Harrison v. Harrison

871 S.W.2d 644, 1994 Mo. App. LEXIS 413, 1994 WL 72494
CourtMissouri Court of Appeals
DecidedMarch 11, 1994
Docket18845
StatusPublished
Cited by10 cases

This text of 871 S.W.2d 644 (Harrison v. Harrison) 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
Harrison v. Harrison, 871 S.W.2d 644, 1994 Mo. App. LEXIS 413, 1994 WL 72494 (Mo. Ct. App. 1994).

Opinion

PARRISH, Chief Judge.

Celia K. Harrison (wife) appeals from the part of the judgment in this dissolution of marriage case brought by Rex W. Harrison (husband) that awarded child support in the amount of $180 per month and from the trial court’s failure to order retroactive child support from the date the petition for dissolution of marriage was filed. Wife also appeals from the amount awarded for her attorney fees. The amount of child support the trial court awarded is reversed. In all other respects, the judgment is affirmed. The case is remanded.

*645 Husband and wife were married January 8, 1991. They have one child, Cameron Parker Harrison, who was eighteen months old on the date the trial court entered judgment dissolving the marriage. Husband and wife were awarded joint physical and legal custody of the child, although wife is the custodial parent for purposes of determining the presumed amount of child support pursuant to Rule 88.01(e) in that the child is in her physical custody during substantially more time than he is in the physical custody of husband.

Husband was ordered to pay child support to wife in the amount of $180 per month. Child support was ordered paid through the Circuit Clerk of Howell County in accordance with § 452.345.2. 1 The judgment allowed wife to “claim the child as a dependent for income tax purposes.” It provided for payment of medical expenses incurred for the child and distributed nonmarital and marital property. It directed husband to pay the marital debt incurred by the parties. Husband was ordered to pay $200 toward wife’s attorney fees.

The trial court based its award of child support on the following findings that it described as relative to computations made on “the [Trial] Court’s ‘Form 14. Presumed Child Support Amount Worksheet’ calculation”: 2

1. The parties agree that [husband’s] monthly gross income is $1,156.00. [Wife’s] own figures suggest that for the seven-month period mid-June, 1992 — mid-January, 1993, the total of her gross salary and tips was $7,096.00. Form 14 Directions for Use require that the Court consider gross rather than net income. The “gross income” approach may be flawed but is binding on the Court in any event. This suggests an average monthly gross income for [wife] of $1,013.00.
[Wife’s] evidence is that business slows down at her place of employment during the colder months and her income declines at those times. This may well be true, but the Court nevertheless adopts the $1,013.00 figure as [wife’s] monthly gross income for the following reasons. First, the seven-month period on which the calculation is based includes both summer and winter months. Second, [wife] admitted she works only a few hours a week and her declination to work part-time elsewhere is based solely upon her desire to spend more time at home with the child. Certainly a party has no legal obligation to maximize his or her income, and of course there is nothing unreasonable about a mother’s spending time with her small child. Nevertheless, a party who seeks support from another may not unreasonably pass his or her own share of the support burden to the other party. Here [wife] would be attending college classes if she could. Her current nonmatriculation leaves her time available for work elsewhere if she chooses to obtain it. The $1,013.00 figure is based on [wife’s] actual gross earnings during a period of seven months. She has plenty of time to work a second job at a different high-end restaurant in Springfield if she is not going to school. Accordingly it is reasonable to use the $1,013.00 figure without reduction as wife’s monthly gross income.
2. [Wife] spends $217.00 per month for child care. However, she is paying for much more child care than she actually uses. On an ordinary work day the child will spend only two hours with the sitter, yet mother is paying for full-time child care. Line 4 b. of Form 14 requires addition of only the custodial parent’s “reasonable ” work-related child care costs. $217.00 per month is not reasonable given [wife’s] work schedule and lack of competing time constraints such as college study. Of course some amount for child care, perhaps half of $217.00 per month, would be “reasonable.” However, the Form 14 “Directions for Use” provide that the reasonable cost be reduced by “any federal income tax credit.” By this decree mother will receive the right to claim the child as *646 her dependent for federal income tax exemption purposes. Moreover she is entitled to claim a dependent child care credit in an amount surely equal to or greater than her reasonable monthly work-related child care costs. Although the precise figure was not mentioned in the evidence, the Court knows this benefit to be quite substantial and often sufficient alone to cancel any federal income tax liability whatever. For these reasons the Court has used the figure of zero for the custodial parent’s “reasonable work-related child care costs.”

Consistent with the findings in its order, the Form 14 the trial court used to calculate presumed child support used $1,013.00 per month as wife’s income (the custodial parent). It showed no reasonable work-related child care costs. It used $1,156.00 as husband’s monthly income (the noncustodial parent). The trial court calculated the presumed child support to be paid by husband as $180 per month.

In reviewing wife’s points on appeal, this being a court-tried case, this court must affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Mistler v. Mistler, 816 S.W.2d 241, 245 (Mo.App.1991).

Wife’s first point claims the trial court erred in attributing monthly income to her of $1,013 for purposes of calculating the presumed child support to be paid by husband. She contends that this amount was based on her earnings “during the busy season for her employment”; that the amount used “did not take into account the substantial drop in her income during the remainder of the year.”

A trial court has a difficult task in determining the monthly gross income of a party who is compensated by means other than an established, recurring salary. This task is complicated when the party’s employment history in his or her current job is relatively short. A trial court cannot ascribe to speculative evidence. See Hott v. Hott, 865 S.W.2d 449, 450 (Mo.App.1993). The only information available for its consideration is the evidence presented at trial that is substantive and probative. Id. The trial court’s ascertainment of $1,013 as wife’s monthly gross income is supported by substantial evidence. It is not contrary to the weight of the evidence nor is it the result of an erroneous application or declaration of law. Point I is denied.

Wife’s second point contends the trial court erred in not allowing her credit for reasonable work-related child care costs in calculating presumed child support.

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Bluebook (online)
871 S.W.2d 644, 1994 Mo. App. LEXIS 413, 1994 WL 72494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrison-v-harrison-moctapp-1994.