Mudd v. Mudd

859 S.W.2d 699, 1993 Mo. App. LEXIS 198, 1993 WL 27864
CourtMissouri Court of Appeals
DecidedFebruary 9, 1993
DocketNo. 61433
StatusPublished
Cited by6 cases

This text of 859 S.W.2d 699 (Mudd v. Mudd) 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
Mudd v. Mudd, 859 S.W.2d 699, 1993 Mo. App. LEXIS 198, 1993 WL 27864 (Mo. Ct. App. 1993).

Opinion

AHRENS, Presiding Judge.

In this action to modify child support obligations, James T. Mudd (father), appeals from the trial court’s order modifying the decree of dissolution. We affirm.

The parties’ marriage was dissolved January 8, 1985. Nancy E. Mudd (mother) filed a motion to modify the dissolution decree on April 16, 1988. Father subsequently filed a counter-motion to modify that decree. On October 15, 1991, following a hearing on the parties’ motions, the trial court entered an order modifying the dissolution decree.

The trial court calculated father’s child support obligation pursuant to Form 14. As modified, father’s monthly child support obligation for the two children in mother’s custody, Jennifer and Kelly, increased from $374.84 per child to $643.25 per child. Further, the trial court ordered father to pay 83% of Kelly’s orthodontic expenses which are incurred after March 20, 1991, and which are not covered by insurance. The trial court also ordered father to pay 83% of Kelly’s post-high school educational expenses.

In his first point, father alleges the trial court’s awards of child support, orthodontic expenses, and college expenses are excessive and an abuse of discretion. Father attacks the awards in five subpoints, designated (A) through (E).

In subpoint (A), father contends the trial court erroneously based its awards on its finding that 55% “is a reasonable and credible percentage of gross receipts for [father] to realize from his sole proprietorship[.]” Father asserts this finding was not supported by any evidence, “ignores the formula for gross income provided by Form 14[,] and is clearly excessive and unjust.”

Our review of an order modifying child support obligations is limited to determining whether the order is supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Laws v. Laws, 796 S.W.2d 439, 440 (Mo.App.1990). Moreover, we defer to the trial court’s determinations of credibility. Boudreau v. Benitz, 827 S.W.2d 732, 733 (Mo.App.1992). We view “the evidence and permissible inferences therefrom in the light most favorable to the trial court’s order” and disregard “all contrary evidence and inferences.” Id.

Father, a certified public accountant, has been a sole practitioner in Troy, Missouri, since 1978. Father testified he has realized the following gross and net business receipts.

YEAR GROSS NET
1988 $233,181 $72,564
1989 $176,952 $30,020
1990 $204,092 $34,000

Based on these figures, father argues his gross income from his practice represented only 17% to 31% of gross receipts. Father asserts the trial court ignored these percentages as well as his testimony that according to national statistics it is not unusual for CPA offices the size of his to net approximately one-third of gross receipts.

As a sole practitioner, father’s gross income for purposes of Form 14 is defined as “gross receipts minus ordinary and necessary expenses required to produce income.” MO.CIV.P. FORM 14, Directions for Use. Father acknowledges that in determining gross income pursuant to Form 14, the trial court was permitted to “exclude from ordinary and necessary expenses amounts for [701]*701depreciation expenses, investments tax credits and other noncash reductions of gross receipts.” MO.CIY.P. FORM 14, Directions for Use. However, father contends that if depreciation is excluded from expenses, his gross income for 1988-1990 was only 24% to 34% of gross receipts.

The trial court was in a better position to judge the credibility of father’s testimony, as well as that of father’s office manager regarding the ordinary and necessary business expenses father’s business has incurred. We defer to that determination of credibility. Boudreau, 827 S.W.2d at 733. Further, nothing in the record indicates the trial court failed to consider father’s testimony regarding national statistics of net business receipts realized by other CPA offices. Rather, the trial court was entitled to determine what weight, if any, to afford that testimony. We find no error in the trial court’s computation of father’s income. Accordingly, subpoint (A) is denied.

We preface our review of subpoints (B), (C), (D) and (E) by noting that Rule 88.01 requires both parties to complete Form 14. “On appeal, a party who wishes to challenge the child support award on the basis that it does not conform to the requirements of Rule 88.01 may include in the legal file copies of Civil Procedure Form No. 14 that were before the trial court.” Ibrahim v. Ibrahim, 825 S.W.2d 391, 398 (Mo.App.1992). Although father filed a proposed order which purported to follow “the Supreme Court guidelines as to child support,” father did not include a completed Form 14 in the legal file.

In Ibrahim, decided after the hearing on the motions to modify in the present case, the southern district of this court held a father’s failure to show he submitted a completed Form 14 was “akin to pursuing a different theory for recovery on appeal than was pursued at trial.” Id. Accordingly, the southern district declined to convict the trial court of error on an issue not before that lower court. Id. In Boudreau, 827 S.W.2d 732, we cited Ibrahim and warned, “[a]n appellant seeking relief from a child support award without including [a completed Form 14] is doing so at his or her peril.” Id. at 737 n. 15. We reiterate that warning. However, we will review father’s claims of error in subpoints (B), (C), (D) and (E) on the merits.

Under subpoint (B) father asserts the trial court erred in calculating father’s child support obligation pursuant to Form 14, in that the trial court improperly ignored the split custody issue and failed to consider all the needs of Daniel, the parties’ nineteen year-old child who is in father’s custody. Father argues the trial court should have calculated the child support award using the column for three children, rather than using the column for two children.

As noted, father filed a counter-motion to modify. That counter-motion requested, inter alia, an order requiring mother to contribute to the support of Daniel. Father testified that since entry of the original decree he paid Daniel’s orthodontic bill of $2,200.00. Father conceded that mother may have paid a portion of that bill. He also testified that Daniel was living with him, and that he would continue to provide financial support when Daniel returned to college. At father’s request, the trial court took judicial notice of father’s income and expense statement itemizing Daniel’s monthly living expenses which totaled $474.00.

In its order, the trial court found father “failed to present any evidence of the cost of his support of Daniel W. Mudd or any evidence of any changed circumstances regarding the cost of his support of said child pursuant to Section 452.370(1) and (2) R.S.Mo. to justify the Court’s granting his Counter-Motion to Modify or for the Court to knowledgeably enter an order of child support for the child.”

Father, relying on Boudreau,

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Bluebook (online)
859 S.W.2d 699, 1993 Mo. App. LEXIS 198, 1993 WL 27864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mudd-v-mudd-moctapp-1993.