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09/28/93 TRUDY LOUISE MCMICKLE v. RONALD D.

September 28, 1993

TRUDY LOUISE MCMICKLE, APPELLANT-RESPONDENT,
v.
RONALD D. MCMICKLE, RESPONDENT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY. The Honorable Jane Pansing Brown, Judge

Before Berrey, P.j., Breckenridge and Hanna, JJ.

The opinion of the court was delivered by: Breckenridge

This appeal arises from an order modifying the child support provisions of the trial court's decree of dissolution due to the emancipation of the parties' son. Trudy Louise McMickle (Mother) appeals from an order reducing the amount of child support Ronald D. McMickle (Father) is to pay from the $1,100 lump sum payment for the two children to $407.49 for the parties' daughter plus one-half of her educational and medical expenses. Father filed a cross-appeal from a judgment of $8,250.00 entered against him for a child support arrearage. Mother raises five points on appeal. In four of these points she claims the trial court misapplied the law and ruled against the weight of the evidence in finding a substantial and continuing change of circumstances that justified a modification of support and in computing the support amount needed for the parties' daughter. Mother claims in an additional point that the trial court erred in not making findings of fact pursuant to Rule 73.01 as she requested. Father's cross-appeal asserts a misapplication of law in the trial court's refusal to order a reduction of child support retroactive to the date of his son's emancipation. The judgment is affirmed.

The original decree dissolving the marriage of Trudy Louise McMickle and Ronald D. McMickle was entered on February 26, 1988. There were two children born of the marriage, Byron Dean McMickle, born November 25, 1970, and Tracy Renee McMickle, born September 10, 1977. Mother was awarded custody of the children and Father was ordered to pay lump sum support in the amount of $1,100 per month for the two children.

On February 4, 1991, Father filed a motion to modify the order of child support alleging a substantial change of circumstances in that Byron was age 20 and was not enrolled in any secondary school or program of instruction. Father requested a judicial determination that Byron was emancipated and a termination of Father's duty to support Byron. Mother does not contest that Byron is emancipated, but she challenges the trial court's finding that such change of circumstances renders the prior order of support unreasonable when considering her daughter's special needs.

Tracy was fourteen years old at the time of the hearing on the motion to modify. When she was five years old, Tracy was diagnosed with a brain tumor and underwent two surgeries thereafter. As a result of her illness and its treatment, she suffers some disabilities. Tracy attends public school where she is enrolled in a learning disabilities class. She receives additional instruction at the Sylvan Learning Center to improve her reading skills, at a cost of $240 per month. Tracy's medical expenses attributable to her condition are covered by insurance, except for a deductible and twenty percent of prescription costs. The cost for medical and dental treatment for Tracy in 1991, which was not reimbursed by insurance, was $1,646.

The court found a change of circumstances so substantial and continuing as to warrant a modification of the decree of dissolution in that Byron's emancipation in January, 1991 resulted in a decrease in Mother's support expenses. The court also found that Mother's income had increased more than twenty percent since the date of the decree of dissolution enabling her to make a greater contribution toward the support of Tracy. The trial court determined the presumed child support under the Rule 88.01 guidelines to be $799, with Father's fifty-one percent share being $407.49. This figure varies more than twenty percent from the original amount of support. Due to Tracy's special needs, the court found the presumed child support amount under Rule 88.01 to be unjust and inappropriate. The court, therefore, ordered that the original child support be modified so that Father's support obligation was reduced from $1,100 to $407.49 per month plus additional support of one-half of tutorial and educational expenses and one-half of medical expenses not covered by insurance.

In her Point I, Mother asserts that the trial court erred in applying the law under § 452.370.1, RSMo Cum. Supp. 1992, *fn1 and Rule 88.01 by finding that Father made a prima facie showing of a substantial change of circumstances which rendered the prior order of child support unreasonable. Father, as the party seeking the modification, bears the burden of showing a change of circumstances so substantial and continuing that the current terms of child support are unreasonable. Davidson v. Davidson, 786 S.W.2d 186, 187 (Mo. App. 1990). Once the moving party has met the burden of proving a change of circumstances, child support is determined by applying the criteria in Rule 88.01. § 452.370.2; Campbell v. Campbell, 811 S.W.2d 504, 506 (Mo. App. 1991). On appeal, the trial court's ruling will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence or it erroneously declares or applies the law. Weber v. Weber, 804 S.W.2d 756, 758 (Mo. App. 1990); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Due regard is given to the trial court's superior ability to view the witnesses and determine their credibility. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989). "The trial court is free to believe or disbelieve all, part or none of the testimony of any witness." Id.

Mother focuses on the finding of the trial court that Mother's income has increased by more than twenty percent since the date of the Decree of Dissolution. She argues that any computation which fails to take into consideration all the factors enumerated by Rule 88.01 is flawed if such computation is to be compared with the original amount of support to determine if there is a change of twenty percent and, thus, a prima facie showing of a change of circumstances. Rule 88.01 states:

When determining the amount of child support to order, a court or administrative agency shall consider all relevant factors, including:

(a) the financial resources and needs of the child;

(b) the financial resources and needs of the parents;

(c) the standard of living the child would have enjoyed had the marriage ...


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