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Reinhart v. Reinhart

Court of Appeals of Missouri, Eastern District, First Division

July 10, 2018

DEANNA M. REINHART, Appellant,
v.
TIMOTHY J. REINHART, Respondent.

          Appeal from the Circuit Court of St. Charles County Hon. Erin S. Burlison

          ROBERT G. DOWD, JR, PRESIDING JUDGE

         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 of the original dissolution judgment and that he was able to pay his current child support obligation.[1] Second, Appellant claims the trial court erred in not finding Respondent in contempt for his failure to pay the required amount of child support while the parties' oldest child attended college.

         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, 193 S.W.3d 819, 824 (Mo. App. W.D. 2006) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). "The determination to award a modification in child support lies within the discretion of the trial court, and the trial court's decision will be reversed only for abuse of discretion or misapplication of the law." Id. (internal quotation marks omitted). "We will set aside the judgment on the ground that it is against the weight of the evidence with caution and with a firm belief that the judgment is wrong." Id. (internal quotation marks omitted). "Determining the weight and value given to the testimony of any witness is squarely within the trial court's province." Welker v. Welker, 902 S.W.2d 865, 867 (Mo. App. E.D. 1995). Accordingly, we "accept the evidence and inferences favorable to the prevailing party and disregard all contrary evidence." Id.

         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, 127 S.W.3d 690, 697 (Mo. App. W.D. 2004). In such a case, "a substantial and continuing change in circumstances required to modify child support may be established by other ways." Brown v. Brown, 19 S.W.3d 717, 724 (Mo. App. W.D. 2000).

         Here, there was evidence that Appellant's income increased from $79, 500 at the time of the dissolution to $183, 000 at the time of trial.[2] In addition, Appellant remarried, and there was evidence that her new husband contributed $530 each month to her household expenses.[3] This evidence of changed financial circumstances contributed to the trial court's overall finding of changed circumstances so substantial and continuing so as to make the terms of the original dissolution decree unreasonable and warranted modification. See Section 452.370.1.

         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, 127 S.W.3d at 697 (noting "[a] change in the parties' financial circumstances or in the children's needs may evidence a showing of substantial and continuing change" (emphasis added)). See also Hueckel v. Wondel, 270 S.W.3d 450, 456 (affirming modification based in part on changes in child's need for daycare and counseling); Selby, 193 S.W.3d at 826-27 ("[i]ncreases in the cost of living, which occur with the growth and maturing of children, have been held to constitute substantial and continuing change allowing for modification in child support"); In re Marriage of Angell, 328 S.W.3d 753, 760 (Mo. App. S.D. 2010) (affirming modification partially based upon child's need for ongoing counseling); Keller v. Keller, 224 S.W.3d 73, 78 (Mo. App. S.D. 2007) (affirming modification in part based on evidence of an increase in expenses for the children's extracurricular activities). Here, there was evidence of a change in the children's needs in that the parties no longer paid the $480 in monthly childcare expenses paid at the time of the original dissolution judgment, the parties' oldest child was in college and emancipated and a Sunday overnight was added to Respondent's weekend visitation. This evidence of changes in the children's needs contributed to the trial court's overall finding of changed circumstances so substantial and continuing so as to make the terms of the original dissolution decree unreasonable and warranted modification. See Section 452.370.1. Accordingly, the trial court's modification of Respondent's child support obligation was supported by substantial evidence, was not against the weight of the evidence and did not erroneously declare or apply the law. We find no abuse of discretion or misapplication of the law on this point.

         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, 445 S.W.3d 638 (Mo. App. E.D. 2014). In Abernathy, the parents agreed that the father would pay a higher amount of child support than the Form 14 presumed amount, and the father then sought modification based upon a reduction in child care costs. Id. at 639-40. The Missouri Department of Social Services issued a proposed modification reducing the father's child support obligation, and after an administrative hearing, the agency further reduced his obligation. Id. at 640. The mother appealed to the trial court, which rejected the agency's proposed modification. Id. at 640. On appeal, this Court noted that because the father's child support obligations were based on an agreement between the parties, not the presumed amount, the father "had the heavy burden of proving he is unable to support his child in the manner contemplated at the time of the parties' prior agreement" and that he could no longer afford his originally agreed to child support obligation. Id. at 641 (quoting Brown, 19 S.W.3d at 724) (internal quotation marks and brackets omitted). The Court concluded that "[t]he agency erred as a matter of law by failing to apply this standard, and instead basing its finding of a substantial and continuing change in circumstances on a decrease in [the payee's] child-care costs" and that because the amount of the payor's child support was not based on the presumed amount and was established pursuant to the parties' agreement, "the agency was required to predicate any finding of substantial and continuing change in circumstances on [the father's] inability to pay." Id. at 641, 642.

         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, 19 S.W.3d 717 (Mo. App. W.D. 2000), which did not even discuss the obligor father's inability to pay. In Brown, the mother claimed that the trial court erred in decreasing the father's child support obligation because the father did not show a substantial and continuing change in circumstances that made the original terms of the decree unreasonable and that the decrease in child support was not in the best interests of the children. Brown, 19 S.W.3d at 724. At the time of the original dissolution judgment, the father agreed to pay more than the presumed child support amount, and when he later moved to modify legal custody, the court terminated joint legal custody and awarded the father legal custody of the children, ordered him to pay all the children's extracurricular expenses for the activities in which he enrolled them and decreased child support in accordance with the father's Form 14. Id. at 720. The mother ...


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