Sherman v. Sherman

160 S.W.3d 381, 2004 Mo. App. LEXIS 1707, 2004 WL 2519237

• Court: Missouri Court of Appeals
• Decided: November 9, 2004
• Docket: WD 61208
• Status: Published

Opinions

VICTOR C. HOWARD, Judge.

Francis E. Sherman (Husband) appeals the judgment of the Circuit Court of Jackson County dissolving his marriage to the respondent, Janet A. Sherman (Wife), with respect to the court’s award of child support and division of property.

Husband raises three points on appeal. In Point I, he claims that the trial court erred in awarding Wife child support, as calculated pursuant to the court’s Form 14 worksheets, based, in part, on imputing gross monthly income to Husband of $1,000 for earnings from the family business, FNJ Maintenance Company (FNJ), because the imputation of income to Husband was not supported by substantial evidence. In Point II, Husband claims that the trial court erred in rebutting its presumed child support amounts (PCSAs) as being unjust and inappropriate for not being “sufficient to cover the reasonable needs of the children” and ordering him to pay $1,500 per month in child support because in doing so, the court failed to consider all relevant factors, as required by Rule 88.01.¹ In Point III, he claims that:

The trial court erred in the division of marital property because case law and § 452.330, R.S.Mo., 1998, holds that if the division of marital property is not fair it is an abuse of discretion such as in this case where the division is so heavily weighted in favor of respondent that it amounts to an abuse of discretion.

We affirm the trial court’s judgment in all respects except its award of child support, which, as explained below, is reversed and remanded for further consideration.

Facts

The parties were married on April 28, 1983, in Kansas City, Jackson County, Missouri. Two children were born of the marriage: Nicole Sherman, born on May 20, 1984; and Alicia Sherman, born on August 4, 1987. Husband filed a petition for dissolution of marriage in the Circuit Court of Jackson County on August 21, 2000. Wife filed an answer and counter-petition for legal separation on October 10, 2000. The petition and counter-petition were taken up and heard by the trial court on November 9 and December 7, 2001.

During the marriage, Husband was employed by Carondelet Health Center and its predecessors (Carondelet). At the time of trial his annual gross income was $76,646.38. Wife was also employed at Carondelet during the marriage as a labor and delivery room nurse. However, after being diagnosed with multiple sclerosis in April of 1997, she was forced to resign in September of that same year. At the time of trial, as a result of her condition, she was receiving Social Security disability benefits of $940 per month and social security benefits for the children of $480 per month.

During the marriage, the parties started a family business, FNJ, which provided contract maintenance services for businesses. There was considerable testimony at trial concerning the amount of income, if any, that was still being generated by FNJ. Husband testified that, although FNJ had been profitable in the past, it was no longer a viable concern, having lost its last maintenance contract. Wife contended that Husband, using his best efforts, was capable of earning income from FNJ of $769 per month and requested that the court impute this amount.

The trial court entered its judgment of dissolution on February 22, 2002, dissolving the parties’ marriage and awarding them joint legal and physical custody of the children. The trial court ordered Husband to pay Wife $1,500 per month in child support. In addition, Husband was ordered to pay 78% of all medical and dental expenses not reimbursed by insurance; to tithe a sufficient amount to cover Alicia’s tuition expense at St. Thomas More Grade School; and to pay 78% of all costs, including tuition, associated with Nicole’s attending Notre Dame de Sion High School. In dividing the parties’ property and debts, the trial court awarded Husband the condominium located in Marco Island, Florida, with the stipulation that it be sold and the first $150,000 in proceeds be paid to Wife. In its judgment, the trial court also awarded Wife $935 in monthly maintenance. With respect to its maintenance award, the trial court ordered that it was to continue until the $150,000 in condominium sale proceeds were paid, at which time the maintenance would automatically decrease to $185 per month.

With respect to child support, both parties submitted Form 14 worksheets as required, which the trial court rejected. The court prepared two Form 14s, using different maintenance credits for Husband, $985 and $185, based on the automatic reduction in maintenance that was ordered. In its Form 14s, the trial court imputed $1,000 in gross monthly income to Husband, which it found he was capable of earning from FNJ, which was awarded to him as marital property. Using the $935 maintenance credit, the trial court calculated the PCSA as being $1,003 per month, and using the $185 maintenance credit, it calculated the PCSA as being $1,102. The court then rebutted both amounts as being unjust and inappropriate, finding the correct amount of child support to be $1,500 per month.

This appeal follows.

Point I

In Point I, Husband claims that the trial court erred in awarding Wife child support, as calculated pursuant to the court’s own Form 14 worksheets, based, in part, on imputed gross monthly income to Husband of $1,000 for earnings from the family business, FNJ, because the imputation of income was not supported by substantial evidence. Specifically, he claims that the record did not support the imputation of income to him in that there was insufficient evidence from which the court could find that FNJ was, at the time of the hearing, a viable and profitable business from which Husband, exercising his best efforts, was capable of realizing income of, at least, $1,000 per month.

In calculating the PCSA, the trial court was required to determine each party’s gross monthly income. In that regard, the trial court found that Husband’s gross monthly income was $7,615 in both of its Form 14 worksheets, including $1,000 for the income the court found he was capable of earning from FNJ. However, as noted in the facts, Husband testified at trial that FNJ was defunct and had no income. He testified further that the company’s sole remaining service contract had been terminated as of June 30, 2001; that he had not sought any other contracts; and that he had no intention of continuing the business in that it was no longer viable as a profitable enterprise due to increased labor costs and competition, and because he was tired of the business. Although Wife only requested an imputation of income to Husband of $769 per month, which according to Wife’s testimony was based on Husband’s income from FNJ in 2000, the trial court, in calculating the PCSA, imputed income to him from FNJ of $1,000 per month. Husband claims that the evidence was insufficient to support this imputation of income.

It has long been recognized in the law that a parent will not be permitted to escape the responsibility to support the parent’s children by deliberately limiting his or her work to reduce income. Williams v. Williams, 55 S.W.3d 405, 414 (Mo.App. W.D.2001). To avoid such a situation, the trial court may impute income to the parent in determining the court’s child support award, based on what the parent could earn by using his or her best efforts. Id. This fact is reflected in the Form 14 calculation of the PCSA. In determining a parent’s gross monthly income, for purposes of Line 1, Form 14, income may be imputed “[i]f a parent is unemployed or found to be underemployed.” Civ. P. Form No. 14, DIRECTIONS, COMMENTS FOR USE AND EXAMPLES FOR COMPLETION OF FORM NO. 14, Line 1: Gross Income, Direction (emphasis added). As such, the imputation of income is appropriate not only where a parent voluntarily quits employment without justification to avoid paying child support, a case of unemployment, but also where he or she voluntarily reduces work without justification to avoid paying child support, a case of underemployment. Perkins v. Perkins, 21 S.W.3d 184,186 (Mo.App. S.D. 2000); Smith v. Smith, 969 S.W.2d 856, 858-59 (Mo.App. E.D.1998).

To impute income to a parent in determining an award of child support, there must be evidence in the record to support a finding that the parent has the capacity and opportunity to earn the income that is imputed. Monnig v. Monnig, 53 S.W.3d 241, 245 (Mo.App. W.D.2001). Thus, Civil Procedure Form No. 14, DIRECTIONS, COMMENTS FOR USE AND EXAMPLES FOR COMPLETION OF FORM NO. 14, Line 1: Gross Income, Comment H, provides:

When determining whether to include imputed income and, if so, the amount to include in a parent’s ‘gross income,’ a court or administrative agency shall consider all relevant factors, including:

(1)The parent’s probable earnings based on the parent’s work history during the three years, or such time period as may be appropriate, immediately before the beginning of the proceeding and during any other relevant time periods;

(2) The parent’s occupational qualifications;

(3) The parent’s employment potential;

(4) The available job opportunities in the community; and

(5) Whether the parent is custodian of a child whose condition or circumstances make it appropriate that the parent not be required to seek employment outside the home.

These factors are not all-inclusive or exhaustive, they are simply factors to be considered along with any other relevant factors in determining if and what amount to impute. The question then, in determining whether to impute income to a parent in calculating the Form 14 PCSA, is whether, applying all relevant factors, including those factors found in Comment H that are relevant, there is evidence to support a finding that the parent is deliberately limiting his or her work to reduce income to avoid paying child support. Davis v. Dep’t of Soc. Servs., Div. of Child Support Enforcement, 21 S.W.3d 140, 141 (Mo.App. W.D.2000).

Husband was employed and working full time for Carondelet Health Systems, earning an annual salary of $76,647. However, Wife contended at trial that Husband was underemployed in that although he claimed that FNJ was no longer in operation, based on past history, Husband, using his best efforts, was capable of earning $769 per month from the business, which Wife requested the trial court impute to Husband for purposes of child support. Wife also claimed FNJ was in fact still operating and earning money contrary to Husband’s denial. It is not possible to know whether the trial court imputed income to Husband because he voluntarily limited his income by causing the termination of the Carondelet contract, because he did not pursue other contracts, or merely because FNJ was an ongoing business that was generating income. The court simply found that “[h]e also runs a business, FNJ. He is capable of earning at least $1,000 per month in this business.” Hence, our analysis involves determining whether the evidence was sufficient to support the trial court’s finding that Husband, using his best efforts, could earn, at least, $1,000 per month from operating FNJ. We must do so in light of all relevant factors, including the factors of Comment H.

The record establishes that for several years prior to the filing of the dissolution proceeding, FNJ’s profitability was steadily declining. In that regard, FNJ’s tax returns for the five preceding years reflect that FNJ had taxable income of:

$52,127 in 1995;

$43,552 in 1996;

$30,731 in 1997;

$26,425 in 1998;

$9,206 in 1999; and,

$9,238 in 2000.

Wife’s request for imputation of income of $769 per month was based on FNJ’s income in 2000, while the trial court’s imputation of $1,000 per month was perhaps based on averaging FNJ’s income for three years prior to the dissolution proceeding commencing- — 1998,1999, and 2000 ($1,246.36 per month). Although the Form 14 imputation factors permit past earnings to be considered in determining whether the imputation of income is appropriate and in what amount, it is well settled that “[pjroof that a parent-has previously made more money ... is not alone a sufficient basis upon which to impute income at those levels.” Haden v. Riou, 37 S.W.3d 854, 861 (Mo.App. W.D.2001). There must also be evidence of available employment in the community for which the parent is not only qualified, but from which he could earn the amount sought to be imputed. Silverstein v. Silverstein, 943 S.W.2d 300, 302 (Mo.App. E.D.1997).,

For several years prior to the parties’ dissolution proceeding, FNJ only had one contract — a contract to clean the Caronde-let Health Campus, which consisted of the Carondelet Medical Building, St. Joseph Medical Mall, and St. Joseph Medical Building. The Carondelet service agreement was terminated effective June 30, 2001, pursuant to a letter of May 31, 2001, from Lioness Realty Group, Inc., (Lioness), which managed the Carondelet properties. That letter reads:

May 31, 2001

Mr. Frank Sherman

FNJ Maintenance Management, Inc.

10 East 127th Terrace

Re: Carondelet Medical Building, St. Joseph Medical Mall & St. Joseph Medical Building

Dear Frank:

Please let this letter serve as thirty (30) day notice that the janitorial service agreement with FNJ Maintenance Management, Inc. for the above referenced buildings will be terminated effective midnight, June 30, 2001.

We will be transitioning to a new janitorial service provider, which will begin July 1, 2001, and ask that you continue to provide service for the three medical buildings through the month of June. Frank, we anticipate a smooth transition of the janitorial service, and your questions and suggestions regarding this transition and the general janitorial service of the properties are welcome. Sincerely,

Joseph D. Albertson

Vice President — Property Operations

JDA/ja

Cc: Norma Brown

Gary Clifton

Jim Stacy

The reason for the termination of the contract was not fully developed at trial but there was evidence that Husband did not re-bid the contract in 2001. As to that issue, Husband testified on cross-examination:

Q. Mr. Sherman, did FNJ bid on the contracts for the Carondelet Health Campus in 2001?

A. No, we did not.

Although there was considerable evidence to the contrary, “[t]he trial court is free to believe or disbelieve all, part or none of the testimony of any witness.” T.B.G. v. C.A.G., 772 S.W.2d 658, 654 (Mo. banc 1989). “When determining the sufficiency of the evidence an appellate court will accept as true the evidence and inferences from the evidence that are favorable to the trial court’s decree and disregard all contrary evidence.” Id.

Husband also stated that he did not try to find other work for FNJ after the Car-ondelet contract was terminated. He testified that his reasons for not doing so were “... the market, the competition, and the headache. I’m tired of it.” No evidence was presented to indicate there were other opportunities for FNJ or the probable income that could be earned from those opportunities. Taken together with the evidence that he did not re-bid the Carondelet contract, the trial court could have reasonably inferred that Husband voluntarily reduced his income.

Another theme played out by Wife during trial was that FNJ was still operating despite Husband’s assertion to the contrary. Wife introduced documents from the company that processes FNJ’s payroll to show that Husband was underreporting FNJ’s income. The records indicated payroll activity between July 18, 2001, and October 31, 2001, a period after the termination of the Carondelet contract. The court could have used this evidence to support a finding that FNJ was still operating.

Again, we do not know the precise reason the court imputed income to Husband. Regardless, the evidence does not support the imputed amount of $1,000 a month. Historically, Husband has demonstrated an ability to earn income through his FNJ enterprise. But, the evidence in this somewhat unique case is insufficient to support the value imputed to his ability.

Apparently the trial court focused exclusively on FNJ’s earnings for the previous three years to. impute the $1,000 per month amount, perhaps, as indicated above, through some kind of averaging. However, Comment H to Form 14 makes it clear that the process to impute income is both backward looking and forward looking. In addition to a parent’s work history, the court must consider future employment and income potential and the availability of earning opportunities in the community. Indeed, the first non-exclusive factor listed in Comment H directs the court to consider the parent’s probable earnings based on his or her work history during the past three years — if such time period would be appropriate. In this case, it had been some three years prior to trial since FNJ had revenue anywhere near $1,000 a month. We also note that the earnings decline predates the filing of the petition for dissolution. Where income is relatively steady or historically fluctuates, averaging revenue from previous years might be a good predictor of future income. However, in this case it is not.

The most obvious conclusion we can reach from a review of FNJ’s financial history is that its income was dramatically and consistently dropping, from a high of $52,127 in 1995, to $9,238 in 2000. To impute income of $12,000 per year to Husband requires an inference that the steep decline in FNJ’s earnings would not only be halted but would be reversed. There is simply no evidence in the case from which to make this inference. We give great deference to a trial court’s conclusions, but those conclusions still must be based upon substantial evidence. Baker v. Baker, 60 S.W.3d 19, 24 (Mo.App. E.D.2001). “ ‘Although a court is permitted to impute the income to a parent that he or she earned in the past, an award of child support must always be supported by evidence of the parent’s ability to pay.’ ” Haden, 37 S.W.3d at 861 (quoting State ex rel. O.A. v. Anthony, 947 S.W.2d 832, 835 (Mo.App. W.D.1997)).

The purpose of imputation of income is to provide the appropriate level of support for the children. If a parent is deliberately limiting income to escape family responsibilities imputation encourages the parent to take advantage of income producing opportunities. The ultimate goal in preventing underemployment is to garner more assets for the family. However, imputing an amount that has no basis in the evidence or is beyond the capability of the parent does not legitimately achieve this goal.

Even assuming FNJ would have re-bid and secured the Carondelet contract, there is no substantial evidence from which to impute $1,000 a month in income to Husband. Although there was evidence of continued payroll activity, the amount of income, if any, generated by that activity was never established.

In summary, while there is evidence to support the conclusion that Husband voluntarily reduced his income, the record simply does not support the imputation of income in the amount of $1,000 per month as the trial court did. As the record now stands, it is impossible to determine what the appropriate amount of imputation would be, not knowing what FNJ might have realistically hoped to realize in income from available opportunities. Thus, because the imputation of income is critical to the trial court’s mandatory calculation of the PCSA in the first step of the procedure for determining child support outlined in Woolridge v. Woolridge, 915 S.W.2d 372 (Mo.App. W.D.1996) (the “Woolridge procedure”), we must reverse and remand the court’s award for further proceedings to allow the trial court to reconsider the issue of imputation of income to Husband and compute the PCSA accordingly.

Point II

In Point II, Husband claims that the trial court erred in rebutting the PCSA as being unjust and inappropriate for not being “sufficient to cover the reasonable needs of the children” and ordering him to pay $1,500 per month in child support because in doing so, the court failed to consider all relevant factors, as required by Rule 88.01. Specifically, he claims that in rebutting the PCSA and ordering him to pay $1,500 a month in child support, the trial court was required, but failed, to consider his “financial resources and needs.” Thus, the question presented concerns whether the trial court erroneously declared and applied the law with respect to the rebuttal step of the Woolridge procedure in ordering child support.

Logically, the resolution of the claim raised in this point is contingent on what the record would support as being Husband’s financial resources with which to meet his child support obligation. And, of course, that cannot be determined until the imputation of income issue discussed in Point I is resolved on remand. Moreover, on remand, the resolution of the imputation issue may cause the trial court’s child support award to ultimately change, which would directly bear on the issue of whether Husband has the financial means with which to satisfy the court’s award, whatever it might be. Thus, the issue of whether Husband is financially able to pay the child support amount ordered is not ripe for our review.

Point III

In Point III, Husband claims that: The trial court erred in the division of marital property because case law and § 452.330, R.S.Mo., 1998, holds that if the division of marital property is not fair it is an abuse of discretion such as in this case where the division is so heavily weighted in favor of respondent that it amounts to an abuse of discretion.

As explained below, we find this point relied on fails to satisfy the requirements of Rule 84.04(d), governing a proper point relied on, so it preserves nothing for our review. Coyne v. Coyne, 17 S.W.3d 904, 906 (Mo.App. E.D.2000).

Rule 84.04(d) requires that each point relied on: “(1) identify the trial court’s ruling or action that the appellant is challenging on appeal; (2) state the legal reasons for the appellant’s claim of reversible error; and (3) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.’ ” Wilson v. Carnahan, 25 S.W.3d 664, 666 (Mo.App. W.D.2000) (quoting Hall v. Mo. Bd. of Prob. & Parole, 10 S.W.3d 540, 543 (Mo.App. W.D. 1999)). Husband’s Point III fails to sufficiently explain in summary fashion why, in the context of the case, the legal reasons asserted support the claim of reversible error, as required by Rule 84.04(d)(1)(C). Where, as here, a point relied on sets out a mere abstract statement of law and does not explain why the legal reason or reasons asserted support the claim of reversible error, it is deficient and preserves nothing for appeal. Rule 84.04(d)(4); Crawford County Concerned Citizens v. Mo. Dep’t of Natural Res., 51 S.W.3d 904, 908 (Mo.App. W.D.2001).

Point dismissed.

Conclusion

The judgment of the trial court is affirmed in all respects except its award of child support, which is reversed, and the case is remanded for the trial court to reconsider the issue of imputation of income to Husband in calculating the PCSA and enter its child support order, all in accordance with the mandatory Woolridge procedure, Civil Procedure Form 14, Rule 88.01, § 452.340, and this opinion. The court may take additional evidence on this issue.

SMITH, C. J. concurs in separate concurring opinion. BRECKENRIDGE, J. dissents in separate dissenting opinion.

1 . This case was initially submitted and assigned to Judge Smith on July 29, 2003. It was reassigned to Judge Howard on December 15, 2003, who circulated the majority opinion on July 30, 2004. All rule references are to the Missouri Rules of Civil Procedure (2003), unless otherwise indicated.