party. Generally, the
party not having the burden of proof on an issue need not offer any evidence
concerning it.

White v. Dir. of Revenue, 321 S.W.3d 298, 305 (Mo. banc 2010) (internal citations and

quotations omitted) (emphasis added).

“When courts discuss the burden of proof, there are two components: the burden of

producing (or going forward with) evidence and the burden of persuasion.” Kinzenbaw v. Dir.

of Revenue, 62 S.W.3d 49, 53 (Mo. banc 2001).

The burden of production is a party’s duty to introduce enough evidence on an
issue to have that issue decided by the fact-finder, rather than decided against the
party in a peremptory ruling such as summary judgment or a directed verdict. . . .
The burden of persuasion is a party’s duty to convince the fact-finder to view the
facts favorably to that party.

Johnson v. Dir. of Revenue, 411 S.W.3d 878, 884 (Mo.App.2013) (internal citations omitted).

6
Mother relies primarily on two cases, Walters v. Walters, 181 S.W.3d 135, 138 (Mo.App. 2005), and State ex rel.
Watkins v. Watkins, 972 S.W.2d 609, 610 (Mo.App. 1998), in which the trial court concluded that the opposing
party was in contempt and the evidentiary basis of that ruling was affirmed on appeal. In that regard, these cases are
procedurally distinguishable from the current situation in which the trial court concluded that Father was not in
contempt.

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 Mother’s argument assumes that she fully satisfied her burden of proof to establish

contempt because she provided some evidence of medical expenses that Father failed to pay.

While this evidence might satisfy Mother’s burden of production and, if believed by the trial

court, could be considered as substantial evidence to support a judgment in favor of Mother,

Mother completely fails to demonstrate how its mere existence necessarily satisfies her burden of

persuasion. It does not.

“The credibility of witnesses and the weight to be given to their testimony is a matter for

the trial court, which is free to believe none, part or all of the testimony of any witness.” In Re

Bell, 481 S.W.3d 855, 859 (Mo.App. 2016). Because the trial court could have entered judgment

in favor of Father because it disbelieved Mother’s evidence, White, 321 S.W.3d at 305, Mother

failed to carry her burden of persuasion. That burden never shifted to Father.

Mother’s third point is denied.

Trial Court Erred in Failing to Determine the Correct Presumed Amount of Child Support

Mother’s first point relied on states:

The trial court erred in ordering neither party to pay child support because the
court did not attach and incorporate a correct Form 14 to its written judgment and
did not find for the record the presumed amount of child support, in that the trial
court did not adhere to the procedure for determining child support mandated by
the Missouri Supreme Court, Revised Statutes of Missouri§ 452.340.8 and Rule
88.01.

Mother and Father each submitted proposed Form 14s with calculations of presumed

child support based on their differing proposals for child custody and their differing views of the

evidence related to their respective incomes and Father’s cost of health insurance. The trial court

stated: “The presumed correct child support calculated pursuant to Section 452.340.8 RSMO,

Supreme Court Rule 88.01, and Form 14, by the Court as calculated by each party is rebutted as

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being unjust or inappropriate, the Court finds and orders neither party is to pay child support.”

(Emphasis added).

When awarding child support in a paternity or a dissolution action, the
trial court is required to follow a two-step procedure. First, the trial court
determines the presumed child support amount in accordance with Form 14,
either by accepting the Form 14 calculation of one of the parties or by doing its
own. Then, the trial court determines whether, considering all relevant factors, the
presumed child support amount is unjust or inappropriate; such a finding rebuts
the presumption that the amount is correct.

J.D.W. v. V.B., 465 S.W.3d 82, 87 (Mo.App. 2015) (internal citations omitted) (emphasis

added); see also Rule 88.01. 7 We review “the trial court’s award and application of the two-step

procedure according to the Murphy v. Carron standard of review, and we review the court’s

decision regarding whether the presumed amount should be rebutted as unjust or inappropriate

for an abuse of discretion.” Thomas v. Moore, 410 S.W.3d 748, 758 (Mo.App. 2013).

The trial court’s judgment did not accept the Form 14 calculations of one of the parties as

being correct. Neither did the trial court perform its own calculation. Determination of the

correct presumed amount “is a mandatory mathematical calculation.” Mehler v. Martin, 440

S.W.3d 529, 539 (Mo.App. 2014). The trial court, therefore, erred in failing to comply with the

first requirement of Rule 88.01.

Father concedes the trial court’s error but contends that there was no prejudice to Mother

in that any error was harmless because the trial court completed the second requirement of Rule

88.01. Father essentially argues that it does not matter what the correct presumed amount of

child support is because the trial court would have found it unjust and inappropriate in any event.

That may be true, but because the trial court did not determine the correct presumed amount, we

cannot effectively review whether, as Mother contends in her second point, the trial court abused

its discretion in determining that unknown amount to be unjust and inappropriate. Thomas, 410

7
Rule references are to Missouri Court Rules (2015).

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S.W.3d at 758. We conclude, therefore, that the trial court erred in its modification of child

support and remand with instructions to the trial court to calculate the correct presumed amount

of child support pursuant to Rule 88.01 and Form 14. After calculating the correct presumed

amount, the trial court may then consider the relevant factors to determine whether that amount

is unjust or inappropriate. Mother’s first point is granted.

Because Mother’s first point is meritorious and we reverse the judgment as to child

support, Mother’s related second point (arguing that the “trial court erred in rebutting as being

unjust and inappropriate the presumed amount of child support”) is moot.

Decision

The trial court’s judgment as to child support is reversed and the cause is remanded to the

trial court to proceed as directed in this opinion. In all other respects, the trial court’s judgment

of modification is affirmed.

GARY W. LYNCH, J., Opinion author

DON E. BURRELL, P.J., concurs

WILLIAM W. FRANCIS, JR., J., concurs

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