Andersen v. Fellers

1998 OK CIV APP 53, 960 P.2d 851, 69 O.B.A.J. 1821, 1998 Okla. Civ. App. LEXIS 33, 1998 WL 292015
CourtCourt of Civil Appeals of Oklahoma
DecidedMarch 10, 1998
Docket87823
StatusPublished
Cited by9 cases

This text of 1998 OK CIV APP 53 (Andersen v. Fellers) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andersen v. Fellers, 1998 OK CIV APP 53, 960 P.2d 851, 69 O.B.A.J. 1821, 1998 Okla. Civ. App. LEXIS 33, 1998 WL 292015 (Okla. Ct. App. 1998).

Opinions

BUETTNER, Presiding Judge:

¶ 1 Appellant Thomas R. Fellers (Fellers) appeals from the trial court’s award of child support to Appellee Andrea Andersen (Andersen). Andersen filed a petition for divorce, alleging a common law marriage existed between the parties. On the day of trial, she conceded that no marriage existed between the parties. The trial therefore was held to determine paternity and establish child support. Because we find the trial court’s decision was not against the clear weight of the evidence, we affirm.

¶ 2 Fellers opened his own business, Fellers Auto Specialists in June 1992. Fellers and Andersen began living together in February 1993. Their first child, a son, was born December 25, 1993. Andersen moved out of Fellers home at the end of January 1994. The parties reconciled and lived together in April and May 1994. Andersen filed a petition for divorce, alleging the existence of a common law marriage, on July 27, 1994. A temporary child support order was entered in November 1994, in which Fellers was ordered to pay $527.87 per month child support as well as 85% of the medical and child care expenses of the child.' The parties’ second child, a daughter, was born in January 1995. The trial court modified the temporary child support order on March 30, 1995, to provide for support of both children. In that order the child support was increased to $803.90 per month, along with 85% of the medical and child care expenses.

¶ 3 Trial was held February 28 — March 1,1996. The trial court ruled that there was no marriage between the parties, but that [853]*853the two children were born of the relationship and that Fellers is the father of the two children. The trial court found that Fellers’ income had inexplicably dropped dramatically after the temporary support order was entered and therefore imputed to Fellers the income he made before that drop. The trial court imputed $5,284/month income to Fellers. The trial court found that the total income of the parties was $6,389, which, according to the child support guidelines, resulted in $962 per month base child .support. Fellers was held responsible for 83% child support while Andersen was responsible for 18%.

¶ 4 The trial court further found that Fellers owed back child support for the first child for 8 months during 1994 when the parties were not living together, plus 2 months back child support for the second child, amounting to $4,769.80. The trial court further found that Fellers owed $1,298.21 for child support and child care amounts that were not covered by a wage assignment. The court entered a qualified medical child support order, as well as a wage assignment for the amount due. The trial court found Fellers to be in contempt for failure to pay child support under the temporary order. The court awarded Andersen $1500 as “property division” for her interest in a Cadillac that had been titled in the names of both parties but had been sold by Fellers.

¶5' Fellers’ first and second assignments of error are that the trial court erred in imputing monthly income of $5283.26 ($4,281.82 salary, $948.44 rental income, and $53 insurance benefits) to Fellers and that the court failed to follow the child support guidelines in determining gross income. Fellers argues that when he first opened his business, he worked 90 hours a week and that his income decreased when he began working 40 hours per week. The trial court found that Fellers had intentionally reduced his income in order to avoid paying the amount of child support ordered in the temporary order. Fellers insists that the trial court has forced him to work 90 hours a week in order to meet his child support obligation.

¶ 6 Andersen introduced as Plaintiffs exhibit 10 a document prepared by Fellers before the temporary support hearing. In that document, Fellers listed his net income from rental income and wages, after taxes, as $5460. In 1994, Fellers’ business paid him $24,000 in rent on the building in which the business operates. Andersen submitted an exhibit which indicated that in 1993, Fellers’ average monthly wages were $2184.68, in 1994 his average monthly wages were $4841.67, and then in 1995, Fellers’ average monthly wages dropped to $1450. The evidence also established that Fellers had a bank account with a balance between $5,000 and $9,000 which he closed in February 1995.

¶ 7 Andersen alleged, and the trial court agreed, that Fellers began paying himself significantly less just after the order for temporary support was entered in November 1994. Fellers’ 1995 W-2 form indicates that Fellers’ wages were $18,012.13, while Fellers paid one of his employees $38,576.30 in 1995. Andersen testified that while she worked for Fellers, none of the employees were paid as much as Fellers paid himself. The balance sheets for Fellers’ business indicate the business had net incomes of $23,953.13 in 1992; $64,117.17 in 1993; $6,606.24 in 1994; and $8,258.41 in 1995. Fellers’ 1993 Individual Tax Return shows his adjusted gross income that year was $63,329, which would average $5277 per month. Fellers’ 1994 tax return shows an adjusted gross income of $53,857, which would average $4488 per month. Fellers’ 1995 tax return shows an adjusted gross income of $17,455, which would average $1454 per month.

¶ 8 We find the evidence supports the trial court’s determination that Fellers intentionally decreased his income simply to decrease his child support obligation. All child support is computed as a percentage of the combined gross income of the parents. 43 O.S.1991 § 118(1). Section 118(3) provides:

For income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, gross income is defined as gross receipts minus ordinary and necessary expenses required for self-employment or business operation. Specifically [854]*854excluded from ordinary and necessary expenses for purposes of this section are amounts determined by. the court to be inappropriate for determining gross income for purposes of calculating child support. The court shall carefully review, income and expenses from self-employment or operation of a business to determine an appropriate level of gross income available to the parent to satisfy a child support obligation. A determination of business income for tax purposes shall not control for purposes of determining a child support obligation.

The court explained, in announcing its decision March 14,1996, that it could not see any reason for the dramatic drop in Fellers’ income, other than an. intentional attempt to avoid paying child support. The court noted that it did not find persuasive Fellers’ argument that he would have to work 90 hours per week to earn the amount of money he had earned in 1994. We .agree. Taking the figures cited above regarding Fellers’ monthly income in 1994 and 1995, Fellers’ hourly wage, even working 90 hours per week, was around $13 in 1994 and his hourly wage for 50 hours dropped to $7.25. We find therefore that, if Fellers had continued to pay himself the same wage, for fewer hours, his income still would have been about $2600 per month, rather than $1450. Added to that number is the $2000 per month in rent Fellers’ business had paid him in 1994.

¶ 9 We may only reverse the trial court’s computation of child, support if it is clearly against the weight of the evidence. State ex rel. Dept. of Human Services v. Strohmeyer, 1995 OK CIV APP 157, 925 P.2d 77. We find the trial court’s determination is supported by the evidence and is in accord with the child support guidelines.

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Andersen v. Fellers
1998 OK CIV APP 53 (Court of Civil Appeals of Oklahoma, 1998)

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Bluebook (online)
1998 OK CIV APP 53, 960 P.2d 851, 69 O.B.A.J. 1821, 1998 Okla. Civ. App. LEXIS 33, 1998 WL 292015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andersen-v-fellers-oklacivapp-1998.