Carter v. Carter

4 S.W.3d 562, 1999 Mo. App. LEXIS 1046, 1999 WL 552755
CourtMissouri Court of Appeals
DecidedJuly 30, 1999
DocketNo. 22509
StatusPublished
Cited by4 cases

This text of 4 S.W.3d 562 (Carter v. Carter) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carter v. Carter, 4 S.W.3d 562, 1999 Mo. App. LEXIS 1046, 1999 WL 552755 (Mo. Ct. App. 1999).

Opinion

PHILLIP R. GARRISON, Chief Judge.

Brian Earl Carter (“Husband”) appeals from the trial court’s order entered pursuant to his motion to determine the amount of child support arrearage owing to Martha Jan Carter (“Wife”). He claims that he should have been, but was not, given credit against his child support obligation for various amounts he paid to Wife and third parties. We reverse in part, affirm in part, and remand.

During the pendency of Wife’s earlier dissolution of marriage action, she filed a motion for a pendente lite (“PDL”) order which was sustained, and Husband was ordered to pay $125 per week as temporary maintenance and $20 per week for each of their two children as temporary child support beginning July 21, 1990. He was also ordered to pay utilities and other expenses of the marital home. Husband made all of the payments included in the PDL order. On October 14,1992, the trial court entered a dissolution decree in which it ordered neither party to pay maintenance to the other, but ordered Husband to pay $475 per month per child as child support, retroactive to November 1, 1990, with the payments to be made to the circuit clerk’s office.1 Husband thereafter made some child support payments directly to Wife rather than through the circuit clerk’s office. Wife subsequently filed a Notice of Income Withholding pursuant to Section 452.850, RSMo Cum.Supp.1992, which resulted in child support payments being withheld through the circuit clerk’s office beginning in February 1993. The income withholding resulted in payment of less than the $950 per month owing on child support, and Wife caused a series of garnishments to be served. This also resulted in payment of less than the total amount of child support owing.

Husband filed a motion to determine the amount of child support arrearage on February 7, 1996. After an evidentiary hearing, the court held that there was a child support arrearage of $28,649, plus accrued interest, after giving credit for child support payments made to Wife under the PDL order after November 1, 1990, and all other child support payments made through the circuit clerk’s office. He appeals contending that he should have also received credit against his child support obligation for the other payments made pursuant to the PDL order, including those for temporary maintenance and utility bills; payments made directly to Wife rather than to the circuit clerk’s office; in kind payments he made for delinquent real estate taxes on the marital residence, to stop a foreclosure of the property, and utilities furnished for the marital home; and the value of a Kubota tractor which he was awarded in the dissolution and he claims Wife sold.

The standard of review of a court-tried case, found in Rule 73.01(c),2 was construed in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The judgment will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Id. at 32. Under this standard, considerable deference is accorded judgments turning on evidentiary and factual evaluations by the trial court. In re Marriage of Fry, 827 S.W.2d 772, 775-76 (Mo.App.S.D.1992). No such deference is accorded, however, when the law has been erroneously declared or applied. Id. at 776.

[565]*565In his first point relied on, Husband contends that the trial court erred in failing to provide him with a credit or set-off against his child support obligation for all payments he made pursuant to the PDL order “which terminated as a result of the retroactive application of the decree of dissolution.” He argues that he should receive credit against his child support obligation for $13,000 in temporary maintenance and $4,988 primarily for utilities, both of which he paid pursuant to the PDL order from November 1, 1990, through October 14, 1992, the date of the dissolution decree. He theorizes that because the dissolution decree, which established the amount of child support and awarded no maintenance, was retroactive to November 1, 1990, it superceded and terminated any maintenance or other utility payments ordered under the PDL order. In support, he relies on cases such as Wakili v. Wakili, 918 S.W.2d 332 (Mo.App. W.D.1996), which hold that a PDL order terminates and ceases to exist when the decree of dissolution is entered. Essentially, he argues that because the payments under the PDL order were made after the retroactive date of the decree, they were voluntary and should be applied to his child support obligation under the decree.

Contrary to Husband’s argument, the dissolution decree was not totally retroactive to November 1, 1990. Instead, the retroactive provision applied only to the child support award. The effective date of the decree as it related to maintenance and other payments was the date it was entered, October 14, 1992. Husband does not, in his point, claim entitlement to credits after that date.

Husband also cites Roedel v. Roedel, 788 S.W.2d 788, 791 (Mo.App. E.D.1990), and Woolsey v. Woolsey, 904 S.W.2d 95, 98 (Mo.App. E.D.1995). His reliance on these cases is misplaced. In Roedel, the appeal was from an award of temporary maintenance and child support which was made retroactive. While the appellate court agreed with the husband’s complaint that he should receive credit against the retroactive awards for sums he paid between the time of the separation and the hearing, it was unable to discern how much had been paid for maintenance versus child support or for gifts. It held that the “[hjusband should not be required to make double payments for maintenance and child support,” and remanded for a determination of how the monies he had paid should be allocated between those categories. 788 S.W.2d at 791. Here, the appeal is not from the PDL order, the only retroactive award was for child support, and the trial court awarded Husband credit for the amount of child support paid under the PDL order.

In Woolsey, the trial court awarded retroactive child support and maintenance. The husband successfully argued that retroactive maintenance was not authorized in a dissolution decree. 904 S.W.2d at 98. He also contended that the trial court had failed to credit him for voluntary payments he made for his child prior to the dissolution. The appellate court held that “[father is entitled to credits against the retroactive award for amounts he paid to and for a child between the time of separation and the time of the hearing.” Id. (citing Roedel, 788 S.W.2d at 791). The court remanded because it was unable to determine how much had been paid for the child versus the mother. Id. In the instant case, as indicated above, Husband received credit for the child support paid under the PDL order. He seeks, however, additional credit for the maintenance payments made to Wife, as well as the utility payments “and any other expenditures” on the theory that they were “all paid for purposes of support, all benefiting the family and the children.” Roedel and Woolsey do not support his theory. Therefore, Husband’s first point is denied.

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Bluebook (online)
4 S.W.3d 562, 1999 Mo. App. LEXIS 1046, 1999 WL 552755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-carter-moctapp-1999.