Potter v. Potter ( 2002 )

NANCY STEFFEN RAHMEYER, Chief Judge,

dissenting.

I respectfully dissent on Mother’s first claim of error in the judgment for two reasons. First, the trial court found a change in circumstances in the needs of the child. Specifically, the trial court found the original child support was based on a compromise of the parents based upon the needs of the child and a change in the circumstances of the needs of the child had occurred. That finding is supported by the evidence of Mother’s expert concerning the child’s needs and the Form 14 and income and expense statement submitted by Mother.

In 1995 the parties entered into an agreement to allow Mother to stay home with their five-year-old son to homeschool him. They agreed to Father paying maintenance, the mortgage and substantial child support. The calculations were done without a Form 14 calculation and Father was not represented by an attorney in the dissolution. Mother submitted a Form 14 to indicate the extraordinary expenses necessary for homeschooling the child. Mother had not incurred many, if any, of the expenses listed in her Form 14. She listed such items as a new video player, a new set of encyclopedias and foreign language tutoring. The total extraordinary expense was over $14,000 for the child to be homes-chooled in addition to the Form 14 guideline amount, which arguably included extracurricular activities. Mother also failed to list any contribution on her part for the financial support of the child even though she was capable of earning $38,000 per year.

Mother’s expert testified that a “pror foundly” gifted child outstrips the teacher in 4th or 5th grade. This child was not even performing at his chronological age despite being profoundly gifted. Mother’s own expert recommended fulltime gifted education. Substantial evidence supports the trial court’s implicit finding that homeschooling was not meeting this child’s needs and thus a change of circumstances had occurred.

Second, I would find a substantial and continuing change in the financial circumstances of the parties. In the seven years following the parties initial agreement, the parties agreed that Father suffered an economic setback when his lease for his business was terminated. By the time Father got back on his feet financially, the substantial arrearage resulted in the garnishment of his income being almost twice the amount that he had for his own use (Mother had the use of $3,700 per month whereas Father was left with $2,000 per month). Furthermore, Mother was employed earning $38,000 per year for two years prior to the hearing. Despite these facts, because Father was earning as much income at the time of the hearing the majority opinion finds no changes in economic circumstances. The majority opinion finds that because the first child support calculation was done without using the guidelines, the twenty-percent deviation from the guidelines is immaterial, as is the temporary setback. There is no way for Father to come out ahead financially in the near future. I would defer to the credibility findings of the trial court and affirm the judgment.