Watkins v. Watkins

839 S.W.2d 745, 1992 Mo. App. LEXIS 1635, 1992 WL 303265
CourtMissouri Court of Appeals
DecidedOctober 27, 1992
DocketWD 45522
StatusPublished
Cited by18 cases

This text of 839 S.W.2d 745 (Watkins v. Watkins) 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
Watkins v. Watkins, 839 S.W.2d 745, 1992 Mo. App. LEXIS 1635, 1992 WL 303265 (Mo. Ct. App. 1992).

Opinion

ULRICH, Presiding Judge.

Linda Jean Watkins appeals from the September 10, 1991, judgment of the trial court that modified the court’s May 2,1991, original decree of dissolution. 1 The judgment appealed from denies Ms. Watkins’ application for the circuit court to find Robert D. Watkins in contempt and sustains Mr. Watkins’ motion to reduce child support. The judgment is affirmed in part, reversed in part and remanded.

Linda Jean Watkins raises three points on appeal. Ms. Watkins contends that the trial court erred (1) in finding insufficient evidence to convict Mr. Watkins of contempt for failure to pay child support and maintenance; (2) in reducing child support on a “substantial change of circumstances” standard, rather than applying an “extraordinary change” standard, based on the short, four month period from the date of the original decree to the date of the modification order; and (3) in failing to include day care costs as reasonable employment-related expenses in the presumed child support calculation as required by Rule 88.01 and Civil Procedure Form 14.

On May 2,1991, the Circuit Court of Clay County, Missouri dissolved the marriage of Linda Jean Watkins and Robert Dion Watkins. As a part of the dissolution decree, the circuit court awarded custody of the four minor children of the marriage to Ms. Watkins and ordered Mr. Watkins to pay child support in the amount of $280.00 per month per child in addition to maintenance in the amount of $200.00 per month. Mr. Watkins’ total support obligation was $1,320.00 per month.

*747 Mr. Watkins paid the obligated amount once. Mr. Watkins paid $1,020.00 in May of 1991; $1,320.00 in June; $700.00 in July; and $300.00 in August; leaving an arrear-age as of August 1991 of $1,940.00. On August 9,1992, Ms. Watkins filed an Application for Contempt Citation because of Mr. Watkins’ failure to pay the ordered support. Accordingly, the Circuit Court of Clay County issued its order directing Mr. Watkins to show cause why he should not be found in contempt of court, and shortly thereafter, Mr. Watkins filed his motion to modify the Decree of Dissolution. 2

Pursuant to the show cause order, the circuit court held a hearing on August 28, 1991 and September 4, 1991. During the hearing the court took judicial notice of the original decree, and the parties stipulated that Mr. Watkins was $1,940.00 in arrears on his court ordered support obligation.

Subsequently, the circuit court entered an order on September 10, 1991, denying Ms. Watkins’ application for contempt citation and sustaining Mr. Watkins’ motion to reduce child support. As a part of this order the circuit court made an express finding of fact that Mr. Watkins’ income was $2,166.00 per month. The court also found that Ms. Watkins incurred no work-related child care costs during the previous three months and, therefore, child care costs did not need to be considered in determining the amount of child support required. The court reduced Mr. Watkins’ monthly child support obligation from $280.00 per child per month to $175.00 per child per month.

1. Contempt of Court

Ms. Watkins contends as point (1) that the trial court erred in refusing to find Mr. Watkins in contempt for failure to pay court ordered child support and maintenance. She argues that she established a prima facie case for contempt and that since Mr. Watkins did not even make payment equal to the modified reduced amount required by the court’s September 10 order in the month preceding the contempt hearing, he failed to meet his burden of proof. The circuit court found that there was not sufficient evidence to find Mr. Watkins guilty of contempt of court.

A prima facie case for contempt is established in a civil contempt proceeding for noncompliance with orders in a dissolution of marriage judgment when the party alleging contempt proves both (1) the contemnor’s obligation to pay support in a specific amount and (2) the contemnor’s failure to make payment. Wisdom v. Wisdom, 689 S.W.2d 82, 85 (Mo.App.1985); Hopkins v. Hopkins, 626 S.W.2d 389, 391 (Mo.App.1981). When the prima facie case is established, the contemnor then bears the burden of proving his or her inability to make payments and that noncompliance was not an act of contumacy. Wisdom, 689 S.W.2d at 85; Hopkins, 626 S.W.2d at 391.

In this case, the circuit court took judicial notice of the terms of Mr. Watkins’ support obligations, and the parties stipulated that Mr. Watkins was $1,940.00 in arrears on his payments. Ms. Watkins established a prima facie case for contempt. Mr. Watkins then had the burden of proving his noncompliance was not due to an act of contumacy.

The circuit court expressly found that there was not sufficient evidence to hold Mr. Watkins guilty of contempt of court. The court found Mr. Watkins had income of $2,166.00 per month, an amount less than that used in figuring his support obligation in the original decree. The court found the original child support order to be inequitable and reduced Mr. Watkins’ child support obligation.

The trial court ruling in civil contempt cases will not be disturbed by the reviewing appellate court “unless the ruling was a clear abuse of discretion.” Bopp v. Bopp, 671 S.W.2d 348, 352 (Mo.App.1984); Shanks v. Shanks, 603 S.W.2d 46, 48 (Mo.App.1980). Although Ms. Watkins is correct that Mr. Watkins paid less in August than the amount he is legally pre *748 sumed to be able to pay using the trial court’s modified income amount, Mr. Watkins’ failure to pay more was not clearly contumacious and the trial court did not abuse its discretion in finding insufficient evidence that Mr. Watkins was guilty of contempt. Point (1) is denied.

2. Reduction of Child Support

Ms. Watkins contends as point (2) that the trial court erred in reducing Mr. Watkins’ child support obligation on a “substantial change of circumstances” standard, rather than applying an “extraordinary change” standard. Ms. Watkins contends that the more exacting standard is required because of the short, four month period from the date of the original decree to the date of the modification order.

Child support orders may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable. § 452.370.1 RSMo Supp.1991. Ms. Watkins cites Etling v. Etling, 747 S.W.2d 285 (Mo.App.1988), for the proposition that an “extraordinary change” in circumstances, a stricter standard, is applicable in this case. In Etling, Ms. Etling, who had custody of the three children of the marriage, sought to have the child support amount increased fourteen months after the decree had been entered. Id. at 286. Ms.

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Bluebook (online)
839 S.W.2d 745, 1992 Mo. App. LEXIS 1635, 1992 WL 303265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watkins-v-watkins-moctapp-1992.