Victoria L. Frawley v. Matthew J. Frawley

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
VICTORIA L. FRAWLEY, )
Respondent, )
)
v. ) WD82442
)
MATTHEW J. FRAWLEY, ) FILED: February 11, 2020
Appellant. )
Appeal from the Circuit Court of Platte County
The Honorable W. Ann Hansbrough, Judge
Before Division Three: Alok Ahuja, P.J., and
Anthony Rex Gabbert and Thomas N. Chapman, JJ.
In 2013, the Circuit Court of Platte County entered a judgment dissolving the

marriage of Matthew J. Frawley (“Father”) and Victoria L. Frawley (“Mother”). The

dissolution decree awarded Mother sole legal and sole physical custody of the

couple’s two children, and ordered Father to pay $505 per month in child support.

Father filed a motion to modify the child custody and child support provisions

of the decree. Mother filed a counter-motion seeking to increase Father’s child

support obligation, and a motion to hold Father in contempt for failing to satisfy his

existing support obligations. After a bench trial the circuit court declined to modify

the existing custody arrangement, but altered the visitation provisions of the

original decree. The circuit court increased Father’s child support obligation to

$554 per month. The circuit court held Father in contempt for failing to pay his

share of the children’s previously incurred extracurricular and unreimbursed

medical expenses. It also awarded Mother $10,000 in attorney’s fees, and ordered
Father to pay two-thirds of the fees of the Guardian ad Litem.
 Father appeals, asserting nine Points. We reject eight of his claims. We find,

however, that the circuit court erred in calculating Father’s modified child support

obligation, by failing to give him credit for another child over whom he has primary

physical custody. We accordingly reverse the child support provisions of the

modification judgment, and remand for further proceedings concerning Mother’s

motion to modify child support. In all other respects, the judgment is affirmed.

Background
Father and Mother were married in 2008. They have two children together,

both boys, who are currently 8 and 10 years old.

On March 7, 2013, the Circuit Court of Platte County entered a judgment

dissolving the parties’ marriage. The dissolution decree awarded Mother sole legal

and sole physical custody of the couple’s two sons. The court did so in consideration

of Father’s “psychological problems and [his] refusal to address said problems

properly through therapy and/or medication.” The decree granted Mother discretion

to allow Father “either unsupervised or supervised visitation” “in light of Father’s

psychological difficulties,” at “all reasonable times and places” as Mother

determined.1 The circuit court also ordered Father to pay $505 per month in child

support, and ordered that the parties equally share health care costs for the

children that were not otherwise covered by Mother’s medical insurance, and the

costs of the children’s extracurricular activities.

1 We question the validity of the parenting plan in the circuit court’s original
dissolution judgment, given its vagueness concerning Father’s visitation rights, and the
virtually unfettered discretion given to Mother to grant or withhold visitation. See, e.g.,
Clark v. Clark, 568 S.W.3d 920, 923 (Mo. App. S.D. 2019) (reversing provisions of
dissolution decree which delegated authority to a third party to determine when and how
mother could exercise visitation); Kamler v. Kamler, 213 S.W.3d 185, 188–89 (Mo. App. E.D.
2007) (reversing dissolution decree which granted father supervised visitation only “at such
times approved by the mother,” on the grounds that it was “vague and unenforceable,” and
in violation of § 452.400.1(1), RSMo, which required “an order specifically detailing the
visitation rights of the parent without physical custody rights”). Father did not appeal the
original dissolution decree, however, and the validity of its visitation provisions is not
presently before us.

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 On June 10, 2016, Father filed a motion to modify the child custody and child

support provisions of the original decree. He argued that, in light of a substantial

and continuing change of circumstances since entry of the original decree, the court

should order that Mother and Father exercise joint legal and joint physical custody

of their children. He also argued that, as a result of this changed custody

arrangement, his child support obligation should be modified and reduced.

On July 1, 2016, Mother filed a counter-motion to modify Father’s child

support obligation, arguing that his support obligation should be increased because

Father has “obtained a full-time job and is making significantly more money” than

at the time of the original decree. On the same day, Mother also filed a motion

asking the court to order that Father undergo a psychological and physical

examination.

At Mother’s request, the circuit court appointed a Guardian ad Litem to

represent the interests of the children. The circuit court also ordered that Father

undergo a psychological and parenting examination with Dr. Aileen P. Utley.

On December 29, 2016, Mother filed an amended motion to modify, which

added an allegation that Father had “not fulfilled his child support obligation”

under the existing dissolution decree. Mother filed a motion to hold Father in
contempt based on the same contentions in January 2017.

On August 3, 2017, the court granted Father’s second attorney’s motion to

withdraw, over Father’s objection. From that point forward, Father (who is himself

a lawyer) proceeded pro se. Father has also represented himself in this appeal.

The circuit court heard evidence on the parties’ respective motions to modify

and for contempt on six days between December 2017 and November 2018. The

court entered its final modification judgment on January 3, 2019. The modification

judgment found that:

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 Since the date of the Judgment and Decree for Dissolution of
Marriage, there have been changed circumstances so substantial and
continuing as to make the terms of said Judgment and Decree for
Dissolution of Marriage unreasonable in regard to child support,
custody and Parenting Time. The continuing and substantial changed
circumstances included but are not limited to the following:
a. [Father] has relocated his residence from the Kansas City
Metropolitan Area to Jefferson City, Missouri;
b. [Father] has engaged in a course of behavior which would
endanger the children’s physical health or impair their emotional
development if [Father] engages in unsupervised contact with the
children, to wit:
i. [Father] uses a medication which two qualified
medical professionals have stated causes increased psychosis in
[Father];
ii. [Father] fails to have insight on his own mental
health condition and fails to follow proper treatment protocol; and
iii. [Father] fails to share his prior medical records
with his current treating medical professional resulting in his
symptoms not being properly managed.
c. [Father] has engaged in [a] course of behavior during this
litigation that shows a lack of stability in his mental health including
but not limited to erratic filing of motions during the course of trial,
[and] threats both direct and indirect against this Court, Counsel for
[Mother], and the Guardian ad Litem.
d. [Father] has obtained new employment and as a result
that the application of the Missouri Child Support Guidelines and
criteria set forth in Supreme Court Rule 88.01 would result in a change
of the existing child support in an amount of 20 percent or more.
The modification judgment continued to give Mother sole legal and sole physical

custody of the children. As opposed to the original decree which gave Mother sole

discretion over Father’s visitation rights, however, the modification judgment

specified that Father would have solely supervised visitation, based on the court’s

conclusion that “Unsupervised Parenting Time with [Father] would endanger the

children’s physical health or impair their emotional development.” The parenting
plan incorporated into the modification judgment detailed when and where Father

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was entitled to exercise his parenting time, including weekly visitation and a

holiday schedule.

The circuit court also modified Father’s child support obligation, increasing it

to $554 per month. The court found Father in contempt for failing to pay $6,352.03

as his share of the children’s past extracurricular and uninsured medical expenses,

and ordered him to purge this contempt by paying an additional $200 per month

until the arrearage was satisfied. The circuit court awarded the Guardian ad Litem

$10,959.62 in fees, and ordered Father to pay two-thirds of those fees, or $7,306.34.

The court also awarded Mother $10,000 in attorney’s fees.

Father appeals, raising nine claims of error.2

Standard of Review
On review of a modification judgment, as with any other court-tried case, we

must “affirm the circuit court’s judgment unless it is unsupported by substantial

evidence, it is against the weight of the evidence, or it erroneously declares or

applies the law.” Querry v. Querry, 382 S.W.3d 922, 925–26 (Mo. App. W.D. 2012)

(citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. 1976)). “We accept all reasonable

inferences and evidence favorable to the [modification] order and disregard all

contrary inferences.” Kunce v. Kunce, 459 S.W.3d 443, 446 (Mo. App. W.D. 2015)

(citation and internal quotation marks omitted). We also defer to the circuit court’s

credibility judgments, since “[t]he trial court may believe or disbelieve all, part, or

2 Mother filed a motion to dismiss Father’s appeal based on his failure to
comply with the procedural requirements of Rule 84.04 in his amended appellant’s brief.
Pro se parties are subject to the same procedural rules as represented litigants. Johnson v.
Mo. Dep’t of Corrs., 534 S.W.3d 869, 871 (Mo. App. W.D. 2017). While compliance with Rule
84.04 is mandatory, Franklin v. Ventura, 32 S.W.3d 801, 803 (Mo. App. W.D. 2000),
dismissing an appeal for failing to comply with Rule 84.04 is within this Court’s discretion.
State v. McDaniel, 236 S.W.3d 127, 132 (Mo. App. S.D. 2007). We prefer wherever possible
to dispose of a case on the merits. Morris v. Wallach, 440 S.W.3d 571, 575 n.4 (Mo. App.
E.D. 2014). Although Father’s brief is procedurally deficient in some respects, we are able
to discern his arguments, and will address those arguments on the merits. Mother’s motion
to dismiss is denied.

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none of the testimony of any witnesses.” Id. (citation and internal quotation marks

omitted).

Discussion
I.
Father’s first Point challenges the admission into evidence of exhibits offered

by Mother pertaining to his mental health status and treatment. Specifically,

Father challenges the admission of Exhibits 2 and 113, which are a business records

affidavit, and the associated psychological evaluation report prepared by Dr. Aileen

Utley.3

Dr. Utley was appointed by the court to conduct a psychological and

parenting assessment of Father. Father argues that Exhibits 2 and 113 were

improperly admitted for multiple reasons. Among other things, he argues: that

Mother failed to comply with the business records affidavit statute, § 490.692,

RSMo, because Dr. Utley’s report was not attached to the business records affidavit

Mother served on him; that Dr. Utley’s report does not qualify as a business record

subject to the statute; that Dr. Utley was not qualified to render the opinions

described in the report; and that Dr. Utley’s report constitutes impermissible expert

testimony concerning Father’s credibility.

3 Father also asserts error as to the admission of Exhibits 110 and 112, which
are a compilation of Father’s mental health records from Tri-County Mental Health
Services, Inc., under the care of Dr. Parimal Purohit; and ten pages of handwritten notes by
Dr. Samuelson, who also provided Father with mental health services. At trial, Father
stated he did not “have any objection with the Purowit [sic] records,” and he therefore failed
to preserve any claim of error as to Exhibit 110. At trial, Father’s only objections to Exhibit
112 were that it was not complete, and that it was inadmissible in this modification
proceeding because it concerned Father’s mental health prior to entry of the original
dissolution decree. Father did not preserve in the circuit court his current claim: that
Exhibits 110 and 112 were “not served on Father until the third day of trial.” The
argument concerning belated disclosure of these exhibits was also not included in Father’s
Point Relied On, and is therefore not properly before us for that reason as well. Curl v.
BNSF Ry. Co., 526 S.W.3d 215, 228 n.1 (Mo. App. W.D. 2017).

6
 What is notably absent from Father’s briefing, however, is any developed

argument that he was prejudiced by the admission of Dr. Utley’s report. We do not

reverse circuit court judgments based merely on the existence of an erroneous

ruling; instead, Rule 84.13(b) specifies that “[n]o appellate court shall reverse any

judgment unless it finds that error was committed by the trial court against the

appellant materially affecting the merits of the action.” (Emphasis added.)

Consistent with this general principle, caselaw holds that “the erroneous admission

of evidence in a court-tried case is not grounds for reversal as long as there is

substantial admissible evidence in the record to support the judgment.” C.S. v. Mo.

Dep’t of Soc. Servs., 491 S.W.3d 636, 646 (Mo. App. W.D. 2016) (citation and

internal quotation marks omitted). “Missouri Courts have described this standard

as being ‘practically impossible’ to meet.” S.M.S. v. J.B.S., 588 S.W.3d 473, 509

(Mo. App. E.D. 2019) (citations omitted).4

Father does not argue that the circuit court’s modification judgment is

unsupported by substantial evidence if Dr. Utley’s report is disregarded. Nor could

he plausibly make such an argument. The circuit court may order supervised

visitation where it finds that unsupervised visitation “would endanger the child’s

physical health or impair his or her emotional development.” § 452.400.1, RSMo;
see also, e.g., Baker v. Gonzalez, 315 S.W.3d 427, 433 (Mo. App. S.D. 2010) (holding

that “[t]his ‘endangerment-impairment standard’ applies to an order for supervised

4 See also, e.g., Andrews v. Andrews, 452 S.W.3d 150, 154 (Mo. App. W.D. 2015)
(finding no basis for reversal of circuit court judgment refusing to authorize mother’s
relocation with children, even assuming guardian ad litem’s report was erroneously
admitted, where “the record is replete with sufficient competent evidence to support the
court's judgment”); Rathbun v. CATO Corp., 93 S.W.3d 771, 785 (Mo. App. S.D. 2002)
(“[T]he erroneous admission of evidence is ‘scarcely ever’ grounds for reversal in a court-
tried case,” “except where it appears from the record that the court relied on the evidence
and that no other competent evidence supports the judgment.”); Love v. Love, 72 S.W.3d
167, 173–74 (Mo. App. S.D. 2002) (finding no basis for reversal of child custody provisions of
dissolution decree, even assuming that admission of guardian ad litem’s report was
erroneous, because “the custody provision of the decree is [otherwise] supported by
substantial evidence”).

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visitation.” (citing Buschardt v. Jones, 998 S.W.2d 791, 799 (Mo. App. W.D. 1999)).

Under § 452.400.2, this standard must be satisfied in a modification judgment,

where a modified parenting plan “restrict[s] or limit[s] one party's visitation rights

compared to their visitation rights under the original [judgment].” Turley v. Turley,

5 S.W.3d 162, 165 (Mo. 1999). In this case, although the original dissolution decree

authorized Mother to require Father’s visitation to be supervised, the circuit court

only mandated supervised visitation in the modification judgment. We therefore

assume for purposes of this opinion that the evidence was required to satisfy the

endangerment-impairment standard.

Substantial evidence – separate and apart from Dr. Utley’s report – supports

the circuit court’s finding that unsupervised visitation with Father would endanger

the children’s physical health, or impair their emotional development. In justifying

supervised visitation in this case, the modification judgment refers to the circuit

court’s own observation of Father’s behavior in the course of this litigation. The

judgment finds that Father’s “erratic filing of motions” and direct and indirect

threats against the court, opposing counsel, and the Guardian ad Litem “shows a

lack of stability in his mental health.” The judgment also refers to Father’s “hostile

and disagreeable attitudes” while being questioned during trial.
The modification judgment also cites Father’s erratic, aggressive or troubling

behavior in his interactions with Mother, her fiancé, and the children, including:

sporadic exercise of visitation; refusing to return the children to Mother after his

visitation time had ended; unilaterally enrolling the children in a parochial school,

even though Mother had been awarded sole legal custody; conflict and expressions

of anger towards Mother’s fiancé as he interacted with the children, including “one

occasion [when Father] went into a rage and insisted that the fiancé move when one

of the boys was on his lap”; a “road rage” incident with the children in Father’s car;

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and Father “demeaning [Mother], bullying her and name-calling” during Father and

Mother’s communications.

Finally, the circuit court had substantial evidence concerning Father’s mental

health condition and treatment, separate and apart from Dr. Utley’s report. This

evidence included medical records of Father’s treatment by multiple other mental

health professionals, and Father’s and Mother’s testimony. Father in his testimony

acknowledged that he was taking a medication for Attention Deficit Hyperactivity

Disorder (“ADHD”) which two of his previous physicians had advised him not to

take because it increased his psychotic symptoms (although Father contended that

he was now taking a delayed- rather than immediate-release form of the

medication). Father also admitted in his testimony that his current treating

psychiatrist had not had access to all of the treatment records from his care by an

earlier psychiatrist.

The record here contains substantial other evidence – separate and apart

from Dr. Utley’s report – that supports the trial court’s judgment that unsupervised

visitation would endanger the children’s physical health or emotional development.

Therefore, the admission of Dr. Utley’s report – even if erroneous – would not justify

reversal. Point I is denied.
II.
In his second and third Points, Father argues that the trial court erred in

excluding an audio recording he made of one of the children’s baseball games, and

in refusing to permit Father to make an offer of proof as to the content of the

recording.

On the second day of trial, Father offered the audio recording into evidence.

He testified that he made the recording “specifically because [Mother] at this time

has been saying lie after lie after lie which my testimony already establishes. So I
wanted proof, if she makes any allegations whatsoever, that I did not do anything

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inappropriate.” In offering the audio recording, Father initially testified that he

started the audio recording on his iPhone 5 smartphone when he arrived at the

baseball field; that he stopped the recording when the game ended; that he

transferred the recording (by e-mail) from his smartphone to his desktop computer;

and that he transferred copies of the recording from his computer onto three

compact discs (which he had provided to opposing counsel, the Guardian ad Litem,

and to the court). Father contended that the recording was probative to establish

that Mother had belittled him at the game, had withheld visitation with the

children from him, and had alienated the children’s affections. He also contended

that the recording would disprove Mother’s claims that he had upset the children at

the game, and had acted aggressively toward Mother’s fiancé.

Mother’s counsel objected on the basis that “there’s no way to tell the veracity

of this recording[,] . . . [or] if certain things were removed or added,” and that the

recording was over an hour long and would occupy considerable trial time to play.

Father then repeated that he started the recording when he arrived at the game

and stopped it when he was leaving, and that “[t]his document has not been edited

whatsoever.” When the circuit court informed Father that it did not believe an

adequate foundation had been laid for the recording, he added to his prior testimony
that his smartphone, computer and compact discs were continuously in his custody

and control at all relevant times, and that “[t]he video [sic] recording has not been

altered in any form.” Again, the court expressed concern that “there is an element

of the foundation that [Father] ha[s] not established,” and sustained Mother’s

foundation objection.

After a short recess, the circuit court permitted Father an additional

opportunity to lay a proper foundation for the recording. Father “renew[ed]

everything” he had said previously, and added that “the phone was working in all
aspects prior to the time in which I made the recording,” that the “speakers on the

10
audio” were Mother, Father, and the two minor children, and finally that “the

device was properly working.” Mother’s counsel again objected, and the trial court

sustained the objection and excluded the recording.

On the next day of trial, after hearing several preliminary motions, Father

sought permission from the court to make an offer of proof concerning the contents

of the audio recording. After hearing objections from Mother’s counsel and the

Guardian ad Litem, the circuit court ruled that it would not accept as an offer of

proof anything beyond what Father had previously stated when attempting to

introduce the audio recording into evidence.

We review the trial court’s decision to exclude the audio recording for an

abuse of discretion. NorthStar Educ. Fin., Inc. v. Scroggie, 581 S.W.3d 641, 644

(Mo. App. W.D. 2019). “An evidentiary ruling is an abuse of discretion only if it is

clearly against the logic of the circumstances then before the court and is so

unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of

careful, deliberate consideration.” Menschik v. Heartland Reg’l Med. Ctr., 531

S.W.3d 551, 557 (Mo. App. W.D. 2017) (citation and internal quotation marks

omitted).

In State v. McFadden, 369 S.W.3d 727 (Mo. 2012), the Missouri Supreme
Court explained that, to

[e]stablish[ ] a proper foundation for the admission of a tape-recorded
conversation, one must demonstrate:
(1) the device was capable of recording accurately; (2) the
operator of the recording device was competent to operate it;
(3) the recording is authentic and correct; (4) changes, additions
and deletions have not been made to the recording; (5) the
recording has been preserved in an acceptable manner; (6) the
speakers are identified; and (7) the conversation was voluntary
and without inducement.
Id. at 752 (quoting State v. Fletcher, 948 S.W.2d 436, 439 (Mo. App. W.D. 1997)
(citing State v. Wahby, 775 S.W.2d 147, 153 (Mo. banc 1989))).

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 Although Father’s testimony may have established several of the required

foundational elements for admission of an audio recording, he never offered

testimony as to one critical, and central, issue: whether “the recording [was]

authentic and correct.” Father testified to the manner in which the recording was

made, and to the chain of custody of the recording from his smartphone to the

compact discs on which the recording was now housed. He never testified, however,

that he had listened to the recording, or that the recording in fact fairly and

accurately depicted the events at his children’s baseball game. Father’s failure to

explicitly testify that the recording was accurate is particularly glaring given the

objection from Mother’s counsel as to “the veracity of this recording.” While the

circuit court gave Father multiple opportunities to supply the missing foundational

element, he failed to do so. In these circumstances, we cannot find that the circuit

court abused its discretion in excluding the recording. Given this fundamental,

foundational defect in Father’s proffer, we need not address his separate claim that

the circuit court erred by refusing to permit him to make an offer of proof

concerning the recording’s contents.5

Points II and III are denied.

III.
In his fourth Point, Father argues – on multiple grounds – that the circuit

court erred in finding him to be in contempt of the dissolution decree, for failing to

satisfy his obligation to reimburse Mother for 50% of the children’s extracurricular

and unreimbursed medical expenses.

The modification judgment states:

5 While we need not decide the offer of proof issue, we emphasize that even if
the circuit court is firmly persuaded that proffered evidence is inadmissible, it should
permit an offer of proof except in unusual circumstances “to preserve for the appellate
courts’ review a record of what evidence was offered but rejected.” State ex rel. Praxair, Inc.
v. Mo. Pub. Serv. Comm’n, 344 S.W.3d 178, 185–86 (Mo. 2011).

12
 [Father] is found to be in contempt of the Judgment and Decree of
Dissolution of Marriage for willfully and maliciously failing to
reimburse [Mother] for uninsured medical expenses and
extracurricular expenses in the amount of $6,352.03. [Father] shall
purge himself of this contempt by mailing a payment of $200.00 per
month, post-marked on or before on the 15th day of each month,
beginning January 15, 2019, to [Mother] until the amount in full has
been paid. Failure by [Father] to make said payments to [Mother]
could result in incarceration in the Platte County Detention Center
until such time as he purges himself of this contempt.
Thus, the modification judgment finds that Father failed to satisfy his support

obligations under the original dissolution decree, and threatens him with potential

future incarceration if he fails to purge his contempt in the manner specified. The

judgment does not, however, actually order Father’s incarceration. For this reason,

his appeal of the contempt finding is premature.

Civil contempt orders are appealable only when they become final. In re

Marriage of Crow & Gilmore, 103 S.W.3d 778, 780 (Mo. 2003). “For purposes of

appeal, a civil contempt order is not final until [it is] enforced.” Id. at 781 (citations

and internal quotation marks omitted; collecting cases). Civil contempt orders are

enforced in two ways. If the remedy is by a fine, a civil contempt order is enforced

“when the moving party executes on the fine.” Id. Alternatively, if the remedy for

contempt is imprisonment, the contempt order is enforced at the time a court issues
an order of commitment based on the contempt, or when the contemnor is actually

imprisoned. Id. at 781–82; see also Carothers v. Carothers, 337 S.W.3d 21, 25 (Mo.

2011). In Crow, the Supreme Court held that “the contempt order was not enforced”

and was therefore not appealable, where – as here – “[b]y the words of the

‘judgment,’ incarceration was conditioned on Husband’s failure to purge the

contempt within 60 days. If he failed, the court could impose incarceration by

issuing an order of commitment.” 103 S.W.3d at 782; accord In re Marriage of

Kimball, 583 S.W.3d 450, 454–55 (Mo. App. S.D. 2019); Navarro v. Navarro, 504
S.W.3d 167, 174 (Mo. App. W.D. 2016); Davis v. Davis, 475 S.W.3d 177, 183 (Mo.

13
App. W.D. 2015) (dismissing appeal of contempt ruling where “although the

contempt judgment contained a threat of incarceration, no warrant of commitment

to jail was ever entered”).

At the time this appeal was filed, the circuit court had found Father in

contempt, but had not enforced the contempt order by issuing an order of

commitment or actually incarcerating Father. Father’s arguments in this appeal

concerning the validity of the contempt finding are premature, and we do not

consider them.

IV.
In his fifth Point, Father argues that the circuit court erred in calculating his

modified child support obligation. Specifically, Father argues that, in calculating

the presumed child support amount which Father was then ordered to pay, the

court failed to provide Father with credits (against his gross income): (1) for a child

born to Father and his current wife after the original dissolution decree, whom he

supports, and who primarily resides with him; (2) for health insurance which

Father purchased on behalf of the children; and (3) for overnight visitation Father

has exercised with the children.

At trial, both parties submitted their own Form 14s for the circuit court to

review. The trial court rejected the parties’ Form 14s, and instead prepared its

own. Using its Form 14, the circuit court calculated a presumed child support

amount of $554 per month. The court used this calculated amount to increase

Father’s child support obligation from $505 per month (as specified in the original

dissolution decree) to $554 per month.

“When determining the amount of child support to be paid, the application of

Rule 88.01 and Form 14 is mandatory.” Monnig v. Monnig, 53 S.W.3d 241, 248 (Mo.

App. W.D. 2001) (citation and internal quotation marks omitted). “Courts are
permitted to either adopt a Form 14 of the parties or create their own.” M.L.R. v.

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Jones, 437 S.W.3d 404, 406 (Mo. App. S.D. 2014) (citation omitted). In either case,

the Form 14 “amount must be calculated in conformity with the Supreme Court’s

directions for its use.” Monnig, 53 S.W.3d at 248 (citation omitted). On appeal, we

review “the correctness of the presumed child support amount . . . to ensure that not

only is it done accurately from a mathematical standpoint, but that the various

items and their amounts were properly included in the calculation and supported by

substantial evidence.” Rackers v. Rackers, 500 S.W.3d 328, 334–35 (Mo. App. W.D.

2016) (citation and internal quotation marks omitted).

A.
Father first argues that the circuit court erred by failing to give him a credit

under Line 2(c) of Form 14 for another child he supports. Father argues he is

entitled to a credit for a daughter born to Father and his current wife in July 2018,

after the initial dissolution decree. Mother responds that, because Father is “the

moving party” in this modification proceeding, he is not entitled to a Line 2(c)

adjustment. We agree with Father that the circuit court erred in failing to award

him a credit on Line 2(c) for his new child.

Line 2(c) provides an adjustment to a parent’s monthly gross income, by

reducing the parent’s gross income on account of the parent’s “[m]onthly support

obligation for other children.” “In Line 2(c), Form 14 ‘provides for an adjustment to

the gross income for other children who are not part of the current proceeding for

which a party has primary physical custody.’” M.L.R., 437 S.W.3d at 407 (citations

omitted).

The comment for Line 2(c) explains when a credit for support for other

children is warranted. It states:

(1) In any action to decrease child support, a parent obligated
to pay support shall not be entitled to a line 2(c) credit for children
born to or adopted by the parent obligated to pay support after the
entry of the current order. However, the parent obligated to pay

15
 support will be allowed a line 2(c) credit for children that have
remained primarily residing with the parent obligated to pay support
from prior to the existing order.
(2) In any action to increase child support, a parent obligated
to pay support shall be entitled to a line 2(c) credit for children born to
or adopted by the parent obligated to pay support after the entry of the
current order. However, the use of the credit alone cannot act to
reduce the current support amount in the action in question.
(Emphasis added.)6

Thus, under the official comments to Line 2(c) of Form 14, Father would be

entitled to a credit against his gross monthly income for his support obligation for

children born or adopted after the initial dissolution decree, “[i]n any action to

increase child support.” Such a credit would not be available, however, “[i]n any

action to decrease child support.” Mother argues that, because “Father was a

moving party in this action [he is] not entitled to credit for his after-born child.” We

disagree.

There is no question that Father initiated these proceedings by filing a

motion to modify “Child Custody and Custody Time.” In his motion, Father asked

for a “review of child support,” and a reduction in his support obligation, as a result

of the altered custody arrangement he proposed. In addition to opposing Father’s

motion, Mother filed her own motion to modify child support, seeking an increase in
Father’s child support obligation due to changed circumstances, including Father’s

new employment.

6 The current comment to Line 2(c), which has been in effect since January 1,
2014, is worded differently than the earlier comment. The earlier comment denied a Line
2(c) credit for later-born and later-adopted children to “the moving party,” “in an action to
increase or decrease the support payable under an existing order.” Cases decided under the
earlier comment held that a paying parent who had moved to modify his or her child
support was not entitled to a Line 2(c) credit for later-born children, even if the circuit court
denied the paying parent’s motion to modify, and instead granted the recipient parent’s
cross-motion. See, e.g., Cross v. Cross, 318 S.W.3d 187, 195–96 (Mo. App. W.D. 2010).
Because the current comment does not deny credit to any parent who is a “moving party,”
and allows the credit in “any action to increase child support,” cases decided under the
earlier version of this comment are no longer relevant to the issue we address.

16
 The comment to Line 2(c) does not define the phrase “any action to increase

[or to decrease] child support.” We conclude, however, that the phrase must be read

to refer to each separate motion to modify child support which a circuit court

addresses. The intent of the comment to Line 2(c), and the limitation it places on

the availability of a credit, seems clear: a parent may not seek to reduce their child

support obligation for existing children, by invoking their newly incurred obligation

to support later-born or later-adopted children; on the other hand, a parent’s pre-

existing child support obligation cannot be increased without taking account of any

additional support obligations the parent has since incurred.

It is a common occurrence that parents file cross-motions to modify child

support, with the paying parent seeking a reduction in their support obligation,

while the recipient parent seeks an increase. We do not believe the availability of

the Line 2(c) credit should depend on which motion was filed first. Instead, the

comment to Line 2(c) makes clear that a paying parent cannot rely on a new child to

seek to reduce their pre-existing support obligations, but that the recipient parent

cannot seek an increase in child support while ignoring the fact that the paying

parent now has additional support obligations. Where a parent files a motion to

increase the other parent’s child support obligation – whether as an original motion
or as a counter-motion – the paying parent is entitled to a Line 2(c) credit for

children born or adopted after the original child support order.

Here, the circuit court denied Father’s motion to modify the child custody

arrangement, and his associated motion to reduce his child support accordingly.

Based on Father’s new employment, the circuit court instead granted Mother’s

motion to modify, which sought to increase Father’s support obligation. Because

Mother’s motion was an “action to increase child support,” the circuit court was

required to give Father a Line 2(c) credit for his support obligation to his new child.

17
 Accordingly, we reverse the trial court’s upward modification of Father’s child

support obligation, and remand with instructions that the court recalculate Father’s

presumed child support including a Line 2(c) adjustment for Father’s other child,

and such further proceedings as may be required on Mother’s motion to modify.

B.
Father next argues the trial court erred in its calculation of his presumed

child support amount, because it “refus[ed] to give Father a credit [on Line 6(c) of

Form 14] . . . for the pro rata cost of purchasing health insurance on behalf of the

minor children.”

Line 6(c) provides a credit for “[h]ealth insurance costs for the children who

are subjects of this proceeding.” In Harris v. Parman, 54 S.W.3d 679 (Mo. App. S.D.

2001), the Southern District held that it was error for a circuit court to allow a

parent a credit on Line 6(c) for the cost of health insurance, when the other parent

had been ordered by the court to provide health insurance for the parties’ children.

Id. at 690.

In this case, the original dissolution decree provided that “Mother shall carry

medical insurance for the minor children.” Similarly, the modification judgment

specified that “Mother shall continue to provide medical insurance for the minor

children,” “either through her employer or that of her fiancé.” The circuit court

noted that Father “may provide additional health insurance coverage for the minor

children at issue in this case, but he is not ordered by this Court to do so and as

such, will not receive a credit on the Form 14 for any health insurance expense.”

Because Father had no obligation under the original dissolution decree or

under the modification judgment to provide health insurance coverage for the

children, the circuit court did not abuse its discretion in refusing to give him a

credit on Line 6(c) for the cost of any health insurance coverage he chose to
purchase.

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 C.
Finally, Father asserts the circuit court erroneously failed to give him credit

for overnight stays that the children had with him.

Line 11 on Form 14 provides an “[a]djustment for a portion of amounts

expended by the parent obligated to pay support during periods of overnight

visitation or custody.” “This adjustment is based on the number of periods of

overnight visitation or custody per year awarded to and exercised by the parent

obligated to pay support under any order or judgment.” Form 14, Comment to Line

11; see also Conrad v. Conrad, 76 S.W.3d 305, 310 (Mo. App. W.D. 2002) (the

overnight visitation adjustment is “limited to ‘court-ordered’ [overnight] visitation”).

Here, the circuit court did not grant Father any period of overnight visitation or

custody, either in the original dissolution decree, or in the modification judgment.

Father is accordingly not entitled to any credit on Line 11 for overnight visitation.

V.
Next, Father argues the circuit court erred in ordering Father to pay a

portion of the Guardian ad Litem’s fees because, according to Father, the Guardian

ad Litem should have been removed for failure to perform her duties.

Under § 452.423.5, RSMo, “[t]he guardian ad litem shall be awarded a

reasonable fee for such services to be set by the court.” § 452.423.5. The circuit
court has the discretion to fix reasonable compensation for a guardian ad litem’s

representation, and we review a judgment ordering the payment of guardian ad

litem fees only for an abuse of that discretion. S.I.E. v. J.M., 199 S.W.3d 808, 822

(Mo. App. S.D. 2006).

The circuit court found that the Guardian ad Litem “has performed good and

valuable legal services to protect the best interests of the minor children,” and

awarded $10,959.62 in fees as “fair and reasonable” compensation. The court

19
ordered Father to pay 2/3 of the Guardian ad Litem’s fees ($7,306.34) and Mother to

pay the remaining 1/3 (or $3,653.28).

Father does not challenge the amount of fees the circuit court awarded to the

Guardian ad Litem. Instead, he argues that the Guardian ad Litem should not

have been awarded any fee, because the Guardian ad Litem should have been

removed for deficient performance.

Under § 452.423.4, RSMo, the circuit court must remove a guardian ad litem

that fails to “faithfully discharge such guardian ad litem’s duties.” Ultimately,

“[r]emoval of a guardian ad litem is a matter vested in the sound discretion of the

appointing court.” Guier v. Guier, 918 S.W.2d 940, 950 (Mo. App. W.D. 1996)

(citation omitted).

The circuit court did not abuse its discretion in refusing to remove the

Guardian ad Litem in this case. The record shows that the Guardian ad Litem

conducted a thorough and independent review of all the records and evidence in this

case, communicated with both Mother and Father in person and through e-mail,

and visited the minor children on multiple occasions. While Father suggests

additional actions the Guardian ad Litem could have taken, the Guardian ad

Litem’s failure to take these additional actions does not rise to the level of
dereliction of duty that would justify this Court in finding that the circuit court

abused its considerable discretion in leaving the Guardian ad Litem in place.

Further, while Father may disagree with the opinions and recommendations

expressed by the Guardian ad Litem,

[t]he guardian’s principal allegiance is to the court and h[er] function is
to advocate what [s]he believes to be the best interests of the children.
Obviously, this will likely be contrary to the position taken by one of
the parents, in this case the Father. Father’s complaints boil down to
the fact that he was upset because the guardian did not necessarily
agree with Father's positions. The trial court did not err in refusing to
remove the guardian based on Father’s allegations of bias and
prejudice.

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Guier, 918 S.W.2d at 950 (citation omitted).

VI.
In his seventh Point, Father argues the trial court abused its discretion in

awarding Mother $10,000 in attorney’s fees. Father argues the trial court abused

its discretion in awarding Mother these attorney’s fees because the court “failed to

consider and/or properly weigh[ ] the statutory factors (i.e., [Mother]’s financial

ability to pay, Father’s attempt to avoid litigation, and Mother’s misconduct [at

trial]).”

Generally, “parties to a domestic relations case are responsible for paying

their own attorney’s fees.” Alberswerth v. Alberswerth, 184 S.W.3d 81, 93 (Mo. App.

W.D. 2006) (citation omitted). However, trial courts have “considerable discretion”

to award attorney’s fees under § 452.355, RSMo, but if the court chooses to do so, it

“must comply with section 452.355.” Id. (citations omitted). In other words, the

trial court must consider “all relevant factors, including the financial resources of

both parties.” Id. (citation omitted); see Barancik v. Meade, 106 S.W.3d 582, 594

(Mo. App. W.D. 2003) (“A court is always required to consider the financial

resources of both parties before deciding a request for attorney fees.” (citation

omitted)). In addition to the parties’ financial resources, the trial court should

consider “the merits of the case and the actions of the parties during the pendency

of the action.” § 452.355.1. “When all relevant factors are considered . . . the trial

court’s decision is within its discretion.” Cohen v. Cohen, 178 S.W.3d 656, 674 (Mo.

App. W.D. 2005). Finally, there is no one-size-fits-all analysis under the relevant

factors: “The relevant factors will balance differently in each case.” Alberswerth,

184 S.W.3d at 94.7

7 The circuit court also found that Father had failed to pay his court-ordered
child support “in bad faith.” Under § 452.355.2,
[i]n any proceeding in which the failure to pay child support pursuant to a . .
. final judgment is an issue, if the court finds that the obligor has failed,

21
 In the modification judgment, the circuit court found that:

[Father], through his actions to prolong and complicate this matter
along with his actions taken in bad faith including his failure to pay
the ordered child support amount, caused [Mother] to incur attorney
fees in the amount of $20,250.00, an amount in excess of that which
would be reasonably incurred by [Mother] in this matter.
The court ordered Father to pay $10,000 of Mother’s fees, slightly less than

half of the fees it found she had incurred. Elsewhere in the court’s judgment, it

discussed the parties’ relative salaries in connection with the modification of child

support, and Father makes no argument that he is financially unable to pay the

attorney’s fees the circuit court ordered. Additionally, the court considered Father’s

actions throughout the course of these proceedings which the court personally

observed to have prolonged and complicated these proceedings – findings Father

does not challenge on appeal. In his brief, Father merely asserts additional facts

that would potentially militate in his favor (such as his attempt to mediate before

trial; and the alleged misconduct of Mother’s counsel during the litigation).

However, our function on appeal is not to reweigh the relative merit or culpability of

each party’s conduct during the litigation. There plainly were circumstances in this

case which would justify the circuit court in concluding that an award of $10,000 in

attorney’s fees to Mother was warranted.
VII.
Father argues in his eighth Point that the judge erred in failing to recuse

herself.

Under § 508.090.1(1), a judge “may be disqualified in any civil suit” if “the

judge is interested or prejudiced.” The Code of Judicial Conduct requires recusal:

without good cause, to comply with such order or decree to pay the child
support, the court shall order the obligor, if requested and for good cause
shown, to pay a reasonable amount for the cost of the suit to the obligee,
including reasonable sums for legal services.

22
 in any proceeding in which the judge’s impartiality might reasonably
be questioned, [including] where the judge has a personal bias or
prejudice concerning a party or knowledge of facts that are in dispute.
Anderson v. State, 402 S.W.3d 86, 91 (Mo. 2013) (quoting Rule 2-2.11(A)(1)). “[A]

disqualifying bias or prejudice is one that has an extrajudicial source and results in

an opinion on the merits on some basis other than what the judge learned from the

judge’s participation in a case.” Id. (quoting Smulls v. State, 10 S.W.3d 497, 499

(Mo. 2000)); see Martin v. State, 526 S.W.3d 169, 184 (Mo. App. W.D. 2017)

(“’Prejudice’ pursuant to section 508.090.1(1) aligns with the duty to recuse

pursuant to Rule 2-2.11(A).”). Because disqualifying bias must arise from an

extrajudicial source, “the mere fact that a ruling is made against a party does not

show bias or prejudice on the part of the judge.” Gordon on Behalf of G.J.E., 504

S.W.3d 836, 847 (Mo. App. W.D. 2016) (citation and internal quotation marks

omitted). We “presume[] that a judge acts with honesty and integrity and will not

preside over a hearing in which the judge cannot be impartial.” Anderson, 402

S.W.3d at 92 (citation omitted).

Father’s arguments for recusal are based on adverse rulings made by the

court during trial. Thus, Father argues that the circuit court exhibited bias: by

denying his motions to exclude Dr. Utley’s report; by excluding “an exhibit email
(which Mother objected to)”; by excluding “Father’s material evidence (Exhibits BB

[the audio recording], JJ)”; and by “sustaining Mother’s objection to Father’s

testimony that Mother’s fiancé[] stated, ‘you’re not the boss of me’ in the presence of

the children, which materially contradicted Mother’s hearsay testimony.” Even if

these rulings were erroneous, they do not establish a disqualifying bias or prejudice

from an extrajudicial source which would require the court’s recusal.

We also reject Father’s argument that the circuit court exhibited a

disqualifying bias or prejudice by “frequently threatening Father with attorney fees
if Father sought mediation, sought to secure visitation, sought to prepare for trial,

23
and/or create a record for appeal.” The record reflects that, on the occasions cited by

Father, the court merely reminded him that Mother was incurring attorney’s fees as

a result of his various litigation tactics, and that the court had the authority to

award attorney’s fees in its final judgment. Based on the record before us, we find

no abuse of discretion in the court’s refusal to recuse itself.

VIII.
Father’s ninth and final Point argues that the circuit court erred in finding

that its modified visitation schedule was in the best interests of the children.8

Under § 452.400, a court may modify an order granting visitation rights

(1) “whenever modification would serve the best interests of the child[ren],” and,

where the court is restricting a parent’s visitation, (2) “it finds that the visitation

would endanger the child[ren]’s physical health or impair [their] emotional

development.” § 452.400.2(1).

To the extent Father challenges the circuit court’s endangerment/impairment

finding necessary to impose supervised visitation, we discussed the substantial

support in the record for this finding in § I above. We do not repeat that discussion

here.

“In matters pertaining to visitation rights, we defer to the circuit court’s

assessment of the children’s best interests.” Stirling v. Maxwell, 45 S.W.3d 914, 915

(Mo. App. W.D. 2001) (citation omitted). On appellate review, “[w]e will affirm the

judgment unless it is not supported by substantial evidence, is against the weight of

the evidence, or the circuit court misstates or misapplies the law.” Id. (citation

8 In the same Point Relied On, Father argues the trial court “errored [sic] in
finding a substantial and continuing change that makes a change in custody necessary
. . . .” But the court did not order a modification of the existing custody arrangement based
on a substantial and continuing change of circumstances. The court instead only modified
the existing visitation schedule. Such a modification does not require the court to find a
“substantial and continuing change of circumstances.” Russell v. Russell, 210 S.W.3d 191,
196 (Mo. 2007); Welcome v. Welcome, 497 S.W.3d 842, 846 (Mo. App. W.D. 2016).

24
omitted). We will not reweigh the evidence before the circuit court, or decide the

best interests issue anew. Librach v. Librach, 575 S.W.3d 300, 312 (Mo. App. E.D.

2019).

In its judgment modifying Father’s visitation rights, the trial court made

explicit and detailed factual findings on each of the eight “relevant factors” to

determine the best interests of the children under § 452.375.2, RSMo. On appeal,

Father challenges the court’s factual findings under only four of the eight statutory

factors. Even as to the factors Father challenges, he takes issue only with certain of

the circuit court’s specific factual findings, or cites to additional evidence which – he

contends – mitigates or counter-balances the circumstances on which the circuit

court relied.

Father’s ninth Point essentially invites this Court to retry the “best interests”

issue, and reweigh the evidence the circuit court has already carefully considered.

We decline Father’s invitation. We find no abuse of discretion in the circuit court’s

conclusion that the parenting plan it ordered was in the best interest of the parties’

children.

Conclusion
We reverse the circuit court’s imposition of a modified child support

obligation of $554 per month on Father. We remand to the circuit court for further

proceedings on Mother’s motion to modify the child support award, consistent with

this opinion. In particular, in calculating Father’s presumed child support amount

in connection with Mother’s motion to modify, the circuit court must give Father a

credit on Line 2(c) of Form 14, to reflect Father’s support obligation for his new

daughter. In all other respects, the circuit court’s judgment is affirmed.9

9 Father filed a Motion for Criminal Contempt and Stay of Execution of
Judgment, in which he asked this Court to “Cite and Punish Jennifer Fain, Guardian Ad
Litem, and Stephanie Schutt, Respondent’s counsel for Criminal Contempt of Court, and
stay the execution of the underlying judgments on the basis of criminal contempt.” The

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 _________________________________
Alok Ahuja, Judge
All concur.

basis of Father’s motion is his contention that the Guardian ad Litem and Mother’s counsel
“knowingly suborned perjured statements [from Mother’s testimony] and knowingly offered
false evidence” in submitting Dr. Utley’s report because Mother lied to Dr. Utley. Despite
Father’s conclusory allegations, he has presented no evidence that the Guardian ad Litem
or Mother’s counsel knowingly permitted false testimony to be introduced. Father’s motion
to hold the Guardian ad Litem and Mother’s counsel in criminal contempt is denied.

26