Kropf v. Jones

          Appeal from the Circuit Court of Audrain County. 09AU-DR00049-01. Honorable Michael S. Wright.

         FOR APPELLANT: Ronald S. Ribaudo, Ballwin, MO; Christina N. Strange McCartney, Columbia, MO.

         FOR RESPONDENT: Robert V. Krueger, Jr., Mexico, MO.

         ROBERT M. CLAYTON III, Judge. Patricia L. Cohen, P.J., and Roy L. Richter, J., concur.

          OPINION

         ROBERT M. CLAYTON III, Judge

         Mathew Adams Jones (" Father" ) appeals the trial court's judgment denying his motion to modify his child support obligation, finding Jamie Lee Kropf (" Mother" ) had not relocated with the parties' minor child, and ordering Father to pay a portion of Mother's attorney's fees. We affirm.

         I. BACKGROUND

         The parties were married in June 2006 and had a child together in June 2009 (" Child" ). In March 2010, the trial court entered a judgment dissolving the parties' marriage, and an amended judgment was entered in May 2010. The amended dissolution judgment awarded Mother sole physical custody of Child, awarded Father visitation, awarded the parties joint legal custody, and ordered Father to pay Mother $1,200 per month in child support.

         In determining Father's monthly child support obligation to be $1,200, the trial court imputed a monthly gross income of $2,080 to Mother. The court also found that Father, a pipeline welder, had a monthly gross income of $11,801, an amount which included money Father received for rig pay and per diem pay.^[1] Using the parties' monthly gross incomes, the trial court found Father's Form 14^[2] presumed child support obligation was $1,544 per month. However, the trial court found the presumed child support amount was unjust and inappropriate and instead ordered Father to pay Mother $1,200 per month in child support.

         After the trial court entered its amended dissolution judgment, Father filed a motion to modify seeking to reduce his monthly child support amount and increase his visitation with Child. With respect to child support, Father's motion alleged a substantial and continuing change in circumstances had occurred because there was a change in his income. Father requested an increase in visitation in part because Mother had allegedly moved from her prior address and failed to give notice of the new address to Father. Mother filed a counter-motion requesting, inter alia, attorney's fees.

         Neither Father's motion to modify nor Mother's counter-motion requested the trial court to provide findings of fact or conclusions of law in its judgment. A bench trial was held on the parties' motions in February 2014. Father, Mother, and Jesse Deere were among the witnesses who testified at the trial.

         Father testified at the bench trial that his taxable gross income had decreased since the amended dissolution judgment, because the Internal Revenue Service (" IRS" ) no longer deemed his rig pay and per diem pay as part of his gross income for tax purposes. Father stated his taxable gross monthly wages were $8,033, and he also received a total of approximately $4,000 in rig pay and per diem pay each month. Father testified his employer sometimes required him to travel for his job and incur employment-related expenses for work clothing, work truck ownership and maintenance, work tools, mileage, lodging, and food. Father's testimony indicated that his rig pay and per diem pay were not dollar-for-dollar reimbursements for employment-related expenses Father incurred but instead represented a general allocation for anticipated expenses. Father testified he received rig pay at a rate of $17 per hour for each hour he worked for reimbursement of anticipated expenses for work clothing, owning and operating a work truck and tools, and mileage. Father also testified he received per diem pay at a rate ranging from $102.50 to $165 per day for reimbursement of anticipated expenses for out-of-town lodging and food. Although Father stated that his rig pay and per diem pay were no longer subject to federal income taxes at the time of the modification proceedings, Father admitted there was nothing else different about how he received rig pay and per diem pay at the time of the original dissolution proceedings.

         Mother testified she and Child resided at Mother's parents' home in Mexico, Missouri following the parties' 2010 divorce and until the February 2014 bench trial on Father's motion to modify.

         Deere testified at the bench trial that he was in a romantic relationship with Mother from 2010 to 2011. Deere also testified Mother and Child moved into his home in 2010 and they spent 50 to 75 percent of their time there. Deere stated his relationship with Mother was " rocky" and there were several breakups interspersed throughout their relationship. Deere also stated there would be nights Mother and Child would spend the night at Deere's home and then return to their permanent residence with Mother's parents. Deere admitted Mother never physically changed her address from her parents to Deere's address and most of Mother's personal property and belongings remained at her permanent residence with her parents.

         In April 2014, the trial court entered a judgment denying Father's motion to modify his child support obligation, finding Mother had not relocated with Child, and ordering Father to pay a portion of Mother's attorney's fees. With respect to child support, the trial court found Father had not established a change in circumstances warranting modification, i.e., that Father had not established a substantial and continuing change in circumstances as to make the terms of the original child support award unreasonable. In making its determination, the trial court prepared two Form 14's. The only difference in the Form 14's was the trial court used two different calculations for Mother's reasonable work-related child care costs and Mother's child care tax credit. Both of the trial court's Form 14's found that Father's monthly gross income was $12,033 and Mother's monthly gross income was $2,271. Based upon those figures, one of the trial court's Form 14's calculated Father's presumed monthly child support obligation to be $1,457, and the court's other Form 14 calculated Father's presumed monthly child support to be $1,133. The trial court found both of those presumed child support amounts were unjust and inappropriate and, consistent with the amended dissolution judgment, the court ordered Father to continue to pay Mother $1,200 per month in child support.

         With respect to Mother's alleged relocation, Father's proposed judgment requested the trial court to find " [Mother] relocated the principal residence of [Child] and did not provide notice to [Father] as required by Section 452.377 [ ] RSMo [2000^[3]]." However, the trial court did not include that finding in its judgment and instead found Mother resided at her parents' home.

         The trial court's judgment also ordered Father to pay Mother $3,500 in attorney's fees. Father appeals.

         II. DISCUSSION

         Father raises three points on appeal. Father's first point on appeal argues the trial court erred in finding he had not established a change in circumstances warranting a modification of his child support obligation. Father's second point on appeal asserts the trial court erred in failing to find Mother had improperly relocated with Child. Finally, Father's third point on appeal contends the trial court erred in ordering him to pay Mother $3,500 in attorney's fees.

         A. General Standard of Review

          As with any court-tried case, we review a trial court's judgment modifying a dissolution decree pursuant to Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Mehler v. Martin, 440 S.W.3d 529, 531 (Mo. App. E.D. 2014). Accordingly, we will affirm the trial court's judgment 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. Id.

         Where, as in this case, neither party requested the trial court to make findings of fact, all fact issues upon which no specific findings are made are considered as having been found in accordance with the result reached by the trial court. Patz v. Patz, 412 S.W.3d 352, 355 (Mo. App. E.D. 2013); Rule 73.01(c)^[4]. Moreover, we view the evidence and inferences therefrom in the light most favorable to the judgment, and we disregard all contrary evidence and inferences. Potts v. Potts, 303 S.W.3d 177, 184 (Mo. App. W.D. 2010). " Judging credibility and assigning weight to evidence and testimony are matters for the trial court, which is free to believe none, part, or all of the testimony of any witnesses." Id. (quotations omitted). Consequently, we defer to the trial court's credibility ...