Gambill v. Gambill

2006 OK CIV APP 73, 137 P.3d 685, 2006 Okla. Civ. App. LEXIS 40, 2006 WL 1688448
CourtCourt of Civil Appeals of Oklahoma
DecidedMarch 28, 2006
Docket101,183
StatusPublished
Cited by14 cases

This text of 2006 OK CIV APP 73 (Gambill v. Gambill) 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
Gambill v. Gambill, 2006 OK CIV APP 73, 137 P.3d 685, 2006 Okla. Civ. App. LEXIS 40, 2006 WL 1688448 (Okla. Ct. App. 2006).

Opinions

Opinion by

JANE P. WISEMAN, Presiding Judge.

T1 Father, Bruce David Gambill, appeals from a decree of divorcee. The issue presented is whether the trial court erred in caleu-lating child support for the parties' minor children. Upon review of the record on appeal and applicable law, we find that the trial court did abuse its discretion when it failed to consider farm income when determining Mother's gross income for child support computations but did not err in refusing to consider an adoption subsidy and social security survivors' benefits when calculating child support payments.

FACTS AND PROCEDURAL BACKGROUND

T2 Father and Mother, DonEtta Gambill, were married on April 6, 1995. The couple adopted two children during the course of their marriage, M.A.G., born January 19, 1998, and G.W.G., born on March 8, 1999. Father filed a petition for divorce on October 3, 2008. Following trial, the court divided the marital estate, awarded sole legal custody of the minor children to Mother with visitation to Father, and ordered Father to pay $1,165.93 monthly for child support.

1 3 On appeal, Father asserts that the trial court erred in computing child support. The trial court found that Father's monthly income is $7,746, consisting of $7,822.92 in regular monthly salary and $440.79 in excess benefit allowance. The court found Mother's [688]*688average monthly income to be $1,609.59 from her work as a real estate broker.

T4 Father testified at trial that Mother had received $9,000 the previous year from a soybean crop harvested from a farm, part of which was owned by Mother prior to the parties' marriage and part of which was acquired during the marriage, and that Mother receives $350 per month in rent from a farm house that Mother owned prior to marriage. Father testified that the parties also receive an adoption subsidy of $300 per month per child from the State of Oklahoma and social security survivors' benefits of "roughly a little over $300 total for both children." Mother testified that, at the time of trial, she was receiving the adoption subsidy and social security payments which together totaled $912 per month.

T5 In determining the amount of income attributable to Mother for the purpose of computing child support, the trial court did not include the crop or rental income, the adoption subsidy, or the social security benefits. Father appeals.

STANDARD OF REVIEW

16 Child support proceedings are matters of equitable cognizance. Burgess v. Burgess, 2000 OK CIV APP 122, ¶ 10, 15 P.3d 526, 528. On appeal from matters involving child support, this Court will affirm the order of the trial court "if it is just and equitable." Id. "We may only reverse the trial court's computation of child support if it is clearly against the weight of the evidence." Andersen v. Fellers, 1998 OK CIV APP 53, ¶ 9, 960 P.2d 851, 854.

T7 Father asserts the trial court should have considered the government benefits paid on behalf of the children as a credit against his child support obligation, as part of the gross child support of both parties, or as income attributable to Mother. The question of whether the trial court properly declined to consider the government benefits presents a question of law. See Dye v. White, 1999 OK CIV APP 20, ¶ 1, 976 P.2d 1086, 1086. "Issues of law are reviewed de movo since an appellate court has plenary, independent and non-deferential authority to reexamine a trial court's legal rulings." K & H Well Serv., Inc. v. Teina, Inc., 2002 OK 62, ¶ 9, 51 P.3d 1219, 1223.

ANALYSIS

I. Crop and Rental Income

T8 Father asserts that the trial court erred in computing child support by excelud-ing income Mother receives for crops and rental income. Father states that the parties owned an income-producing farm property, part of which, including a rent house, was Mother's separate property, and part of which was jointly acquired during the marriage.

T9 Mother included the following in her pretrial financial declaration as property individually owned by her: "Farm house, valued at approximately $65,000, with no land. It sits on a lot, and continues to be in my name, only, DON ETTA PATTERSON. At this time, there is no debt associated with this property." The same document also contains the following statements under the heading "Business Interests": "(a) [Mother] continues to maintain her separate property farm house as a rental property. (b) The income generated from the farm house rental is considered by her to be her separate property income. (c) It is believed that the characteristic of this rental property is her 'separate property'" Mother retained both the farm and the farm rent house under the divorce decree.

$10 "All child support shall be computed as a percentage of the combined gross income of both parents." 43 O.S. Revised Supp.2005 § 118(E)(I). Gross income "includes earned and passive income from any source" except income that is specifically excluded under the statute. 48 O.S. Revised Supp.2005 § 118(E)@Q)(a)(1). Earned income is "income received from labor, or the sale of goods or services and includes, but is not limited to, income from: (a) salaries, (b) wages, (c) commissions, (d) bonuses, and (e) severance pay." 48 O.S. Revised Supp.2005 § 118(E)(@Q)(a)(2) (emphasis added). Passive income is "all other income and includes, but is not limited to, income from: (a) dividends, (b) pensions, (c) rent, (d) interest income, (e) [689]*689trust income, (£) annuities, (g) social security benefits, (h) workers' compensation benefits, i) unemployment insurance benefits, (J) disability insurance benefits, (k) gifts, (F) prizes, and (m) royalties." 48 O.S. Revised Supp. 2005 § 118(E)(2)(a)(B) (emphasis added). "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 operations." 48 0.S. Revised Supp. 2005 § 118(E)B)(a).

"11 Under the terms of Section 118, income received by Mother for crops or rental should have been included in her gross income for purposes of child support computation. Mother asserts on appeal that tax returns filed by the parties prior to the divorce show that the farm house rental and the crops resulted in losses for tax purposes. Mother points to six income tax returns that show a farm income loss and four tax returns that show a rental income loss.

112 Although previous tax returns indicate a loss for both the crop sales and the rental property, the presentation of the tax returns alone cannot end our inquiry into Mother's gross income. "Taxable income on an income tax return does not control 'income' for child support purposes." Minnich v. Minnich, 1995 OK CIV APP 60, ¶ 9, 898 P.2d 747, 750. The Court of Appeals in Minnich went on to say, "[Section] 118(B)(3) requires the court to carefully review income and expenses from the operation of a business and determine an appropriate level of gross income to be used to determine the amount available to use in calculating child support." Id.

118 The record does not reflect the trial court's decision on Father's request to include the crop income and farm house rental in Mother's gross income for purposes of calculating child support.

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Gambill v. Gambill
2006 OK CIV APP 73 (Court of Civil Appeals of Oklahoma, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
2006 OK CIV APP 73, 137 P.3d 685, 2006 Okla. Civ. App. LEXIS 40, 2006 WL 1688448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gambill-v-gambill-oklacivapp-2006.