Morgan v. McBee

174 S.W.3d 640, 2005 Mo. App. LEXIS 1262, 2005 WL 2072154
CourtMissouri Court of Appeals
DecidedAugust 30, 2005
DocketWD 64297
StatusPublished
Cited by4 cases

This text of 174 S.W.3d 640 (Morgan v. McBee) 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
Morgan v. McBee, 174 S.W.3d 640, 2005 Mo. App. LEXIS 1262, 2005 WL 2072154 (Mo. Ct. App. 2005).

Opinion

PAUL M. SPINDEN, Judge.

Sherri Morgan appeals the circuit court’s judgment ordering Kevin L. McBee to pay her $13,150 for child support ar-rearages. Morgan asserts that the circuit court erred in calculating the amount of child support arrearages, in refusing to award statutory interest, and in refusing to award her attorney’s fees. We affirm in part and reverse and remand in part.

The evidence established that the circuit court dissolved Morgan’s marriage to McBee on January 25, 1991, and ordered McBee to pay child support of $350 per month, beginning on January 25, 1991, for the parties’ one child.

On January 29, 2004, McBee filed a motion asking the circuit court to determine his child support arrearages. He alleged that the amount that the Division of Child Support Enforcement claimed that he owed, $36,925, was inaccurate. Morgan filed an answer to McBee’s motion and also filed an execution/garnishment application and order. In response to Morgan’s garnishment application, McBee filed a motion to quash.

On March 8, 2004, the circuit court held a hearing on Morgan’s garnishment application. At the hearing, McBee requested that the circuit court admit into evidence Morgan’s 1998 Notice of Income Withholding and Affidavit of Noncompliance with Child Support Order. The circuit court admitted these documents into evidence with no objection from Morgan. Both of these documents, executed by Morgan, stated that the total of child support ar-rearages as of September 16, 1998, 1 was $4200. After the hearing, the circuit court granted McBee’s motion to quash Morgan’s garnishment application pending the circuit court’s determination on McBee’s motion to determine child support arrear-ages.

On April 26, 2004, the circuit court held a hearing to receive additional evidence on the amount of arrearages owed by McBee. After the hearing, the circuit court found:

[A]s of September 16, 1998, [McBee] was in arrears on child support payment in amount of $4,200; that since that date and through January 2004, current child support accrued in amount of $22,750; that since September 16, 1998[, McBee] has paid child support in amount of $13,800; and that [McBee’s] arrearages as of January 31, 2004[,] was $13,150.

The circuit court also ordered each party to pay his or her own attorney fees and did not award any statutory interest to Morgan. Morgan appeals.

In her first point, Morgan asserts that the circuit court erred in calculating the amount of child support arrearages owed by McBee. In particular, she contests the circuit court’s determination that, as of September 16, 1998, McBee’s child support arrearages was only $4200. 2 Morgan contends that the circuit court erroneously relied on her 1998 Notice of Income Withholding and Affidavit of Noncompliance with Child Support Order as evidence of the arrearages. We disagree.

*643 We must affirm the circuit court’s judgment unless it is not supported by substantial evidence, is against the weight of evidence, erroneously declares the law, or erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Moreover, we must make any decision to reverse a judgment because it is against the weight of the evidence with caution and with a firm belief that the judgment is wrong. Id. The fact-finder is free to reject any part of a witness’ testimony. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989). We, therefore, accept as true the evidence and inferences therefrom which are favorable to the circuit court’s judgment, and we disregard all contrary evidence. Id.

Morgan claims that the circuit court erred in relying on the 1998 Notice of Income Withholding to determine the amount of arrearages as of September 16, 1998, because at the hearing she explained that “she used [the $4200] amount in 1998 as a minimum sum of an actual amount owed for a specific period (one year) at a time when she had not determined the total arrearage.” At the hearing, Morgan presented evidence that McBee’s child support arrearages as of September 1998 was $27,125.

At that same hearing, however, Morgan conceded that she signed and filed the 1998 Notice of Income Withholding with the court on September 16, 1998, and that she listed McBee’s total child support ar-rearages as $4200. She also acknowledged that attached to the Notice of Income Withholding was an Affidavit of Noncompliance with Child Support Order, which she signed before a notary. The affidavit said that McBee’s child support arrearages as of September 29, 1998, was $4200. Morgan said that she put $4200 on these forms because “[t]hat was what [she] knew.”

Morgan asserts, however, that the circuit court should not have relied on the Notice of Income Withholding and the Affidavit of Noncompliance with Child Support Order as evidence of McBee’s arrear-ages as of September 1998, because the circuit court was required to determine how much child support McBee actually paid. Morgan’s contention is without merit.

Morgan’s Notice of Income Withholding and supporting affidavit were prior inconsistent statements. As such, these statements were admissible for impeachment purposes and were substantive evidence upon which the circuit court was entitled to rely. Rowe v. Farmers Insurance Company, Inc., 699 S.W.2d 423, 428 (Mo. banc 1985); Foster v. Catalina Industries, Inc., 55 S.W.3d 385, 393 (Mo.App.2001). Although Morgan attempted to offer an explanation and other evidence as to why the amount of child support arrearages was different in the Notice of Income Withholding and the affidavit from the amount she now claims was due, the circuit court was free to disbelieve her.

Morgan relies on Boyer v. State of Missouri ex rel. Stuerke, 851 S.W.2d 802 (Mo.App.1993), in support of her contention that arrearage affidavits are not binding on a party. In Boyer, a deputy court administrator stated in two different affidavits, one in 1985 and one in 1986, the amount of a father’s child support arrear-ages due to the court. The Boyer court concluded:

[Father] fail[ed] to provide any authority for his position that the state is bound by the 1986 affidavit of arrearage. He also fail[ed] to explain why the state would be bound by one affidavit and not an earlier affidavit, which stated that [he] owed $16,785 in back support. Furthermore, it was apparent from [the father’s] own records, which he offered at *644 the hearing before the hearing officer, that the 1986 affidavit of arrearage was grossly inaccurate.

Id. at 804.

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Bluebook (online)
174 S.W.3d 640, 2005 Mo. App. LEXIS 1262, 2005 WL 2072154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morgan-v-mcbee-moctapp-2005.