Decker v. Davis

2007 OK CIV APP 46, 162 P.3d 956, 2007 Okla. Civ. App. LEXIS 21, 2007 WL 1599454
CourtCourt of Civil Appeals of Oklahoma
DecidedFebruary 28, 2007
DocketNo. 103,301
StatusPublished

This text of 2007 OK CIV APP 46 (Decker v. Davis) 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
Decker v. Davis, 2007 OK CIV APP 46, 162 P.3d 956, 2007 Okla. Civ. App. LEXIS 21, 2007 WL 1599454 (Okla. Ct. App. 2007).

Opinion

DOUG GABBARD II, Presiding Judge.

' 1 Plaintiff, Marcy Lynn Decker (Mother), appeals from an order of the trial court which modified a prior child support order. We reverse and remand with directions.

[958]*958FACTS

€2 Mother and Defendant, Thomas Stan Davis (Father), are the natural parents of T.L.D.B., born November 10, 1991. The parties were never married. On December 14, 1992, Mother obtained an order in a Colorado court which established Father's paternity regarding the child and required him to pay $175 per month in child support. Subsequently, Mother moved to Blackwell, Oklahoma, and Father moved to San Antonio, Texas.

T3 On August 12, 2005, Mother filed a petition to assume jurisdiction and modify child support in the District Court of Kay County, Oklahoma. The record does not indicate any objection or other written pleading on Father's behalf, except a written entry of appearance filed by his attorney. However, on December 80, 2005, both parties appeared for a hearing on the petition, and presented witnesses and evidence. At the conclusion of the hearing, the trial court granted Mother's petition. In its order modifying child support, the trial court found that Mother's gross yearly income was $23,500, and that Father's gross yearly income was $50,000. The court also concluded that an automobile allowance that Father received from his employer should not be included in the computation of Father's gross yearly income. Using the previously referenced income numbers, the trial court applied the Uniform Child Support Guidelines to raise Father's child support to $508.88 per month. The trial court also sua sponte granted Father the right to claim the child for tax exemption purposes during the tax years 2005, 2006, 2008, and 2009, and granted Mother the right to claim the child for such purposes during 2007.

4 From this order, Mother now appeals.

STANDARD OF REVIEW

15 Child support proceedings are matters of equitable cognizance. Merritt v. Merritt, 2003 OK 68, 73 P.3d 878. Matters relating to child support are addressed to the sound legal discretion of the trial court, and will not be reversed absent a showing of abuse of discretion, or that the decision is against the clear weight of the evidence. Archart v. Arechart, 2006 OK CIV APP 4, 128 P.3d 1116.

ANALYSIS

16 Mother raises two propositions of error on appeal: (1) that the trial court erred in determining Father's gross income and in failing to include his vehicle allowance as part of that income; and (2) that the court erred in awarding Father tax exemptions for the child.

17 Title 48 0.8.2001 § 118(E)(B)(e) provides:

Expense reimbursements or in-kind payments received by parent in the course of employment, self-employment, or operation of a business shall be counted as income if they are significant and reduce personal living expenses. ...

This Court applied this statute in Hees v. Hees, 2008 OK CIV APP 103, 82 P.3d 107, cited by Mother, wherein the trial court refused to include the value of the father's on-base military housing in his income because he did not receive the "free housing" as a paid allowance. We stated:

Under this statute, the trial court is not given discretion to decide whether free housing or a company car should be or can be included as income. To the contrary, the trial court is given a mandatory directive to include free housing as income where the free housing is "significant and reduce(s) personal living expenses." Application of this standard to the particular case does not involve the exercise of discretion, but rather presents a question of fact.

Id. at 15, 82 P.3d at 109. Based upon the evidence, we concluded that the off-base living allowance ($688 per month) compared to the father's income ($2,844 per month) did significantly reduce the father's living expenses and should be included as income.

T8 In the present case, the trial court found that "the vehicle was used in his [Father's] business and it's required and they provide for it and it's not an income to him." This statement is not consistent with the language of the statute or the reasoning of Hees. Moreover, a party may not avoid in[959]*959cluding such benefits as income affecting personal living expenses merely by designating them as a "business" reimbursement. See Fitegerald v. Sharum, 1998 OK CIV APP 118, 857 P.2d 92. Any portion of such reimbursement which "is significant and reduce(s) personal living expenses" may be included as income under § 118.

{9 Even so, in this case it is not clear that any portion of the benefit significantly reduced Father's personal living expenses. No evidence was presented that Father used the vehicle for anything other than business purposes. While Father testified that he used the allowance, in part, to pay for the vehicle and insurance, it is not clear that he received any portion of the allowance for that purpose. To the contrary, his tax returns indicate that previous business mileage deductions exceeded previous allowances. Although Father had changed jobs, and his allowance was greater, he testified that his allowance was still less than his actual expenses.

110 As the appellant, Mother has the burden of producing a sufficient record to demonstrate error. Pracht v. Okla. State Bank, 1979 OK 43, 592 P.2d 976. Absent a record showing otherwise, an appellate court presumes that the trial court did not err. Hamid v. Sew Original, 1982 OK 46, 645 P.2d 496. Based upon the record presented, we are unable to find that the trial court's decision on this issue of fact is contrary to the greater weight of the evidence.

11 Mother also claims that the trial court incorrectly determined Father's gross income for the purpose of calculating child support. In addressing this claim, 48 0.8. Supp.2005 § 118(E)(4)(a), provides for calculating "gross income" by using, whichever is most equitable:

(1) all earned and passive monthly income,
(2) all passive income, and earned income equivalent to a forty-hour work week plus such overtime and supplemental income as the court deems equitable,
(3) the average of the gross monthly income for the time actually employed during the previous three (3) years, or
(4) the minimum wage paid for a forty-hour work week.

The trial court determined that Father's gross income was $50,000 annually, or $4,166.67 monthly. In doing so, it apparently used the average of his gross income for the three previous years, as reflected in Line 1 of his W-2 Forms for 2002, 2003, and 2004 (Le., $48,498.56, $49,000.40, and $52,156). This was improper.

112 The term "gross incoine" does not necessarily mean the same thing under the Oklahoma statute as it does under the Internal Revenue Code. In re M.B. and A.B., 1998 OK CIV APP 35, 956 P.2d 171. Section 118(E)(2)(a)(1) defines "gross income" as including earned and passive income from any source. Under subsection (E)(@2)(a)(8), "passive income" includes pensions and annuities. Father testified that he had a 401(k) Plan into which a portion of his income was placed.

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Related

Fitzgerald v. Sharum
857 P.2d 92 (Court of Civil Appeals of Oklahoma, 1993)
Department of Human Services v. Glasby
1993 OK CIV APP 126 (Court of Civil Appeals of Oklahoma, 1993)
Thrash v. Thrash
1991 OK 32 (Supreme Court of Oklahoma, 1991)
Hamid v. Sew Original
1982 OK 46 (Supreme Court of Oklahoma, 1982)
Pracht v. Oklahoma State Bank
592 P.2d 976 (Supreme Court of Oklahoma, 1979)
Roberts v. State
881 P.2d 1 (Nevada Supreme Court, 1994)
Hees v. Hees
2003 OK CIV APP 103 (Court of Civil Appeals of Oklahoma, 2003)
Arehart v. Arehart
2006 OK CIV APP 4 (Court of Civil Appeals of Oklahoma, 2005)
Merritt v. Merritt
2003 OK 68 (Supreme Court of Oklahoma, 2003)
White v. Polson
2001 OK CIV APP 88 (Court of Civil Appeals of Oklahoma, 2001)
Hughes v. Hughes
518 N.E.2d 1213 (Ohio Supreme Court, 1988)

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Bluebook (online)
2007 OK CIV APP 46, 162 P.3d 956, 2007 Okla. Civ. App. LEXIS 21, 2007 WL 1599454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/decker-v-davis-oklacivapp-2007.