McKenna v. McKenna

928 S.W.2d 910, 1996 Mo. App. LEXIS 1572, 1996 WL 523587
CourtMissouri Court of Appeals
DecidedSeptember 17, 1996
DocketNo. 68796
StatusPublished
Cited by7 cases

This text of 928 S.W.2d 910 (McKenna v. McKenna) 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
McKenna v. McKenna, 928 S.W.2d 910, 1996 Mo. App. LEXIS 1572, 1996 WL 523587 (Mo. Ct. App. 1996).

Opinion

SIMON, Judge.

Michael J. McKenna (Father) appeals a judgment of the trial court modifying the decree of dissolution in favor of Bonnie J. McKenna (Mother).

On appeal, Father contends that the trial court erred in: (1) excluding from evidence a chart containing information about his income, which was prepared by his accountant; (2) figuring Father’s gross income without subtracting his business expenses; and (3) including medical and educational expenses in the calculation of child support. We affirm the judgment as modified.

We affirm the trial court’s judgment 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. Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo.banc 1976). Further, as a trier of fact, it is the function, indeed the duty, of the trial court to decide the weight and value to be given to the testimony of any witness. Wynn v. Wynn, 738 S.W.2d 915, 918[1] (Mo.App.1987). On appeal, we view the evidence in a manner favorable to the judgment and disregard contrary evidence. Id. We defer to the trial court even if the evidence could support a different conclusion. Id.

The record reveals that the marriage of Father and Mother was dissolved by a Decree of Dissolution (Decree) on September 12, 1989. Custody of the couple’s two children, Lauren Jeanne (Daughter) and Michael J. Jr. (Son) was awarded to Mother. Father was ordered to pay $350.00 per month in child support for both children. Additionally, the Separation Agreement, which was incorporated into the Decree, obligated Father to maintain medical, hospitalization, and dental insurance on both children (Insurance Expenses) and pay one-half of all medical expenses not covered by insurance (Extraordinary Medical Expenses), one-half of private high school tuition and $100.00 per month for parochial school tuition for both children (Educational Expenses).

On October 16,1991, by an Order of Modification, custody of Son was awarded to Father. Child support was reduced to $160.00 per month for Daughter, and support was eliminated for Son. Additionally, all terms of the Decree regarding the Insurance, Extraordinary Medical and Educational Expenses were left intact. On August 15,1994, Mother filed a Motion to Modify, requesting primary custody of Son be returned to her and that the child support be modified to include him. Father filed a cross-motion to Modify, requesting termination of child support or conditioning of any support upon the exercise of reasonable rights of custody. Subsequently, the trial court, upon agreement of both parties, issued an order awarding Mother primary physical and legal custody of Son, leaving open the issues as to child support and visitation.

At trial, Father’s and Mother’s tax forms were introduced to provide evidence of each party’s gross income. Father also attempted to introduce an exhibit into evidence, which was a chart containing information about his [912]*912income. The chart, prepared by his accountant and dated March 21, 1995, listed Father’s adjusted gross income for the past four years and then calculated his “net income” for these years by subtracting his business expenses from his gross income. Father never called his accountant to testify, and during his testimony, he was unable to explain the accounting and tax principles used to prepare the exhibit. The court ruled that the exhibit was inadmissible hearsay.

During Father’s cross-examination, Mother’s attorney attempted to elicit testimony regarding her payment of Extraordinary Medical and Educational Expenses. The court sustained Father’s objection to this evidence, stating that a mechanism was already in place for these expenses and that Mother had not requested a modification of them in her petition. Subsequently, the court sustained Father’s objections to Mother’s testimony regarding her payments for Insurance, Extraordinary Medical and Educational Expenses.

Finally, when Mother submitted three Form 14s, the court again sustained Father’s objection to the inclusion of amounts for Insurance, Extraordinary Medical and Educational Expenses in these forms. Mother’s attorney stated that the Form 14s calculated Father’s gross income by calculating a four year average of Father’s gross income as listed on his 1991-1994 tax forms. The court issued its judgment modifying the Decree, denying Father temporary custody and visitation rights and ordered him to pay $833.00 per month in child support. The court did not make explicit findings of fact or conclusions of law with respect to the child support amounts. Additionally, it included one of Mother’s Form 14s, which listed Father’s gross income of $2,510.00 (line 1), $107.00 for Health Insurance Expenses (line 4c), $270.00 for Extraordinary Medical Expenses (line 4d) and $152.00 for Educational Expenses (line 4e).

Father filed a motion for new trial or alternatively, to amend or modify the judgment, arguing, in pertinent part, that the trial court erred by including in its Form 14 the amounts for Insurance, Extraordinary Medical and Educational Expenses, and by computing his gross income without deducting his ordinary and necessary expenses required to produce his income. On June 29, 1995, the court issued its order, which stating “the judgment shall be modified to provide that respondent is hereafter relieved of his obligation to provide medical and or dental insurance for the minor children ...” This appeal followed.

In his first point, Father alleges the trial court erred in excluding his exhibit as hearsay because the report was merely a graphic compilation and summary of data.

An unsworn ex parte written report introduced to prove the truth of the matter it asserts is hearsay. Niederkorn v. Niederkorn, 616 S.W.2d 529, 535[9] (Mo.App. E.D. 1981). The principal objection to hearsay is the inability of the other party to cross-examine the person to whom the hearsay statement is attributed. Cruce v. Auto-Owners Mutual Ins. Co., 851 S.W.2d 10, 12[1] (Mo.App. W.D.1993).

Here, Father’s excluded evidence was a chart, prepared by his accountant, containing information about his income, expenses and conclusions drawn from that information. It was offered for the truth of the matter asserted — proposing gross income figures for the court to adopt. Since the accountant did not testify, Mother’s attorney did not have the opportunity to cross-examine the accountant regarding the conclusions in the report.

Father argues the report was admissible because it was merely a graphic compilation and summary of data, relying on Kimberlin v. C.M. Brown and Associates, 722 S.W.2d 90, 91 (Mo.App.1986). Father’s reliance on Kimberlin is misplaced. Kimberlin involved summaries of computer printouts, which were admitted under § 490.680 R.S.Mo., the business record exception to hearsay. Here, the report was not a business record of appellant, nor did he make any contention that it qualified for admission as a business record.

Father also argues that the chart is admissible because Father had personal knowledge about the contents of the report, citing

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Bluebook (online)
928 S.W.2d 910, 1996 Mo. App. LEXIS 1572, 1996 WL 523587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckenna-v-mckenna-moctapp-1996.