C.E.S. v. D.D.S.

783 S.W.2d 458, 1990 Mo. App. LEXIS 135, 1990 WL 4125

• Court: Missouri Court of Appeals
• Decided: January 23, 1990
• Docket: No. 56188
• Status: Published

Opinions

GRIMM, Judge.

In this dissolution case, D.D.S. (wife) appeals. She contends that the trial court erred in awarding her an inadequate amount of (1) child support, (2) maintenance, and (3) attorney fees. We modify the amount of child support, and affirm.

C.E.S. (husband) and wife were married in 1970. Their first child, C., was born in May, 1971. Their second child, R., was born in February, 1973. When R. was a young child, he was diagnosed as having muscular dystrophy.

Their third child, M., was born in August, 1980. In March, 1987, their fourth child, K., arrived. K. also has muscular dystrophy, although in the early stages. He falls down “[pjretty frequently”; his “legs just give out under him.”

Husband has custody of C., the oldest child; the other three children live with wife. At the time of the hearing, R. was almost 16 years old. Although totally disabled, R. does attend high school.

Husband is a partner in a law firm. His average income, before taxes, for 1986 and 1987 was $73,800; after taxes, it averaged $55,133. Wife, a full-time homemaker, last worked outside the home in 1977. Her only income is $150 per year from stock dividends. Husband was ordered to pay monthly child support of $1,173.00 and maintenance of $700.00.

I

Wife first contends that the trial court erred and abused its discretion in awarding her only $1,173.00 per month child support.

Husband testified that monthly expenses for his oldest child and himself are $2,981.00. Wife testified that the monthly expenses for the other three children and herself are $3,250.00. Combined, these expenses would exceed husband’s average monthly income after taxes.

At trial, husband testified that monthly child support of $1,172.63 would be appropriate. This sum was computed based on guidelines and a table in Missouri Family Law, § 13.39 (Mo.Bar 3d ed. 1982). In addition, husband said he would maintain his major medical insurance through the Missouri Bar Plan. This plan has a $700.00 deductible.

Husband suggested that the parties split any medical expenses not covered by insurance. In 1986, those expenses were about $3,000.00; in 1987, $5,400.00. In 1988, non-covered medical expenses were averaging $200.00 per month.

The use of a guide in setting child support is helpful. McM. v. McM., 506 S.W.2d 14, 17 (Mo.App.W.D.1974). However, “[i]n using such a guide, it must also be remembered that the special needs of some children require the granting of larger child support awards.” Missouri Family Law, § 13.39 (Mo.Bar 3d ed. 1982). Here, the special needs of these children require a larger child support award than that provided by a guide.

In 1988, The Missouri Bar published the fourth edition of Missouri Family Law. It does not contain the table used by the trial court that appeared in the 1982 edition. Rather, it contains Missouri Child Support Guidelines developed by a task force. These guidelines were developed in response to 1984 Pub.L. 98-378, better known as the Child Support Enforcement Amendments. 1 Mo. Family Law, § 14.15 (Mo.Bar 4th ed. 1988).

In 1989, the General Assembly directed the Supreme Court of Missouri to establish guidelines for child support. § 452.340.7, RSMo Supp.1989. On October 2, 1989, Rule 88.01, Presumed Child Support Amount, was adopted.

* That Rule may be followed until April 1, 1990, and must be followed after that date.

The Rule 88.01 worksheet, as well as its directions, are similar, but not identical, to the worksheet and directions in the fourth edition of Missouri Family Law. The “Schedule of Basic Child Support Obligations” in Rule 88.01 is identical to that in the fourth edition of Missouri Family Law. Based on husband’s gross income, that schedule indicates child support of $1,352.00 per month for the three children would be appropriate.

The Rule 88 calculation is helpful, but not decisive. For here we have the tragic and unusual circumstance that two of the three children in wife’s custody have muscular dystrophy. As a result, additional expenses for their care are incurred.

If we were to remand this case to the trial court, in all probability, application of the Rule 88.01 Schedule of Basic Child Support Obligations would be mandatory. In view of this and Rule 84.14, remand is not necessary. Instead, in compliance with Rule 84.14’s direction to enter “such judgment as the court ought to give,” child support is set at $500.00 per child per month.

In the Directions for Use of the Worksheet contained in Rule 88.01, the Comments section recognizes that “no schedule can encompass all of the necessary costs of child rearing or unusual circumstances.” The Comments state that “extraordinary medical ... expenses are not factored into the schedule.” The children here have extraordinary medical expenses that are not included in the monthly support award.

The trial court ordered husband to keep his medical insurance on himself and the children. It also ordered that any “items not covered by insurance shall be divided equally between the parties, including any insurance deductible on the minor children.” The children’s extraordinary medical expenses require us to modify this order to provide that any “items not covered by insurance shall be paid by husband.”

II

For her second and third points, wife contends that the trial court abused its discretion in awarding only $700.00 per month for maintenance, and $1,500.00 attorney fees. These orders are supported by substantial evidence and an extended discussion would have no precedential value. Rule 84.16(b). Points denied.

The judgment of the trial court, as modified, is affirmed.

SATZ, P.J., concurs. SMITH, J., dissents in separate opinion.

775-776 S.W.2d XXX (Missouri Cases).