Thurman v. Thurman

95 S.W.3d 172, 2003 Mo. App. LEXIS 65, 2003 WL 173959
CourtMissouri Court of Appeals
DecidedJanuary 28, 2003
DocketNo. WD 60904
StatusPublished
Cited by6 cases

This text of 95 S.W.3d 172 (Thurman v. Thurman) 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
Thurman v. Thurman, 95 S.W.3d 172, 2003 Mo. App. LEXIS 65, 2003 WL 173959 (Mo. Ct. App. 2003).

Opinion

RONALD R. HOLLIGER, Judge

Appellant Kevin Thurman (“Father”) appeals the dismissal of his motion to modify child support upon a finding that there had been no substantial and continuing change of circumstances since the original dissolution judgment. Finding no error in the proceedings below, we affirm.

FACTUAL AND PROCEDUAL BACKGROUND

Prior to the original dissolution action, it appears that Father was employed by an insurance business, though the particular details of his employment cannot be determined within the record on appeal. At some point prior to the dissolution, he left that position and was working part-time for Federal Express and at another part-time job.

The parties’ marriage was dissolved by a judgment of the circuit court on November 2, 1999. There were three minor children of the marriage. Custody of the parties’ son was awarded to Father, and custody of the two daughters was awarded to respondent Beth Thurman (“Mother”). The trial court also ordered Father to pay $450 per month in child support to Mother. In reaching that child support calculation, the dissolution court imputed income to Father. Neither the amount of income imputed to Father nor the reason for that imputation can be ascertained from the record on appeal.

Sometime after the dissolution, Father became employed full-time by FedEx. In May 2001, he left FedEx to attend university classes. Father’s motion to modify was subsequently filed on May 24, 2001, alleging that the parties’ Form 14 calculation had changed, reducing Father’s child support obligation to less than eighty per[174]*174cent of the amount originally ordered. Mother filed a motion to dismiss, arguing that there had been no substantial and continuing change of circumstances.

At the hearing, Father testified that his income for the current year and the previous three years ranged from $22,024 to $30,394 per year. He estimated his income for 2001 would be approximately $26,000. Father also testified to an average monthly income of $2,178, based upon his income in the past four years. Mother testified that her monthly income was $1,612. Father submitted Form 14 calculations showing a net presumed child support amount of $202 per month. That net amount was the difference between the Father’s presumed support obligation of $475 per month and Mother’s presumed support obligation of $273 per month.

There was also evidence adduced that, since the dissolution judgment, Father had received a partial, lump-sum distribution from his mother’s probate estate in the amount of $160,000. While Father would not be receiving any additional amounts on a periodic, recurring basis, he anticipated receiving an additional disbursement from the probate estate, which he stated could be as large as $60,000. Evidence was also presented that Father had ceased working after receiving his inheritance, for the purpose of attending college on a full-time basis.

Neither party requested detailed findings of fact or conclusions of law at the hearing. On November 25, 2001, the circuit court entered its judgment dismissing Father’s motion to modify. That judgment was premised upon two grounds. First, it found that Father had not established that there had been a greater than twenty percent change in the presumed child support amount. Second, it found that Father’s voluntary underemployment and receipt of inheritance did not warrant a reduction in his child support obligations. Father now appeals that judgment.

DISCUSSION

Father presents three points on appeal. First, Father argues that the trial court erred in dismissing his motion to modify because Father established a prima facie case that there had been a substantial and continuing change of circumstances, in that application of the Form 14 child support guidelines showed more than a twenty percent change of the presumed child support amount. In his second point on appeal, Father contends that the trial court erred in finding that he was underemployed, imputing income to him, as there was no substantial evidence to support that finding and that finding was against the weight of the evidence. For his final point on appeal, Father alleges that the trial court erred in dismissing his motion to modify on the basis that his inheritance rendered unwarranted any modification of his child support obligation. Father takes the position that the trial court improperly considered that inheritance as gross income.

In response to appellants’ points on appeal, Mother contends that there was a substantial basis for each of the court’s findings and that those findings were not an abuse of discretion. First, she contends that the trial court could properly impute income to Father due to his voluntary decision to quit work and attend college. Second, she takes the position that the trial court could properly take into consideration the inheritance Father received between the time of the dissolution judgment and the hearing.

While the trial court was ostensibly proceeding upon Mother’s motion to dismiss, it appears that the parties and the court treated that hearing as a trial upon [175]*175the merits of Father’s motion to modify. As such, the parties agree that the applicable standard of review is that applicable to court-tried cases. We will affirm the judgment unless it is unsupported by substantial evidence, it is against the weight of the evidence, or the judgment erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Patton v. Patton, 973 S.W.2d 139, 144 (Mo.App.1998).

In determining whether Father’s motion to modify should be granted, the trial court was required to determine whether there had been a substantial and continuing change of circumstances since the dissolution judgment. Section 452.370.1, RSMo 2000. Aprima facie case can be made that there has been a change by showing that that there is more than twenty percent difference between the payor parent’s current Form 14 calculations and those adopted by the court in support of the prior child support judgment. Crotty v. Kline, 947 S.W.2d 121, 123 (Mo.App.1997).

Here, it is critical to note that the original child support calculation included an imputation of income to Father due to a finding that he was underemployed. Therefore, the trial court is required to do more than merely compare Father’s current Form 14 calculations with the amount of monthly child support that he is paying under the dissolution judgment. As part of determining whether there had been a change of circumstances, it was also necessary for the trial court to consider whether the reasons for the original imputation of income were still present or whether imputation was no longer necessary. Here, the trial court apparently found that Father had failed to establish that the original basis for the imputation was no longer applicable.

The record on appeal does not contain the original dissolution judgment nor does it contain the Form 14 calculations relied upon by the court issuing that judgment. We therefore have no record of the circumstances at the time of the original dissolution judgment.

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Bluebook (online)
95 S.W.3d 172, 2003 Mo. App. LEXIS 65, 2003 WL 173959, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thurman-v-thurman-moctapp-2003.