Kohl v. Kohl

397 S.W.3d 510, 2013 WL 1296688, 2013 Mo. App. LEXIS 408
CourtMissouri Court of Appeals
DecidedApril 2, 2013
DocketNo. WD 74592
StatusPublished
Cited by7 cases

This text of 397 S.W.3d 510 (Kohl v. Kohl) 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
Kohl v. Kohl, 397 S.W.3d 510, 2013 WL 1296688, 2013 Mo. App. LEXIS 408 (Mo. Ct. App. 2013).

Opinion

JOSEPH M. ELLIS, Judge.

John Kohl (“Father”) appeals from a judgment entered in the Circuit Court of Cole County granting Jill Kohl’s (“Mother”) motion to modify child. support. For the following reasons, the judgment is reversed and remanded for further proceedings.

Father and Mother were married on November 21, 1992. Four children were born of the marriage.

On May 26, 2005, approving and incorporating a separation agreement between the parties, the circuit court entered its judgment dissolving the marriage between Father and Mother. The court awarded Father and Mother joint legal and physical custody of the four minor children. In the settlement agreement, the parties expressly agreed that “the presumed child support amount, as calculated pursuant to Rule 88.01, Section 452.340, and Form 14 is unjust and inappropriate.” Father was ordered to pay $565.00 per month in child support and awarded two of the four available tax dependency exemptions.1

On December 21, 2006, again pursuant to an agreement between Father and Mother, the court entered a judgment increasing Father’s child support obligation to $1,309.00 per month. The parties submitted a jointly prepared Form 14, which they agreed was accurate and “represents an amount of child support that is just, reasonable and appropriate under the circumstances.” The Form 14 submitted by the parties reflected that Mother’s gross income was $1,625.00 per month and Father’s gross income was $14,166.00 per month. Father received a Line 11 credit of 33 percent for overnight visitation. The trial court ordered that Father’s child support be increased to $1,309.00 per month in accordance with the stipulated Form 14. In all other respects, the decree of dissolution was left in full force and effect.

Subsequently, due to Father’s work demands, Mother agreed to quit a second job she had on Sunday nights in order to watch the children, and Father agreed to pay as additional child support an amount equal to the income Mother derived from that job, approximately $150.00 per month. Accordingly, Father began paying Mother $1,450.00 per month. Father also voluntarily paid for several miscellaneous expenses incurred on behalf of the children [513]*513including school lunches, karate lessons, tutoring, and summer camps.

On August 27, 2010, Mother filed a motion to again modify child support. She claimed that circumstances had changed in that (1) the parties’ incomes had changed to where there would be more than a twenty percent change in child support, (2) Father was not exercising his Sunday overnight visitation, (3) business trips caused Father to miss approximately three weeks per year of his visitation time, and (4) more than three years had passed since the last modification.

Following an evidentiary hearing, on July 13, 2011, the circuit court entered its judgment finding that substantial and continuing change in circumstances had occurred including, but not limited to: (1) an agreement by the parties to exercise a “visitation” schedule different than that ordered by the court, (2) a change in the incomes of the parties giving rise to a change of more than twenty percent in the presumed child support amount, and (3) the passage of more than three years since the last modification. The circuit court averaged Father’s gross yearly income from the previous four years and thereby determined that his monthly gross income, including bonuses, was $16,143.00. The court found that Mother’s “gross wage of $2,073.00 per month most accurately reflects [Motherj’s grossly [sic] month [sic] income taking into account all sources of income including but not limited to bonuses and interest income.” The court found that Father was not entitled to a line 11 credit for overnight visitation because Mother’s gross income fell below the $2,100.00 threshold for a parent with four children. Based on those findings, the court adopted a Form 14, prepared by Mother’s attorney subsequent to trial, calculating Father’s presumed child support to be $2,647 per month and ordered Father to pay that amount retroactive to September 1, 2010. The court also altered the previous division of the dependency tax exemptions to award Mother all four and ordered Father to pay Mother $2,000.00 in attorney’s fees. Father brings eight points on appeal, several of which are interrelated.

“The standard of review in a court tried case, including one pertaining to modification of child support, is set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).” Cross v. Cross, 318 S.W.3d 187, 189 (Mo.App. W.D.2010) (internal quotation omitted). “We will affirm the judgment unless there is no substantial evidence to support the trial court’s decision, the decision is against the weight of the evidence, or the trial' court’s decision erroneously declares or applies the law.” Wightman v. Wightman, 295 S.W.3d 183, 187 (Mo.App. E.D.2009). “We view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict and we disregard all contrary evidence.” Id.

In his first point, Father claims that the trial court erred in modifying child support based upon the twenty-percent standard of § 452.370 because that standard does not apply when the previous judgment was based upon an agreement that deviated from the child support guidelines. He argues that the previous judgment deviated from the child support guidelines by allocating him two of the four child dependency exemptions.

“Child support remains subject to modification even though the original decree incorporated a settlement agreement between the parties.” In re Marriage of Wilson, 181 S.W.3d 575, 583 (Mo. App. S.D.2005). “Pursuant to Section 452.370.1, in order to modify a child support award, there must be a showing of changed circumstances so substantial and [514]*514continuing as to make the terms of the support award unreasonable.” Id. “The parent seeking the modification has the burden of proving a substantial and continuing change in circumstances sufficient to modify child support.” Id. “Once the party seeking modification has met the burden of showing changed circumstances, the child support shall be determined in conformity with criteria set forth in section 452.340 and applicable Supreme Court Rules.” Eaton v. Bell, 127 S.W.3d 690, 697 (Mo.App. W.D.2004).

Section 452.370.1 provides:

If the application of the child support guidelines and criteria set forth in section 452.340 and applicable supreme court rules to the financial circumstances of the parties would result in a change of child support from the existing amount by twenty percent or more, a prima facie showing has been made of a change of circumstances so substantial and continuing as to make the present terms unreasonable, if the existing amount was based upon the presumed amount pursuant to the child support guidelines.

§ 452.370.1. “The twenty percent provision in section 452.370.1 is inapplicable when the existing child support amount is not based upon the presumed amount under the child support guidelines.” Talley v. Bulen,

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Cite This Page — Counsel Stack

Bluebook (online)
397 S.W.3d 510, 2013 WL 1296688, 2013 Mo. App. LEXIS 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kohl-v-kohl-moctapp-2013.