MARK ALAN CLIPPARD v. CATHERINE SUE CLIPPARD

• Court: Missouri Court of Appeals
• Decided: March 25, 2022
• Docket: SD37050
• Status: Published

Opinion

Missouri Court of Appeals Southern District Division Two

MARK ALAN CLIPPARD, ) ) Respondent, ) ) No. SD37050 vs. ) ) FILED: March 25, 2022 CATHERINE SUE CLIPPARD, ) ) Appellant. )

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

Honorable Jerry A. Harmison, Jr., Judge

AFFIRMED IN PART, REVERSED AND REMANDED WITH DIRECTIONS IN PART

Catherine Sue Clippard (“Mother”) appeals the circuit court’s judgment modifying child

support orders that arose out of a decree dissolving her marriage to Mark Alan Clippard

(“Father”). Among her contentions, Mother makes two meritorious arguments concerning the

circuit court’s (1) failure to make a statutorily required finding in determining child support and

(2) failure to divide education costs in accordance with the parties’ parenting plan. We reverse

the circuit court’s judgment in those respects, do not reach the remaining arguments in Mother’s

points, affirm the judgment in all other respects and remand the case to the circuit court with

directions.

1 Factual and Procedural Background

The judgment dissolving the parties’ marriage was entered on August 27, 2003 (the

“dissolution judgment”). Two children were born of that marriage: Martha (“Daughter”), born

on September 10, 1991, and Luke (“Son”), born on December 22, 1997. No party contests the

following relevant facts: (1) Daughter is physically or mentally incapacitated from supporting

herself, insolvent, and unmarried, see section 452.340.4, 1 and is receiving residential care and

support from the Nova Center; and (2) Son became emancipated upon turning 21 on December

22, 2018.

The dissolution judgment incorporated an agreed upon parenting plan as part of a marital

settlement agreement. In 2009, the amount of child support that Father was required to pay

Mother under the parenting plan was modified upward, but provisions of the original parenting

plan not addressed by the modification remained in effect. Only two requirements imposed by

the parenting plan and its 2009 modification are relevant to this appeal: (1) the requirement that

Father pay a total of $2,374 per month in child support with $1,700 going to the Family Support

Center as trustee for Mother and the remaining $674 going directly to Mother, provided that

Father would receive a dollar-for-dollar credit for Social Security benefits paid to Mother for the

support, care, and benefit of Daughter; and (2) the requirement that “Father and Mother shall

divide, on a pro-rata basis based on their adjusted gross income shown on their Form 1040, the

cost each year for [Son] to attend a post-secondary college, university, or vocational/technical

school, state or private,” subject to a list of enumerated limitations, none of which are relevant.

In February and March of 2019, the parties, each alleging substantial and continuing

changes in circumstances, filed competing motions to modify their child support obligations.

1 All statutory references are to RSMo 2016.

2 After a trial in September 2020, the circuit court entered a judgment of modification. That

judgment (1) reduced Father’s child support obligation to $300 per month, retroactive to April 1,

2019, for the care and support of Daughter; and (2) required Mother to reimburse Father

$5,823.98 for college expenses incurred by Son. A post-judgment motion, filed by Mother and

raising all relevant issues, was thereafter denied.

Mother timely appeals, raising two points relied on.

Standard of Review

“Our standard of review in a dissolution action is governed, as in any court-tried case, by

the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).” Schollmeyer

v. Schollmeyer, 393 S.W.3d 120, 122 (Mo.App. 2013). “We will affirm the decree of

dissolution unless it is not supported by substantial evidence, it is against the weight of the

evidence, or it erroneously declares or applies the law.” Barth v. Barth, 372 S.W.3d 496, 503

(Mo.App. 2012). All of Mother’s points allege that the circuit court “misapplied the law[.]” “If

the issue is one of law, this Court reviews de novo to see if the circuit court misapplied the law.”

JAS Apartments, Inc. v. Naji, 354 S.W.3d 175, 182 (Mo. banc 2011).

Discussion 2

Point 1 – Child Support Modification Omitted Statutorily Required Finding

In her first point, Mother contends:

The trial court erred in reducing [Father]’s child support obligation to $300.00 per month in the judgment, because the trial court misapplied the law in deviating from the form 14 calculation of presumed correct child support amount, in that, the trial court (1) failed to make the statutorily required finding that the presumed correct child support amount is unjust or inappropriate, and (2) erroneously gave [Father] credit for governmental benefits received by the child[.]

2 Both of Mother’s points are multifarious in violation of Rule 84.04(d) in that they contain more than a single legal reason for Mother’s claims of reversible error. However, all of Mother’s arguments are separately addressed, and Father does not raise any objection to the format of those arguments. Therefore, we exercise our discretion to review Mother’s points ex gratia.

3 Mother’s first argument is correct and, therefore, we need not reach the second.

In determining child support, the circuit court is required to follow a two-step procedure.

Sullins v. Sullins, 417 S.W.3d 878, 881 (Mo.App. 2014); accord section 452.340.9; Rule 88.01. 3

“First, the trial court is required to calculate the child support amount pursuant to Civil Procedure

Form 14 (“Form 14”), either by accepting one of the parent’s Form 14 calculations or by

performing its own Form 14 calculation.” Sullins, 417 S.W.3d at 881. “Second, the trial court

considers whether the presumed Form 14 amount is ‘unjust or inappropriate’ after considering

all relevant factors.” Id. (emphasis added). Regarding the second step, “[a] written finding or

specific finding on the record . . . that the application of the guidelines would be unjust or

inappropriate in a particular case, after considering all relevant factors … shall be required and

shall be sufficient to rebut the presumption in the case.” Section 452.340.9 (emphasis added).

Father suggests that the circuit court satisfied these requirements and, in support of his

argument, points to paragraphs 15 through 18 of the circuit court’s judgment. Those paragraphs,

in toto, state as follows:

15. That [Daughter] still receives the Social Security benefit of approximately $783.00 per month. In addition, Medicaid reimburses the balance of the Nova Center’s cost in an amount of over $8,200.00 per month, in other words, all of [Daugther]’s [sic] are paid in full by Social Security and Medicaid.

16. Even though [Daughter] has been in residential care since October 01, 2018 Father has remained consistent in payment of $1,700.00 in Child Support to the Mother. Both parties still have expenses at their respective homes over and above the cost of the Nova Center.

17. Both parties have filed Motions to Modify seeking the Court to recalculate child support. The Father asserts he should owe no child support since all of the child’s expenses are paid in full by Social Security and Medicaid. Mother asserts that Father should still pay child support because she still has expenses for the child. The Court finds from the evidence presented that both parents

3 All rule references are to Missouri Court Rules (2021).

4 still support the minor child by purchasing clothes, meals and providing weekend accommodations for the child.

18. The Court finds that the presumed amount of child support pursuant to a new Form 14 calculation is as set out in [Mother]’s Exhibit 101 in the amount of $1,916.00 per month. This amount of support does not take into account the Social Security Disability payments received by [Daughter] nor does it take into account the Medicaid payments made to the Nova Center and the Court therefore deviates downward to the amount of $300.00 per month. This amount of support will allow Mother to continue to provide various clothing, food and to help provide a place for overnight visitation. The Court notes Mother has income pursuant to her Form 14 of over $4,300.00 per month. The support she’s been receiving from Father since [Daughter] entered the Nova Center has been a windfall to the Mother. In fact, she testified that she was using that child support money to pay for her attorney fees in this action.

Paragraphs 15 through 18 reveal that the circuit court satisfied the first required step—it

accepted Mother’s Form 14 calculation as the presumed child support amount. The circuit court

then rejected this amount, stating that it did not “take into account” Social Security Disability or

Medicaid payments to Daughter and the Nova Center. In that rejection, however, the circuit

court made no finding addressing the second required step—that the presumed child support

amount is “unjust or inappropriate” as is required to rebut the presumption. See Sullins, 417

S.W.3d at 881; section 452.340.9; Rule 88.01.

Generally, “[w]here the trial court enters an award of child support which varies from the

amount calculated pursuant to Form 14, and fails to make a finding that the amount so

calculated, after consideration of all relevant factors, is unjust or inappropriate, such failure is

error which requires reversal and remand.” Myers-Geiger by Myers v. Geiger, 878 S.W.2d 925,

927 (Mo.App. 1994). Father presents us with no argument directly addressing the circuit court’s

material omission or any authority suggesting that reversal and remand is not required in this

case.

Accordingly, to the extent that Mother’s first point claims that the circuit court erred in

deviating from the presumed Form 14 amount without first finding that the amount was unjust or

5 inappropriate, it has merit and is granted. As such, having granted point 1, we need not review

or address Mother’s remaining argument—alleging that the circuit court “erroneously gave

[Father] credit for governmental benefits received by the child”—because this argument contains

an alternative ground for relief that may become moot following remand. See O’Hare v.

Permenter, 113 S.W.3d 287, 289 n.2 (Mo.App. 2003) (“Issues that are not essential to a

disposition of the case should not be addressed.” (Internal quotation marks and citation

omitted)).

Point 2 – Reimbursement Amount for College Expenses was Miscalculated

In her second point, Mother contends:

The trial court erred in ordering [Mother] to reimburse [Father] $5,823.98 for [Son]’s education expenses in its judgment, because the trial court misapplied the law, in that, (1) the education expense provision of the parenting plan is too amorphous, indefinite, vague, and uncertain to be enforced, and (2) the trial court failed to make requested findings necessary to determine whether calculation of the amounts due involved ministerial computation or discretion, materially affecting the action and impeding appellate review[.]

Mother’s arguments, as phrased in her point relied on, are incorrect. However, we determine

that the circuit court erred for reasons that Mother expressly identifies in her discussion of her

second argument.

The Education Expense Provision of the Parenting Plan is Not Too Amorphous, Indefinite, Vague, and Uncertain to be Enforced

The “education expense provision” of the parenting plan requires that “Father and Mother

shall divide, on a pro-rata basis based on their adjusted gross income shown on their Form 1040,

the cost each year for [Son] to attend a post-secondary college, university, or

vocational/technical school, state or private . . . .”

In challenging this provision, Mother cites and relies on Echele v. Echele, 782 S.W.2d

430, 436 (Mo.App. 1989) (abrogated on other grounds by Rallo v. Rallo, 477 S.W.3d 29

6 (Mo.App. 2015)), for the proposition that if a divorce decree “is so amorphous, indefinite, vague

and uncertain that it requires a subsequent hearing to determine its meaning and which involves

discretion, the decree is void and unenforceable.” Such is the case here, Mother contends,

because “the Parenting Plan does not provide whether the Form 1040s to be used were for the

school year of the educational expenses, the calendar year in which the educational expenses

were paid, or the year of the Divorce Decree.” She then directs us to instances in the trial

transcript where both she and Father expressed confusion as to what the challenged provision

actually requires.

However, “[i]n interpreting a separation agreement incorporated into a decree, the normal

rules of contract construction apply.” Harvey v. Harvey, 325 S.W.3d 495, 498 (Mo.App. 2010).

Thus, “[w]hen the language of a provision is in dispute, the court must determine the parties’

intent as manifested in the document itself and not by what the parties say they intended.” Id.

“This is done by giving the words of the agreement their plain and ordinary meaning as

understood by a reasonable and average person.” Id.

Here, a reasonable and average person would know that “Form 1040” within the phrase,

“Father and Mother shall divide, on a pro-rata basis based on their adjusted gross income shown

on their Form 1040,” is the form that is filed as part of an individual federal tax return for any

given calendar year. The phrase that follows contains the object of the parties’ division—“the

cost each year for [Son] to attend a post-secondary college, university, or vocational/technical

school, state or private.” (Emphasis added.) When these two phrases are read together,

therefore, a reasonable and average person would understand that the calendar year of the Form

1040s used in the pro-rata division calculation must correspond with the “year” giving rise to a

cost subject to such division. In other words, the parties’ 2016 Form 1040s should be used for

7 Son’s 2016 calendar year educational costs, their 2017 Form 1040s should be used for 2017

calendar year costs, and so on in that manner.

In sum, the education expense provision is not too amorphous, indefinite, vague, and

uncertain to be enforced and, accordingly, Mother’s first argument fails.

The Circuit Court’s Calculation Misapplied the Law as to Education Costs in 2018

Mother next identifies three requests for “findings” that she proffered in a pretrial motion

regarding the education expense provision. Under Rule 73.01(c), “[t]he court may, or if

requested by a party shall, include in the opinion findings on the controverted material fact issues

specified by the party.” The requests in question, which she alleges that the circuit court failed

to address in its judgment, state as follows:

6. If the Court determines that Mother owed a pro-rata share of [Son]’s college expenses, how did the Court determine that share and what year’s adjusted gross income did the Court use to determine Mother’s obligation for each semester?

7. Did the parenting plan adopted in the original judgment for divorce entered herein in 2003 specify how to determine which year’s adjusted gross income as shown on their Form 1040 would be used to determine their pro-rata share of college expenses for [Son]?

8. Was the provision for pro-rata allocation of college expenses capable of determination with a ministerial calculation, or was it necessary for the Court to interpret the meaning of the provision[?]

This argument misses the mark. None of the three aforementioned requests call for any

“findings” of fact; rather, they call for conclusions of law in that they seek the interpretation of

some aspect of the education expense provision. Our discussion of Mother’s previous argument,

supra, however, addresses and resolves these issues. Therefore, assuming without deciding that

the circuit court failed in some manner to interpret the education expense provision, the failure to

do so is moot and does not materially impair our review. “Where the failure to make findings of

8 fact and conclusions of law does not materially impair our ability to review the trial court’s

order, such failure is not reversible error.” Darr v. Darr, 950 S.W.2d 867, 871 (Mo.App. 1997).

This holding, however, does not end our inquiry. As part of her discussion, Mother

further identifies, correctly, that there is an inconsistency in the manner that the circuit court

calculated the division of Son’s education costs. As relevant here, paragraph 12 of the circuit

court’s judgment, in toto, states as follows:

12. Both parties pursuant to the original judgment and the last judgment of modification owed college expenses for [Son] up thru and including the fall semester of 2018. That Father sent multiple demand letters to Mother requesting reimbursement of college expenses which were paid 100% by the Father. The Mother has refused to reimburse Father said college expenses claiming that the underlying parenting plan was unclear and un-enforceable. The Court finds that the parenting plan is capable of enforcement and should be calculated by the parties[’] prorata incomes each year that [Son] was in college. The Court finds that the calculations set forth in [Father]’s exhibits 119 and 120 are determinative on this issue and that Mother owes Father $5,823.98 for her share of [Son]’s total college expenses from the fall of 2016 thru the fall of 2018.

In concluding that exhibits 119 and 120 are “determinative” of the amount Mother is

required to reimburse Father, the circuit court misapplied the law. To reach the $5,823.98

reimbursement figure cited and relied on by the circuit court in its judgment, these exhibits use

the parties’ 2016 income to calculate their pro-rata share of Son’s 2016 educational costs, their

2017 income to calculate their share of his 2017 costs, and their 2017 income (again) to calculate

their share of his 2018 costs. This latter calculation—using 2017 income to divide 2018 costs—

misapplied the law in that it violates the requirement, as explained supra, that the calendar year

of the parties’ income, reflected by their Form 1040s, must correspond with the year giving rise

to the education costs subject to division.

9 Accordingly, to the extent that Mother argues that the use of the parties’ 2017 income to

divide Son’s 2018 educational costs violates the education expense provision, Mother’s second

point has merit and is granted.

Decision

For the above reasons, the child support award and the amount of the education expenses

ordered to be paid by Mother in the circuit court’s judgment are reversed and the case is

remanded to the circuit court with directions to: (1) take whatever action it deems necessary and

appropriate to determine whether the Form 14 presumed correct amount of child support is

unjust and inappropriate and then, based upon that determination, to proceed accordingly to enter

judgment on the parties’ child support claims, which judgment shall include all statutorily

required findings, if any, and (2) recalculate Mother’s share of Son’s 2018 educational costs

using the parties’ 2018 Form 1040s and enter judgment accordingly. In all other respects, the

circuit court’s judgment is affirmed.

GARY W. LYNCH, C.J. – OPINION AUTHOR

MARY W. SHEFFIELD, P.J. – CONCURS

JENNIFER R. GROWCOCK, J. – CONCURS