Lokeman v. Flattery

146 S.W.3d 422, 2004 Mo. App. LEXIS 1488, 2004 WL 2339830
CourtMissouri Court of Appeals
DecidedOctober 19, 2004
DocketWD 62821
StatusPublished
Cited by13 cases

This text of 146 S.W.3d 422 (Lokeman v. Flattery) 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
Lokeman v. Flattery, 146 S.W.3d 422, 2004 Mo. App. LEXIS 1488, 2004 WL 2339830 (Mo. Ct. App. 2004).

Opinion

JAMES M. SMART, JR., Judge.

Mark Flattery (“Father”) appeals the trial court’s modification of the decree that dissolved his marriage to Rhonda Loke-man (“Mother”). Father claims that the trial court erred in (1) awarding child support in the amount of $1,047 per month to Mother, (2) awarding retroactive child support in the amount of $4,698 to Mother, (3) and awarding attorneys’ fees in the amount of $8,190 to Mother. We reverse the portion of the decree dealing with retroactive child support and affirm in all other respects.

Factual Background

The parties’ marriage was dissolved on June 30, 1999. The parties had two daughters, who, at the time of the dissolution, were eight years old and four years old, respectively. The original decree awarded the parties joint legal and physical custody of their children. The decree also ordered Father to pay Mother $752 per month for the support of the two children.

On January 15, 2001, Father filed a “motion to modify child support and visitation.” Father requested, inter alia, that the child support be decreased, alleging that his income had decreased. One month later, Mother answered by fifing her own motion to modify child support and visitation and requesting an increase in child support. The parties settled the visitation issues prior to trial.

As for the child support issues, Father submitted a Form 14 with a presumed child support amount (PCSA) of $605 per month. Mother submitted two Form 14s, one with her former full-time salary and the other with her then part-time salary. At the time Husband filed his modification motion (January 2001), Mother worked full-time for the Kansas City Star, receiving a yearly salary of around $70,000. However, in September 2002, Mother became a part-time employee. Accordingly, her first Form 14 had a PCSA of $890 per month, while the second had a PCSA of $1,047 month, reflecting her change in salary.

On March 10, 2003, the court issued its “Judgment of Modification,” in which the court adopted Mother’s second Form 14. Accordingly, it increased Father’s child support payments to $1,047 per month. The court found that Father’s income had increased, Mother’s income had decreased, and the children’s expenses had increased. Moreover, because the matter had been pending for more than two years, the court ordered Father to pay retroactive child support. The court awarded Mother such support for January 2001 through August 2002 in the amount of $890 per month (based on her full-time salary) and for September 2002 through February 2003 (based on her part-time salary) in the amount of $1,047 per month. Finally, the court ordered Father to pay a portion of *426 Mother’s attorneys’ fees in the amount of $8,190.

Father appeals. 1

Child Support

In his first point on appeal, Father argues that the trial court’s order modifying child support was against the weight of the evidence and an abuse of discretion.

Murphy v. Carron governs our review of a child support modification order. 536 S.W.2d 30 (Mo. banc 1976). We must affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously applies or declares the law. Id. at 32. We defer to the trial court’s credibility determinations and view the evidence in the light most favorable to the judgment. Searcy v. Searcy, 85 S.W.3d 95, 99 (Mo.App.2002).

In calculating child support in any proceeding, including a modification proceeding, section 452.340.8 and Rule 88.01 require the trial court to follow a two-step procedure. Conrad v. Conrad, 76 S.W.3d 305, 308 (Mo.App.2002). First, the trial court must determine and find for the record the presumed child support amount pursuant to Form 14. Id. Second, the court, after considering all relevant factors, must determine whether to rebut that amount as being unjust or inappropriate. Id. Here, the trial court found the presumed child support amount to be $1,047 and refused to rebut this amount.

Child support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms of the original award unreasonable. § 452.370.1, RSMo 2000. Here, the trial court found such changed eircum-stances — i.e., Father’s income had increased, Mother’s income had decreased, and the children’s expenses had increased. Accordingly, the trial court increased Father’s child support payments from $750 per month to $1,047 per month.

Father alleges four sub-points to support his contention that the court erred in its modification of child support.

First, Father argues that in its Form 14 calculation, the court failed to impute income to Mother commensurate with her job skills.

Mother has worked for the Kansas City Star since 1980. In 2001, she earned about $70,000 year while fulfilling three separate positions — editorial board member, op-ed editor, and columnist. However, in September 2002, she became a part-time employee, retaining only the columnist position. Mother testified that this was an involuntary change, caused by a change in management. As a result, her income decreased to around $32,000 per year. Mother included this figure on her second Form 14, which the court adopted.

In light of her twenty years of writing experience and her $70,000 salary before September 2002, Father argues that Mother is currently “underemployed.” According to Father, if Mother uses her best efforts, she could obtain a job in the same field with a $70,000 salary. Mother testified that in order to obtain a full-time position commensurate with her prior position, she would need to move from the Kansas City area- However, she was unwilling to “uproot” the children. The court found that the reduction in income was beyond her control and, thus, did not impute income to her.

*427 In calculating child support, the trial court has discretion to impute income to an underemployed parent. Rivers v. Rivers, 21 S.W.3d 117, 124 (Mo.App.2000). Under proper circumstances, the trial court may impute income to a parent based on what that parent could earn through his or her best efforts to gain employment proportionate to his or her capabilities. Burton v. Donahue, 69 S.W.3d 76, 79 (Mo.App.2001). What constitutes proper circumstances depends upon the facts and must be determined on a case-by-case basis. Id.

Here, Mother did not voluntarily reduce her income. Her testimony that the change to part-time employment was the result of new management was uncontro-verted. Nor is there any evidence that Mother’s failure to obtain a higher-paying job was an attempt to evade her duty to support her children.

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Bluebook (online)
146 S.W.3d 422, 2004 Mo. App. LEXIS 1488, 2004 WL 2339830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lokeman-v-flattery-moctapp-2004.