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Rackers v. Rackers

Court of Appeals of Missouri, Western District, First Division

October 4, 2016

ADAM W. RACKERS, Respondent,

         Appeal from the Circuit Court of Cole County, Missouri Honorable Daniel Richard Green, Judge

          Before: Anthony Rex Gabbert, P.J., Thomas H. Newton, and Alok Ahuja, JJ.

          Thomas H. Newton, Judge

         Ms. Jennifer Rackers appeals a judgment awarding her ex-husband Mr. Adam Rackers a 50% Line 11 discount on the Form 14 child-support calculation, denying her request for a right of first refusal when Mr. Rackers is unavailable to exercise his right to visitation, and denying her request for attorney fees. We remand in part and affirm in part.

         Factual and Procedural Background

         The marriage of Mr. and Ms. Rackers was dissolved on July 9, 2008. There were two children born of the marriage. The parties were awarded joint legal and physical custody of the minor children with equal custodial time, and Mr. Rackers was ordered to pay Ms. Rackers $833.00 in child support each month.

         The dissolution was modified on June 27, 2011. In this proceeding, the court reduced the child support payment to $252.00 per month and granted Mr. Rackers a 50% credit on Line 11, finding the credit to be "just and appropriate."[1] After the modification hearing, Ms. Rackers was adjudged disabled by the Social Security Administration as determined in an order dated May 15, 2012.

         Ms. Rackers filed her second modification motion on June 17, 2014, alleging a substantial change in circumstances because of her disability award and Mr. Rackers's increased income. During the June 10, 2015, hearing, Ms. Rackers testified that she received $1, 068.90 per month in Social Security Disability Income and that $104.90 of that amount was deducted for her Medicare coverage. She also testified that she had a third child not of the marriage. Ms. Rackers testified that she received a monthly payment of $165 for each of her three children from the Social Security Administration. Ms. Rackers testified that Mr. Rackers's income had increased from $2, 979.00 per month to $4, 168.00 and that he provided health insurance for his two children at the cost of $151.00 per month. On direct examination, Mr. Rackers testified that he earned $23.97 per hour for a 40-hour work week and used these figures to testify to a monthly gross income of $4, 168.00.

         At trial, counsel for Ms. Rackers presented a Form 14 worksheet indicating that her monthly income was $1, 399, the sum of her income check and the Social Security allotment for the two boys. Her proposed Form 14 allowed a credit at Line 2C2 for her third child and included the $165 Social Security payment for that same child at Line 2C3. Ms. Rackers's Form 14 offered no Line 11 credit. Mr. Rackers's counsel objected to the use of Ms. Rackers's Form 14 on the basis that it uses incorrect numbers. The court overruled this objection and indicated that it would also consider the Form 14 offered by Mr. Rackers.

         Mr. Rackers presented a proposed Form 14 worksheet indicating his income at $4, 168.00 per month, with a credit for health insurance paid, and a 50% Line 11 credit. He further testified that he was current on his child support payments and that there was nothing provided for the children at their mother's home that was not provided by him equally when the children spent their periods of custody at his house.

         Ms. Rackers also requested a modification indicating that when Mr. Rackers was away for work during his custodial time with the children, custody should "default" to her, so a third party was not watching the children. Ms. Rackers testified that Mr. Rackers was absent an average of five days per month of his custodial time with the children, and that he was unable to exercise his visitation on those occasions. Conversely, Mr. Rackers testified that he was away "on average less than one" night per month of his custodial time. He explained that instead of leaving the children overnight, he drove home to be with them. In addition, he explained that when he was away the boys stayed with his parents, with whom the children had a good relationship.

         Finally, Ms. Rackers presented a bill for legal fees requesting that the court order Mr. Rackers to pay all or part of her legal fees to counsel. Her counsel asked that the trial court use its "own expertise whether the work was necessary by looking at the bills and taking judicial notice of the case." On cross examination, counsel for Mr. Rackers questioned charges for assistance with a traffic ticket and an order of protection, and Ms. Rackers explained that she did not expect Mr. Rackers to pay for anything related to either matter.

         At the close of evidence, Ms. Rackers's counsel reminded the court of her request for findings of fact and conclusions of law to be issued. Both parties submitted proposed judgments.

         The trial court issued its judgment on September 1, 2015, stating:

1. Father shall pay child support to Mother in the amount of $355.00 per month beginning August 1, 2015. Said increased child support shall continue to be paid via withholding and through the Family Support Payment Center.
2. The custody schedule of the parties as per the 2011 Modification is to continue, same being just, appropriate and in the best interests of the minor children, with the exception that said schedule is modified to accommodate the voluntary changes of the parties, wherein Mother shall have the children on Wednesday and Thursday until 5:00 pm or after school, whichsoever shall first occur, and Father shall have the minor children on Monday and Tuesday until 5:00 pm or after school, whichsoever shall first occur.
3. In all other respects, the Parenting Plan adopted and modified by this Court in its previous Judgments of July 9, 2008, and June 27, 2011, shall remain in full force and effect.
4. Each party shall be responsible for their own attorney's fees. Court costs taxed to the filing party, which is Respondent.

         This appeal follows.

         Legal Analysis

         This Court "will uphold the trial court's award of child support unless no substantial evidence exists to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Nelson v. Nelson, 25 S.W.3d 511, 520 (Mo. App. W.D. 2000) (citation omitted). "An appellate court will interfere with the trial court's award of child support if the trial court abused its discretion by ordering an amount that is 'against the logic of the circumstances' or 'arbitrary or unreasonable.'" Id. (citations omitted). "The trial court's award of child support will not be disturbed on appeal 'unless the evidence is "palpably insufficient" to support it.'" Id. (quoting Allen v. Allen, 961 S.W.2d 891, 893 (Mo. App. W.D. 1998)).

         In the first point, Ms. Rackers argues that the trial court erred in granting Mr. Rackers a 50% discount at Line 11 of Form 14 on the basis that no significant non-duplicated expenses for the minor children existed. She asserts that the comments for use of Line 11 prohibit a discount when the Line 1 income of the parent receiving support was less than $1, 700.00 (where the parent has two children), except where one of two specific exceptions is satisfied. Ms. Rackers asserts that this discount was granted in error because the undisputed evidence shows that her Line 1 income was less than $1, 700.00, and the evidence does not indicate that either of the exceptions to this income threshold was satisfied in this case. We agree.

         We begin our analysis by determining whether the correct values were included in the Form 14 child-support calculation.

In Woolridge v. Woolridge, 915 S.W.2d 372, 379 (Mo. App. W.D. 1996), this court set forth a two-step procedure for the trial court to follow to determine child support awards in compliance with § 452.340, RSMo 2000 and Rule 88.01. Ricklefs v. Ricklefs, 39 S.W.3d 865, 869-70 (Mo. App. W.D. 2001). The Supreme Court approved this procedure in Neal v. Neal, 941 S.W.2d 501, 504 (Mo. banc 1997). Id. In the first step, the trial court "must determine and find for the record, " the presumed child support amount under Form 14. Id. at 870. In the second step, the trial court, "after considering all relevant factors, must determine whether to rebut the [presumed child support amount] as being unjust or inappropriate." ***
In determining the presumed child support amount under the first step of the procedure in Woolridge, the trial court can either accept one of the Form 14 calculations submitted by the parties, or reject both parties' Form 14 calculations and prepare its own Form 14…. The trial court must reject a Form 14 calculation if "1) an item is incorrectly included in the calculation; 2) an amount of an item included in the calculation is incorrect; or 3) the mathematical calculation is incorrect." Woolridge, 915 S.W.2d at 378. To decide whether the presumed child support amount has been correctly calculated in a Form 14, the trial court is "guided by [Form 14]'s directions for completion and comments for use, and the evidence in the case." Id. at 379. On appellate review of the correctness of the presumed child support amount, this court "'review[s] the calculation to ensure that not only [is it] done accurately from a mathematical standpoint, but that the various items and their amounts were properly included in the calculation and supported by substantial evidence.'" Ricklefs, 39 S.W.3d at 870.

McCandless-Glimcher v. Glimcher, 73 S.W.3d 68, 72-73 (Mo. App. W.D. 2002). "Although the second step can be performed without a mandatory worksheet or formula, the first step of calculating the presumed [child support] amount using Form 14 is mandatory. Further, the "formula" to be employed and the factors to be considered in calculating the presumed correct child support amount in a Form 14 is not discretionary." Schumert v. Dreyer, 481 S.W.3d 885, 888-89 (Mo. App. E.D. 2016) (citations, internal quotation marks, and footnote ...

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