Recent Case: JK v. JK WD74592

Father appeals from a judgment entered in the Circuit Court of Cole  County granting Mother’s motion to modify child support. In its judgment, the circuit court found that a substantial and continuing change in circumstances had occurred including, but not limited to: (1) an agreement by the parties to exercise a "visitation" schedule different than that ordered by the court, (2) a change in the incomes of the parties giving rise to a change of more than twenty percent in the presumed child support amount, and (3) the passage of more than three years since the last modification. The circuit court averaged Father’s gross yearly income from the previous four years, but did not consider bonus or interest income. The court found that Father was not entitled to a line 11 credit for overnight visitation because Mother’s gross income fell below the $2,100.00 threshold for a parent with four children. The court also altered the previous division of the dependency tax exemptions to award Mother.

HOLDING: REVERSED AND REMANDED.

Where the prior child support amount was established based upon a stipulation by the parties that a jointly prepared Form 14 was accurate and represented the amount of child support that is just, reasonable and appropriate under the circumstances and the trial court found that the Form 14 was accurate and represented an amount of child support that is just, reasonable, and appropriate under the circumstances, the trial court cannot be deemed to have implicitly found the Form 14 amount to have been rebutted. Because the prior judgment establishing the child support amount was based upon the presumed amount pursuant to the child support guidelines, the twenty percent provision of § 452.370.1 was applicable to this case (The 20% rule applies if and when the Form 14 presumed support amount is used).

Mother’s petition averred a substantial and continuing change in the circumstances based upon a twenty-percent change in the presumed child support amount as provided for in § 452.370.1 and, therefore, sufficiently pleaded her claim.

The trial court did not abuse its discretion in determining that Mother was not underemployed where she testified that she obtain more than 32 to 35 hours per week with her employer, that she had the children 90% of the time despite the parenting plan, and that Father had asked her to quit working a waitressing job she had so she could watch the children on one of the nights Father was supposed to have the children.

The trial court erred in failing to include interest income earned by Mother, and because of that fact, Mother actually earned sufficient income over the threshold for Father to receive an overnight credit on line 11.

Because circumstances might change, the trial court’s award of all four dependency exemptions to Mother cannot be deemed improper per se. However, neither equity nor the best interests of the children can be served by taking away exemptions previously granted to Father only to have one or both go unused, as the evidence reflects is highly likely to occur in this case. Bearing this in mind, on remand, the trial court may re-evaluate its award of all dependency exemptions to Mother and attempt to structure the award to maximize the overall financial benefit of the exemptions to the family unit.

The trial court was not required to accept Father’s testimony about bonuses he had received and the likelihood of receiving similar bonuses in the future as credible.

 

Because the judgment would allow for Father to seek credit for amounts he voluntarily paid in addition to the prior child support amount during the retroactive period of the modification of the child support award and the issue has yet to be decided by the trial court, the issue is not ripe for appellate review; however, the trial court is free to address the issue of such credit on remand