Mаrtin Peine appeals the trial court’s judgment modifying the prior judgment that dissolved his marriage to Suanne Peine. In his first point on appeal, Mr. Peine asserts that the trial court erred in failing to abate his child support obligation from August 2003 through December 2004 because his daughter, Emily Peine, failed to comply with the notice requirements of section 452.340.5, RSMo 2000,
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regarding eligibility to continued child support while attending college. In his second point, Mr.
Factual and Procedural Background
The trial court dissolved the parties’ marriage on February 25, 2000. The judgment dissolving their marriage awarded the parties joint legal and physical custody of the parties’ two children, Jeffery, born November 22, 1982, and Emily, born June 18, 1985. The judgment awarded Ms. Peine physical custody, subject to the reasonable visitation rights of Mr. Peine. 2 The judgment also ordered Mr. Peine to pay $900 per month in child support and $500 per month in maintenance.
In May 2001, Jeffery graduated from high school. He enrolled at the University of Missouri-Columbia as a full-time student in August 2001, with an anticipated graduation date in May 2005. Emily graduated from high school in May 2003. She enrolled as a full-time student at Northwest Missouri State University in the fall semester of 2003.
On May 6, 2004, Mr. Peine filed a motion to modify the judgment dissolving his marriage. In his motion, Mr. Peine alleged a substantial and continuing change in circumstances sufficient to justify a change in child support. In particular, Mr. Peine claimed that he did not receive any enrollment information to show that either Jeffery or Emily were attending college or “successfully completed any term in an institution of higher education.” In addition, he alleged that Ms. Peine’s income had increased since the date of the judgment dissolving his marriage to such an extent that the presumed child support amount would deviate by more than twenty percent. Thus, Mr. Peine requested that the court abate his child support “for all months in which he has failed to be notified of the children’s education status, progress or eligibility” and to set an amount of child support commensurate with Supreme Court guidelines. Moreover, based on an alleged change in circumstances regarding Ms. Peine, Mr. Peine sought to have his maintenance obligation terminated or modified to a “nominal amount.”
Following the filing of Mr. Peine’s motion to modify, in June 2004, Emily mailed Mr. Peine a transcript from Northwest Missouri State University, which indicated that she had completed thirteen of sixteen hours for the spring 2004 semester and that she began college in the fall semester of 2003. Prior to this time, neither Emily nor Jeffery provided any documentation to Mr. Peine regarding thеir college enrollment. In addition, on June 7, 2004, Ms.
The trial court held a hearing on the Peines’ motions on December 1, 2004. Thereafter, the trial court entered its judgment modifying its prior judgment of dissolution. The judgment, entered on December 15, 2004, found that during the fall semester of 2002, Jeffery did not complete twelve hours of college credit and failed to рrovide Mr. Peine with the information as required by section 452.340 and, therefore, Jeffery was emancipated as of January 1, 2003. Regarding Emily, the judgment found that from January 1, 2004, to June 30, 2004, Emily had failed to provide Mr. Peine with the information required by section 452.340 to remain eligible for continued child support. Therefore, the judgment ordered that Mr. Peine’s $900 “child support obligation shall abate for the months of January, February, March, April, May and June of 2004.” As a result of the abatement, the judgment ordered that Mr. Peine “shall be given a credit toward his current child support obligation” in the amount of $5400. In addition, the trial court accepted Ms. Peine’s Form 14 presumed child support amount of $812 but, nevertheless, rebutted that amount as being unjust and inappropriate and set Mr. Peine’s child support amount at $1000 per month beginning December 1, 2004. Finally, the trial court’s judgment ordered that Mr. Peine’s maintenance obligation continue at the rate of $500 per month.
On January 4, 2005, Mr. Peine filed a motion for new trial or to set aside the judgment of modification to allow for the introduction of additional evidence. Specifically, Mr. Peine alleged that “to prevent prejudice to [him] and a resulting windfall to [Ms. Peine]” it was necessary to “consider evidence regarding the amount of financial aid received by [Emily] toward her college tuition.” The trial court denied Mr. Peine’s motion. This appeal by Mr. Peine followed.
Standard of Review
This court will review the judgment of the trial court under the standard of review applicable to any other court-tried case.
Eckhoff v. Eckhoff,
Error in Child Support Regarding College Expenses for Fall 2004 Semester
In his first point on appeal, Mr. Peine asserts that the trial court erred in failing to abate his child support obligation from August 2003 through December 2004 because Emily failed to comply with the notice requirements of section 452.340.5 to remain eligible to receive child support. In particular, Mr. Peine contends that because Emily graduated from high school in May 2003, and she failed to provide notice to him of her enrollment at Northwest Missouri State University or her successful completion of at least twelve hours per semester, he was entitled to an abatement of his child support obligation for the fall 2003, spring 2004, and fall 2004 semesters.
In general, a рarent’s child support obligation terminates when the child
If the child is enrolled in an institution of vocational or higher education not later than October first following graduation from a secondary school or completion of a graduation equivalence degree program and so long as the child enrolls for and completes at least twelve hours of credit each semester, not including the summer semester, at an institution of vocational or higher education and achieves grades sufficient to reenroll at such institution, the parental support obligation shall continue until the child completes his or her education, or until the child reaches the age of twenty-two, whichever first occurs. To remain eligible for such continued parental support, at the beginning of each semester the child shall submit to each parent a transcript or similar official document provided by the institution of vocational or higher education which includes the courses the child is enrolled in and has completed for each term, the grades and credits received for each such course, and an official document from the institution listing the courses which the child is enrolled in for the upcoming term and the number of credits for each such course.
In
In re Maniage of Kohring,
the Supreme Court interpreted section 452.340.5 to require “proof of eligibility for parental support on a term-by-term or semester-by-semester basis.”
In his motion to modify filed on May 6, 2004, Mr. Peine alleged that his child support obligation should “be abated fоr all months in which he has failed to be noti
Emily graduated from high school in May 2003. Therefore, the fall 2003 semester was Emily’s first semester in college. Thus, as noted above, to be eligible for continued child support during that semester, Emily needed only to provide notice to Mr. Peine of her enrollment.
Ricklefs,
In addition, this court has previously held that “the circumstances under which child support may be abated are controlled by statute,” and that “abatement is thus impliedly forbidden under all other circumstances.”
Anderson v. Aronberg,
Although Mr. Peine used an incorrect term, it is clear that what Mr. Peine wants is either a refund or he wants a credit toward his future child support obligation. This court in
Rogers,
Similarly, Mr. Peine was “not entitled to a credit against future child suppоrt payments” based on Emily’s failure to provide proper notice of her enrollment in the fall 2003 semester.
Jansen,
This court now turns to the time period covering the fall 2004 semester. Because this semester was Emily’s third semester in college, to remain eligible for continued child support payments, as discussed above, she was required to provide, “at the beginning of [the] semester,” both parents with a transcript or similar official document from the institution showing: “(1) the courses enrolled in; (2) the courses completed for each semester; (3) the grades and credits received for each completed course; and (4) a transcript from the institution listing for the upcoming semester: (a) the courses enrolled in and (b) the number of credits for each course.”
Ricklefs,
In
Owsley,
this court interpreted the phrase, “at the beginning of each semester” found in section 452.340.5.
While the record demonstrated that Mr. Peine continued to pay his child support obligation during the fall 2004 semester, under the above analysis covering the fall 2003 semester, it would appear that Mr. Peine was not entitled to either a refund or a credit of the payments he already made during that time period. Regarding a refund, the same analysis applies as discussed above, i.e., Mr. Peine is not entitled to a refund оf child support payments he made during this time period based on Emily’s failure to comply with the notice requirements of section 452.340.5 because the statute does not provide for a refund and Emily was not emancipated.
Rogers,
Nevertheless, in this case, Mr. Peine is entitled to a credit against his future child support payments for the fall 2004 semester for Emily’s failure to comply with section 452.340.5. As discussed above, “a parent who
voluntarily
exceeds decreed child support payments may not claim credit against future payments.”
Anderson,
No Error in Failure to Make Findings of Fact
In his second point on appeal, Mr. Peine asserts that the trial court erred in deviating upward from the presumed child sup
To determine child support awards in compliance with section 452.340 and Rule 88.01, trial courts are to follow the two-step procedure set forth in
Woolridge v. Woolridge,
In the first step of the
Woolridge
two-step procedure, the trial court can either accept one of the Form 14 calculations submittеd by the parties or reject both of them and make its own calculation.
Under Rule 88.01(b):
Unless a request is filed pursuant to Rule 73.01(c), a written finding or a specific finding on the record by the court or administrative agency that the child support amount under a correctly calculated Form No. 14, after consideration of all relevant factors, is unjust or inappropriate shall be sufficient in a particular case to rebut the presumption that the amount of child support so calculated is correct.
Here, the record contains no request by either party under Rule 73.01(c) for written findings. Absent a request for specific findings, “a trial court in ‘rebutting’ the presumed correct child support amount as being unjust and inappropriate
is not required
to articulate the basis for that finding.”
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Woolridge,
Mr. Peine also claims in his point relied on that the trial court erred in refusing his request to reopen the evidence to consider Emily’s college financial aid package. Mr. Peine, however, does not develop this argument in his brief and cites no authority in support of his assertion. These deficiencies in Mr. Peine’s brief are grounds for this court to find that his claim is abandoned.
Eagle ex rel. Estate of Eagle v. Redmond,
No Error in Failing to Modify Maintenance Award
In his third point on appeal, Mr. Peine asserts that the trial court’s finding that there was no change of circumstances warranting modification or termination of the maintenance award is against the weight of the evidence. Specifically, Mr. Peine contends that the evidence demonstrated that Ms. Peine’s income has increased, her expenses have decreased, and that she is able to meet her needs through appropriate employment. Regarding Ms. Peine’s expenses, Mr. Peine claims that her expenses have decreased, based on the satisfaction of the mortgage payment on the marital home, which was awarded to Ms. Peine in the judgment of dissolution. Mr. Peine also argues that the trial court incorrectly considеred the higher education expenses of Jeffery and Emily as Ms. Peine’s personal expenses.
“A maintenance obligation may be modified only when there is a showing of changed circumstances that are so substantial and continuing that the terms of the original award become unreasonable.”
Goodman v. Goodman,
Here, neither party requested specific findings regarding maintenance and the trial court made no findings. Instead, the trial court’s judgment simply found that there had been “no change of circumstances so substаntial and continuing in nature as to make the terms of the prior Judgment regarding maintenance unreasonable.” Nevertheless, on appeal, Mr. Peine claims that the trial court erred in failing to modify maintenance because it incorrectly found that the costs associated with the children’s education expenses as additional expenses of Ms. Peine. While it is true that Ms. Peine testified that her expenses had increased because of the added expense of paying for college, the trial court expressly took this factor into consideration in increasing Mr. Peine’s
child support payment
from $900 a month to $1000 a month.
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The trial court made no such finding with respect to maintenance and this court will not assume that the trial court considered such costs in its determination that there was no substantial and continuing chаnge in circumstances.
See Judy v. Judy,
Regarding Mr. Peine’s income, at the time of the dissolution in February 2000, Mr. Peine earned between $50,000 and $60,000 a year. At the time of the hearing on Mr. Peine’s motion to modify, Mr. Peine’s year to date income had increased to $94,329 a year. Considering Mr. Peine’s expenses, Mr. Peine testified that, since the dissolution, he has moved to Texas, where his personal property taxes are higher and he pays more for transportation. He further admitted, however, that he pays no state income tax in Texas. Mr. Peine also testified that he pays more in other types of taxes, but the record on appeal сontains no detailed evidence regarding Mr. Peine’s expenses. While Mr. Peine may have presented a detailed listing of his expenses to the trial court, he has not included such evidence in the record on appeal, “as was his duty, and [this court] must presume that its contents were favorable to the [trial] court’s decision and unfavorable” to Mr. Peine.
In re Marriage of Gerhard,
Considering Ms. Peine’s income, the record showed that, at the time of the dissolution, Ms. Peine earned about $8000 a year working for the North Kansas City School District. At the time of the hearing on the motiоn to modify, Ms. Peine’s income had increased, in part, because she began working a second job. Specifically, at the time of the hearing on the motion to modify, Ms. Peine continued to work for the North Kansas City School District during nine months of the year, 30 horn's a week, making $10.70 an hour. In addition, since the dissolution, Ms. Peine has taken a second job at the Parvin Laundromat. At the laundromat, Ms. Peine works twenty
Regarding Ms. Peine’s expenses, Mr. Peine testified that, since the dissolution, Ms. Peine no longer makes a house payment because the mortgage has been paid off. Mr. Peine testified that the еlimination of a mortgage payment is a changed circumstance sufficient to warrant termination of maintenance. In addition, Mr. Peine testified that Ms. Peine is meeting her expenses, that he believes she is in good health, and he knows of no reason why Ms. Peine cannot work full-time.
On the other hand, Ms. Peine testified that, while she no longer has the $460 mortgage payment on her home, she has a home equity loan of about $100 per month, which she obtained to put a new roof on her home. Ms. Peine further testified that she has credit card payments each month for home and car repairs. In regard to her health, Ms. Peine testified that she has several health problems, including diabetes, thyroid problems, and she had triple bypass heart surgery. She further testified that she must continue to work for the North Kаnsas City School District in order to maintain her health insurance to be able to afford her medications and health care. Ms. Peine also testified that, since the divorce, she has not had the time or the financial resources to attend college. As discussed above, however, Ms. Peine has taken a second job in order to obtain additional funds to meet her expenses.
On cross-examination, Mr. Peine attempted to challenge Ms. Peine’s expenses. He claimed that the evidence of Ms. Peine’s expenses showed an amount less than her income and, therefore, she was no longer in need of maintenance. The evidence of her expenses was both by testimony and by exhibits and Mr. Peine has failed to include those exhibits in the record on appeаl. Therefore, as noted above, this court presumes the evidence excluded from the record on appeal is favorable to the trial court’s judgment and unfavorable to Mr. Peine.
In re Marriage of Gerhard,
Here, while the evidence demonstrated that both parties’ incomes have increased since the dissolution and Ms. Peine was no longer required to make a mortgage payment on her home, the trial court was free to believe Ms. Peine’s testimony that she was still in need of maintenance and disbelieve Mr. Peine’s testimony that she was capable of meeting her expenses.
Id.
Indeed, aside from Mr. Peine’s conclusory statements about Ms. Peine’s circumstances, Mr. Peine failed to demonstrate a change in circumstances to justify modification of his maintenance obligation. In fact, the evidence demonstrated a significant increase in Mr. Peine’s income and
In sum, because Emily failed to comply with the notice provisions of section 452.340.5 for the fall 2004 semester, she was not eligible to receive child support during that time period. Therefore, the trial court’s judgment is reversed and upon remand the trial court is directed to amend the judgment to give Mr. Peine an additional credit toward his future child support obligation in the amount of child support he paid during the fall 2004 semester. The trial court’s judgment is affirmed in all other respects.
All concur.
Notes
. All statutory references are to the Revised Statutes of Missouri 2000.
. While the trial court’s judgment dissolving the parties' marriage awarded Ms. Peine "primary physical custody," it should be noted that "primary physical custody" is not a custodial arrangement authorized under law.
See Aurich v. Anrich,
. In this case, the trial cоurt found that Jeffery did not successfully complete twelve credit hours in the fall 2002 semester and, therefore, was emancipated as of January 1, 2003. This ruling is not challenged on appeal.
. While the trial court’s judgment "abated” Mr. Peine’s child support obligation from January 2004 to June 2004, because at the time of the trial court’s judgment Mr. Peine had already paid his child support payments covering this time period, the trial court incorrectly used, and Mr. Peine incorrectly requested, that his child support obligation be "abated.” As discussed below, a parent is not entitled to an “abatement” of child support for failure to comply with the notice provisions of section 452.340.5. The trial court’s ruling with respect to its "abatement" and corresponding "credit" for the months of January to June 2004, howevеr, is not challenged on appeal.
. Section 452.370.4. provides:
Unless otherwise agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child. The parent entitled to receive child support shall have the duty to notify the parent obligated to pay support of the child’s emancipation and failing to do so, the parent entitled to receive child support shall be liable to the parent obligated to pay supportfor child support paid following emancipation of a minor child, plus interest.
. Rule 78.07(c), which requires that an allegation that the trial court failed to make statutorily required findings must be raised in a motion to amend the judgment to preserve the issue for appeal, was not in effect until January 1, 2005.
. In his brief, Mr. Peine also suggests that the trial court erred in failing to either reject or rebut his Form 14 calculation. The trial court, however, is not required to reject or rebut both parties' Form 14s but, rather, may accept one of the parties’ Form 14s or, alternatively, calculate its own Form 14. Here, as discussed below, the trial court accepted Ms. Peine’s Form 14 as the presumed child support amount and, therefore, was not required to either accept or reject Mr. Peine's Form 14.
. See also Section 452.340.9 (“There shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of the guidelines established pursuant to subsection 8 of this section is the correct amount of child support to be awarded. A written finding or specific finding on the record in a judicial or administrative proceeding that the application of the guidelines would be unjust or inappropriate in a particular case, after considering all relevant factors, including the factors set out in subsection 1 of this section, is required if requested by a party and shall be sufficient to rebut the presumption in the case. The written finding or specific finding on the record shall detail the specific relevant factors that required a deviation from the application of the guidelines.”) (Emphasis added).
. Specifically, in increasing Mr. Peine’s child support amount, the trial court found that there had "been an increase in the cost of supporting” Emily "since the Judgment was entered, as she is now older, attending college, thereby increasing the cost of her support.”