DocketNumber: ED 105974
Citation Numbers: 554 S.W.3d 524
Judges: Dowd
Filed Date: 7/10/2018
Status: Precedential
Modified Date: 1/21/2022
Deanna Reinhart ("Appellant") appeals from a judgment granting the motion of Timothy Reinhart ("Respondent") to modify the child support and denying Appellant's motion for contempt. We affirm.
On April 19, 2010, the trial court entered its judgment and decree of dissolution of the parties' marriage. The trial court awarded Appellant and Respondent joint legal and physical custody of their children, who were respectively ages 14 and 6 at the time of dissolution, and Appellant was designated the residential parent. The dissolution incorporated an agreement between Appellant and Respondent that Respondent would pay Appellant $1,500 per month in child support for two children and $1,000 per month for one child. The parties agreed that Respondent would pay more child support than the guidelines required, and as such, the dissolution judgment noted that the child support amounts were not determined in accordance with authorized support guidelines "as a strict application of the child support guidelines would be unjust and inappropriate at this time."
Respondent filed and served Appellant with a motion to modify child support on August 11, 2015, claiming that since the time of the original judgment there were changed circumstances so substantial and continuing as to make the terms of the judgment unreasonable. During the pendency of the case, in August 2016, when the parties' oldest child went away to college, Appellant reduced his child support payment from $1,500 for two children to $1,000 for one child. On September 8, 2016, Appellant sought to have Respondent's wages withheld for failure to pay the full $1,500 in child support, and on September 13, 2016, Appellant moved to hold Respondent in contempt for the $500 in arrears. On September 30, 2016, the trial court terminated the wage withholding pursuant to Respondent's motion, and Appellant's motion for contempt was continued to the date of the trial on Respondent's motion to modify child support. After hearing the evidence at trial, the trial court denied Appellant's motion for contempt and prospectively reduced Respondent's child support payment to $288 per month and ordered Appellant to reimburse Respondent $3,428 for overpaid child support. This appeal follows.
Appellant makes two points on appeal. First, she claims that the trial court erred in granting Respondent's motion to modify because modification must be predicated on a finding of the obligor's inability to pay the agreed upon amount of child support, and Respondent did not prove his inability to pay since he testified at trial that he was making more money than at the time *527of the original dissolution judgment and that he was able to pay his current child support obligation.
Our review of the trial court's ruling on a motion to modify child support in a dissolution judgment "is limited to determining whether the judgment is supported by substantial evidence, whether it is against the weight of the evidence, whether it erroneously declares the law or whether it erroneously applies the law." Selby v. Smith ,
Section 452.370.1 provides:
... [T]he provisions of any judgment respecting maintenance or support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable. In a proceeding for modification of any child support or maintenance judgment, the court, in determining whether or not a substantial change in circumstances has occurred, shall consider all financial resources of both parties , including the extent to which the reasonable expenses of either party are, or should be, shared by a spouse or other person with whom he or she cohabits, and the earning capacity of a party who is not employed. If the application of the child support guidelines and criteria set forth in section 452.340 and applicable supreme court rules to the financial circumstances of the parties would result in a change of child support from the existing amount by twenty percent or more, a prima facie showing has been made of a change of circumstances so substantial and continuing as to make the present terms unreasonable, if the existing amount was based upon the presumed amount pursuant to the child support guidelines.
(emphasis added). Here, the original child support amount agreed to by the parties and incorporated into the dissolution judgment was more than the presumed amount under the child support guidelines. As such, the twenty-percent provision of Section 452.370.1 is not applicable. See Eaton v. Bell ,
Here, there was evidence that Appellant's income increased from $79,500 at *528the time of the dissolution to $183,000 at the time of trial.
In addition to the statutory considerations, changes in the children's needs may also show a substantial and continuing change of circumstances warranting modification. See Eaton ,
Appellant argues that a modification of child support in this case-where the original amount of child support was agreed upon and not based on the presumed amount under the child support guidelines-"must be predicated on a finding of the obligor's inability to pay the agreed upon sum." Appellant argues that because Respondent testified that he was making more money than at the time of the dissolution judgment and that he was still able to pay the existing child support amount, the court ruled against the weight of the evidence and erred in granting his motion to modify. To support this argument, Appellant relies on Abernathy v. Abernathy ,
However, in Abernathy , the court reviewed the agency's application of the twenty-percent provision of Section 452.370.1 and found that the provision was inapplicable. Id. at 641. Here, the application of the twenty-percent provision is not at issue in this case. The trial court did not apply the provision, and neither party argues that it should have been applied. In addition, the "inability to pay" requirement discussed in Abernathy comes from a Western District case, Brown v. Brown ,
The court on appeal noted "[t]he party seeking modification has a heavy burden of proving he is unable to support his children in the manner contemplated at the time the separation agreement was incorporated into the dissolution decree."
*530See id. at 724-25. Instead, it addressed "[t]he only change in circumstances asserted by [the father]," namely that the transfer of legal custody placed additional financial burdens on him with respect to the children's expenses and found that the mother was still required to pay expenses related to activities for which she enrolled the children. Id. at 724-25. The court noted that the twenty-percent provision of Section 452.370.1 did not apply but then considered the only factor offered by the father, the additional burdens resulting from the transfer of legal custody, to determine whether there were changed circumstances so substantial and continuing as to make the terms unreasonable and warrant modification. Id. The court concluded that the father had failed to meet his burden of showing such changed circumstances. Id. at 725.
Brown took the language regarding the inability to pay from Forhan v. Forhan,
While the mother in Forhan asserted there was insufficient evidence to support the trial court's finding that the decline in the husband's income was involuntary and continuing, the father admitted that the needs of the children had increased.
Nothing about this line of cases leading to the decision in Abernathy limits trial courts to only consider an obligor's ability to pay the existing and agreed upon child support obligation when deciding whether to modify child support. In Forhan , the only basis for modification offered was the changed financial situation of the paying parent.
Point I is denied.
For her second point, Appellant claims the trial court erred in failing to hold Respondent in contempt for his failure to pay the required amount of child support while the parties' oldest child attended post-secondary schooling. Appellant argues that the original dissolution judgment was both unambiguous in its requirement of such payment and also immune from collateral attack.
"[I]n a civil contempt proceeding, this court will affirm the judgment unless there is no substantial evidence to support the decision, the decision is against the weight of the evidence, or the decision erroneously declares or applies the law." Ream-Nelson v. Nelson ,
"A party alleging contempt establishes a prima facie case for civil contempt when the party proves: (1) the contemnor's obligation to perform an action as required by the decree; and (2) the contemnor's failure to meet the obligation." Ream-Nelson ,
On August 11, 2015, Respondent filed and served Appellant with his motion to modify child support. On June 21, 2016, the custody order was modified to add a Sunday night to Respondent's weekend visitation, and in August 2016, when the parties' oldest child went to college, Respondent reduced his child support from $1,500 per month to cover two children to $1,000 per month to cover one child. Claiming the dissolution judgment clearly provided that child support shall not abate while a child attends college, Appellant sought to have Respondent's wages withheld for failing to pay the full amount of child support and moved to hold Respondent in contempt for the $500 in arrears. The trial court terminated the wage withholding pursuant to Respondent's motion, and Appellant's motion to hold Respondent *532in contempt was continued to the date of the trial on Respondent's motion to modify child support. The trial court ultimately denied Appellant's motion for contempt and reduced Respondent's child support modification to $288 per month and ordered Appellant to reimburse Respondent $3,428 for overpaid child support from the time of the June 2016 custody modification.
Here, the trial court had discretion to modify Respondent's child support obligation as of August 11, 2015, the date Appellant was personally served with Respondent's motion to modify child support. See Hoffman-Francis v. Francis ,
We have found no error in the trial court's order modifying child support as challenged. Therefore, we find no abuse of discretion in the trial court's denial of Appellant's motion for contempt.
Point II is denied.
Judgment affirmed.
Sherri B. Sullivan, J. and Kurt S. Odenwald, J., concur.
While Appellant argues that it was an error to modify Respondent's child support obligation, Appellant does not challenge the amount of the trial court's retrospective or prospective modification or any of the trial court's findings regarding the financial positions of the parties.
Respondent argues, and the trial court found, that Appellant's net worth also increased by 180% since the time of the original dissolution judgment. While Appellant does not challenge this conclusion, the evidence of this increase was not made part of our record on appeal.
While Appellant did not testify to her new husband's specific contribution to her household expenses, she testified that he buys groceries and "pays a couple of specific utility bills." She does not challenge the trial court's finding that Appellant's new husband contributes $530 each month to her household expenses.
Given our conclusion here, we need not address Appellant's argument regarding the trial court's finding that the language in the original dissolution judgment regarding abatement is indefinite and unenforceable or that the original dissolution decree was immune from collateral attack.