Victoria L. Frawley v. Matthew J. Frawley ( 2020 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
VICTORIA L. FRAWLEY, )
Respondent, )
)
v. ) WD82442
)
MATTHEW J. FRAWLEY, ) FILED: February 11, 2020
Appellant. )
Appeal from the Circuit Court of Platte County
The Honorable W. Ann Hansbrough, Judge
Before Division Three: Alok Ahuja, P.J., and
Anthony Rex Gabbert and Thomas N. Chapman, JJ.
In 2013, the Circuit Court of Platte County entered a judgment dissolving the
marriage of Matthew J. Frawley (“Father”) and Victoria L. Frawley (“Mother”). The
dissolution decree awarded Mother sole legal and sole physical custody of the
couple’s two children, and ordered Father to pay $505 per month in child support.
Father filed a motion to modify the child custody and child support provisions
of the decree. Mother filed a counter-motion seeking to increase Father’s child
support obligation, and a motion to hold Father in contempt for failing to satisfy his
existing support obligations. After a bench trial the circuit court declined to modify
the existing custody arrangement, but altered the visitation provisions of the
original decree. The circuit court increased Father’s child support obligation to
$554 per month. The circuit court held Father in contempt for failing to pay his
share of the children’s previously incurred extracurricular and unreimbursed
medical expenses. It also awarded Mother $10,000 in attorney’s fees, and ordered
Father to pay two-thirds of the fees of the Guardian ad Litem.
Father appeals, asserting nine Points. We reject eight of his claims. We find,
however, that the circuit court erred in calculating Father’s modified child support
obligation, by failing to give him credit for another child over whom he has primary
physical custody. We accordingly reverse the child support provisions of the
modification judgment, and remand for further proceedings concerning Mother’s
motion to modify child support. In all other respects, the judgment is affirmed.
Background
Father and Mother were married in 2008. They have two children together,
both boys, who are currently 8 and 10 years old.
On March 7, 2013, the Circuit Court of Platte County entered a judgment
dissolving the parties’ marriage. The dissolution decree awarded Mother sole legal
and sole physical custody of the couple’s two sons. The court did so in consideration
of Father’s “psychological problems and [his] refusal to address said problems
properly through therapy and/or medication.” The decree granted Mother discretion
to allow Father “either unsupervised or supervised visitation” “in light of Father’s
psychological difficulties,” at “all reasonable times and places” as Mother
determined.1 The circuit court also ordered Father to pay $505 per month in child
support, and ordered that the parties equally share health care costs for the
children that were not otherwise covered by Mother’s medical insurance, and the
costs of the children’s extracurricular activities.
1 We question the validity of the parenting plan in the circuit court’s original
dissolution judgment, given its vagueness concerning Father’s visitation rights, and the
virtually unfettered discretion given to Mother to grant or withhold visitation. See, e.g.,
Clark v. Clark, 568 S.W.3d 920, 923 (Mo. App. S.D. 2019) (reversing provisions of
dissolution decree which delegated authority to a third party to determine when and how
mother could exercise visitation); Kamler v. Kamler, 213 S.W.3d 185, 188–89 (Mo. App. E.D.
2007) (reversing dissolution decree which granted father supervised visitation only “at such
times approved by the mother,” on the grounds that it was “vague and unenforceable,” and
in violation of § 452.400.1(1), RSMo, which required “an order specifically detailing the
visitation rights of the parent without physical custody rights”). Father did not appeal the
original dissolution decree, however, and the validity of its visitation provisions is not
presently before us.
2
On June 10, 2016, Father filed a motion to modify the child custody and child
support provisions of the original decree. He argued that, in light of a substantial
and continuing change of circumstances since entry of the original decree, the court
should order that Mother and Father exercise joint legal and joint physical custody
of their children. He also argued that, as a result of this changed custody
arrangement, his child support obligation should be modified and reduced.
On July 1, 2016, Mother filed a counter-motion to modify Father’s child
support obligation, arguing that his support obligation should be increased because
Father has “obtained a full-time job and is making significantly more money” than
at the time of the original decree. On the same day, Mother also filed a motion
asking the court to order that Father undergo a psychological and physical
examination.
At Mother’s request, the circuit court appointed a Guardian ad Litem to
represent the interests of the children. The circuit court also ordered that Father
undergo a psychological and parenting examination with Dr. Aileen P. Utley.
On December 29, 2016, Mother filed an amended motion to modify, which
added an allegation that Father had “not fulfilled his child support obligation”
under the existing dissolution decree. Mother filed a motion to hold Father in
contempt based on the same contentions in January 2017.
On August 3, 2017, the court granted Father’s second attorney’s motion to
withdraw, over Father’s objection. From that point forward, Father (who is himself
a lawyer) proceeded pro se. Father has also represented himself in this appeal.
The circuit court heard evidence on the parties’ respective motions to modify
and for contempt on six days between December 2017 and November 2018. The
court entered its final modification judgment on January 3, 2019. The modification
judgment found that:
3
Since the date of the Judgment and Decree for Dissolution of
Marriage, there have been changed circumstances so substantial and
continuing as to make the terms of said Judgment and Decree for
Dissolution of Marriage unreasonable in regard to child support,
custody and Parenting Time. The continuing and substantial changed
circumstances included but are not limited to the following:
a. [Father] has relocated his residence from the Kansas City
Metropolitan Area to Jefferson City, Missouri;
b. [Father] has engaged in a course of behavior which would
endanger the children’s physical health or impair their emotional
development if [Father] engages in unsupervised contact with the
children, to wit:
i. [Father] uses a medication which two qualified
medical professionals have stated causes increased psychosis in
[Father];
ii. [Father] fails to have insight on his own mental
health condition and fails to follow proper treatment protocol; and
iii. [Father] fails to share his prior medical records
with his current treating medical professional resulting in his
symptoms not being properly managed.
c. [Father] has engaged in [a] course of behavior during this
litigation that shows a lack of stability in his mental health including
but not limited to erratic filing of motions during the course of trial,
[and] threats both direct and indirect against this Court, Counsel for
[Mother], and the Guardian ad Litem.
d. [Father] has obtained new employment and as a result
that the application of the Missouri Child Support Guidelines and
criteria set forth in Supreme Court Rule 88.01 would result in a change
of the existing child support in an amount of 20 percent or more.
The modification judgment continued to give Mother sole legal and sole physical
custody of the children. As opposed to the original decree which gave Mother sole
discretion over Father’s visitation rights, however, the modification judgment
specified that Father would have solely supervised visitation, based on the court’s
conclusion that “Unsupervised Parenting Time with [Father] would endanger the
children’s physical health or impair their emotional development.” The parenting
plan incorporated into the modification judgment detailed when and where Father
4
was entitled to exercise his parenting time, including weekly visitation and a
holiday schedule.
The circuit court also modified Father’s child support obligation, increasing it
to $554 per month. The court found Father in contempt for failing to pay $6,352.03
as his share of the children’s past extracurricular and uninsured medical expenses,
and ordered him to purge this contempt by paying an additional $200 per month
until the arrearage was satisfied. The circuit court awarded the Guardian ad Litem
$10,959.62 in fees, and ordered Father to pay two-thirds of those fees, or $7,306.34.
The court also awarded Mother $10,000 in attorney’s fees.
Father appeals, raising nine claims of error.2
Standard of Review
On review of a modification judgment, as with any other court-tried case, we
must “affirm the circuit court’s judgment unless it is unsupported by substantial
evidence, it is against the weight of the evidence, or it erroneously declares or
applies the law.” Querry v. Querry, 382 S.W.3d 922, 925–26 (Mo. App. W.D. 2012)
(citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. 1976)). “We accept all reasonable
inferences and evidence favorable to the [modification] order and disregard all
contrary inferences.” Kunce v. Kunce, 459 S.W.3d 443, 446 (Mo. App. W.D. 2015)
(citation and internal quotation marks omitted). We also defer to the circuit court’s
credibility judgments, since “[t]he trial court may believe or disbelieve all, part, or
2 Mother filed a motion to dismiss Father’s appeal based on his failure to
comply with the procedural requirements of Rule 84.04 in his amended appellant’s brief.
Pro se parties are subject to the same procedural rules as represented litigants. Johnson v.
Mo. Dep’t of Corrs., 534 S.W.3d 869, 871 (Mo. App. W.D. 2017). While compliance with Rule
84.04 is mandatory, Franklin v. Ventura, 32 S.W.3d 801, 803 (Mo. App. W.D. 2000),
dismissing an appeal for failing to comply with Rule 84.04 is within this Court’s discretion.
State v. McDaniel, 236 S.W.3d 127, 132 (Mo. App. S.D. 2007). We prefer wherever possible
to dispose of a case on the merits. Morris v. Wallach, 440 S.W.3d 571, 575 n.4 (Mo. App.
E.D. 2014). Although Father’s brief is procedurally deficient in some respects, we are able
to discern his arguments, and will address those arguments on the merits. Mother’s motion
to dismiss is denied.
5
none of the testimony of any witnesses.” Id. (citation and internal quotation marks
omitted).
Discussion
I.
Father’s first Point challenges the admission into evidence of exhibits offered
by Mother pertaining to his mental health status and treatment. Specifically,
Father challenges the admission of Exhibits 2 and 113, which are a business records
affidavit, and the associated psychological evaluation report prepared by Dr. Aileen
Utley.3
Dr. Utley was appointed by the court to conduct a psychological and
parenting assessment of Father. Father argues that Exhibits 2 and 113 were
improperly admitted for multiple reasons. Among other things, he argues: that
Mother failed to comply with the business records affidavit statute, § 490.692,
RSMo, because Dr. Utley’s report was not attached to the business records affidavit
Mother served on him; that Dr. Utley’s report does not qualify as a business record
subject to the statute; that Dr. Utley was not qualified to render the opinions
described in the report; and that Dr. Utley’s report constitutes impermissible expert
testimony concerning Father’s credibility.
3 Father also asserts error as to the admission of Exhibits 110 and 112, which
are a compilation of Father’s mental health records from Tri-County Mental Health
Services, Inc., under the care of Dr. Parimal Purohit; and ten pages of handwritten notes by
Dr. Samuelson, who also provided Father with mental health services. At trial, Father
stated he did not “have any objection with the Purowit [sic] records,” and he therefore failed
to preserve any claim of error as to Exhibit 110. At trial, Father’s only objections to Exhibit
112 were that it was not complete, and that it was inadmissible in this modification
proceeding because it concerned Father’s mental health prior to entry of the original
dissolution decree. Father did not preserve in the circuit court his current claim: that
Exhibits 110 and 112 were “not served on Father until the third day of trial.” The
argument concerning belated disclosure of these exhibits was also not included in Father’s
Point Relied On, and is therefore not properly before us for that reason as well. Curl v.
BNSF Ry. Co., 526 S.W.3d 215, 228 n.1 (Mo. App. W.D. 2017).
6
What is notably absent from Father’s briefing, however, is any developed
argument that he was prejudiced by the admission of Dr. Utley’s report. We do not
reverse circuit court judgments based merely on the existence of an erroneous
ruling; instead, Rule 84.13(b) specifies that “[n]o appellate court shall reverse any
judgment unless it finds that error was committed by the trial court against the
appellant materially affecting the merits of the action.” (Emphasis added.)
Consistent with this general principle, caselaw holds that “the erroneous admission
of evidence in a court-tried case is not grounds for reversal as long as there is
substantial admissible evidence in the record to support the judgment.” C.S. v. Mo.
Dep’t of Soc. Servs., 491 S.W.3d 636, 646 (Mo. App. W.D. 2016) (citation and
internal quotation marks omitted). “Missouri Courts have described this standard
as being ‘practically impossible’ to meet.” S.M.S. v. J.B.S., 588 S.W.3d 473, 509
(Mo. App. E.D. 2019) (citations omitted).4
Father does not argue that the circuit court’s modification judgment is
unsupported by substantial evidence if Dr. Utley’s report is disregarded. Nor could
he plausibly make such an argument. The circuit court may order supervised
visitation where it finds that unsupervised visitation “would endanger the child’s
physical health or impair his or her emotional development.” § 452.400.1, RSMo;
see also, e.g., Baker v. Gonzalez, 315 S.W.3d 427, 433 (Mo. App. S.D. 2010) (holding
that “[t]his ‘endangerment-impairment standard’ applies to an order for supervised
4 See also, e.g., Andrews v. Andrews, 452 S.W.3d 150, 154 (Mo. App. W.D. 2015)
(finding no basis for reversal of circuit court judgment refusing to authorize mother’s
relocation with children, even assuming guardian ad litem’s report was erroneously
admitted, where “the record is replete with sufficient competent evidence to support the
court's judgment”); Rathbun v. CATO Corp., 93 S.W.3d 771, 785 (Mo. App. S.D. 2002)
(“[T]he erroneous admission of evidence is ‘scarcely ever’ grounds for reversal in a court-
tried case,” “except where it appears from the record that the court relied on the evidence
and that no other competent evidence supports the judgment.”); Love v. Love, 72 S.W.3d
167, 173–74 (Mo. App. S.D. 2002) (finding no basis for reversal of child custody provisions of
dissolution decree, even assuming that admission of guardian ad litem’s report was
erroneous, because “the custody provision of the decree is [otherwise] supported by
substantial evidence”).
7
visitation.” (citing Buschardt v. Jones, 998 S.W.2d 791, 799 (Mo. App. W.D. 1999)).
Under § 452.400.2, this standard must be satisfied in a modification judgment,
where a modified parenting plan “restrict[s] or limit[s] one party's visitation rights
compared to their visitation rights under the original [judgment].” Turley v. Turley,
5 S.W.3d 162, 165 (Mo. 1999). In this case, although the original dissolution decree
authorized Mother to require Father’s visitation to be supervised, the circuit court
only mandated supervised visitation in the modification judgment. We therefore
assume for purposes of this opinion that the evidence was required to satisfy the
endangerment-impairment standard.
Substantial evidence – separate and apart from Dr. Utley’s report – supports
the circuit court’s finding that unsupervised visitation with Father would endanger
the children’s physical health, or impair their emotional development. In justifying
supervised visitation in this case, the modification judgment refers to the circuit
court’s own observation of Father’s behavior in the course of this litigation. The
judgment finds that Father’s “erratic filing of motions” and direct and indirect
threats against the court, opposing counsel, and the Guardian ad Litem “shows a
lack of stability in his mental health.” The judgment also refers to Father’s “hostile
and disagreeable attitudes” while being questioned during trial.
The modification judgment also cites Father’s erratic, aggressive or troubling
behavior in his interactions with Mother, her fiancé, and the children, including:
sporadic exercise of visitation; refusing to return the children to Mother after his
visitation time had ended; unilaterally enrolling the children in a parochial school,
even though Mother had been awarded sole legal custody; conflict and expressions
of anger towards Mother’s fiancé as he interacted with the children, including “one
occasion [when Father] went into a rage and insisted that the fiancé move when one
of the boys was on his lap”; a “road rage” incident with the children in Father’s car;
8
and Father “demeaning [Mother], bullying her and name-calling” during Father and
Mother’s communications.
Finally, the circuit court had substantial evidence concerning Father’s mental
health condition and treatment, separate and apart from Dr. Utley’s report. This
evidence included medical records of Father’s treatment by multiple other mental
health professionals, and Father’s and Mother’s testimony. Father in his testimony
acknowledged that he was taking a medication for Attention Deficit Hyperactivity
Disorder (“ADHD”) which two of his previous physicians had advised him not to
take because it increased his psychotic symptoms (although Father contended that
he was now taking a delayed- rather than immediate-release form of the
medication). Father also admitted in his testimony that his current treating
psychiatrist had not had access to all of the treatment records from his care by an
earlier psychiatrist.
The record here contains substantial other evidence – separate and apart
from Dr. Utley’s report – that supports the trial court’s judgment that unsupervised
visitation would endanger the children’s physical health or emotional development.
Therefore, the admission of Dr. Utley’s report – even if erroneous – would not justify
reversal. Point I is denied.
II.
In his second and third Points, Father argues that the trial court erred in
excluding an audio recording he made of one of the children’s baseball games, and
in refusing to permit Father to make an offer of proof as to the content of the
recording.
On the second day of trial, Father offered the audio recording into evidence.
He testified that he made the recording “specifically because [Mother] at this time
has been saying lie after lie after lie which my testimony already establishes. So I
wanted proof, if she makes any allegations whatsoever, that I did not do anything
9
inappropriate.” In offering the audio recording, Father initially testified that he
started the audio recording on his iPhone 5 smartphone when he arrived at the
baseball field; that he stopped the recording when the game ended; that he
transferred the recording (by e-mail) from his smartphone to his desktop computer;
and that he transferred copies of the recording from his computer onto three
compact discs (which he had provided to opposing counsel, the Guardian ad Litem,
and to the court). Father contended that the recording was probative to establish
that Mother had belittled him at the game, had withheld visitation with the
children from him, and had alienated the children’s affections. He also contended
that the recording would disprove Mother’s claims that he had upset the children at
the game, and had acted aggressively toward Mother’s fiancé.
Mother’s counsel objected on the basis that “there’s no way to tell the veracity
of this recording[,] . . . [or] if certain things were removed or added,” and that the
recording was over an hour long and would occupy considerable trial time to play.
Father then repeated that he started the recording when he arrived at the game
and stopped it when he was leaving, and that “[t]his document has not been edited
whatsoever.” When the circuit court informed Father that it did not believe an
adequate foundation had been laid for the recording, he added to his prior testimony
that his smartphone, computer and compact discs were continuously in his custody
and control at all relevant times, and that “[t]he video [sic] recording has not been
altered in any form.” Again, the court expressed concern that “there is an element
of the foundation that [Father] ha[s] not established,” and sustained Mother’s
foundation objection.
After a short recess, the circuit court permitted Father an additional
opportunity to lay a proper foundation for the recording. Father “renew[ed]
everything” he had said previously, and added that “the phone was working in all
aspects prior to the time in which I made the recording,” that the “speakers on the
10
audio” were Mother, Father, and the two minor children, and finally that “the
device was properly working.” Mother’s counsel again objected, and the trial court
sustained the objection and excluded the recording.
On the next day of trial, after hearing several preliminary motions, Father
sought permission from the court to make an offer of proof concerning the contents
of the audio recording. After hearing objections from Mother’s counsel and the
Guardian ad Litem, the circuit court ruled that it would not accept as an offer of
proof anything beyond what Father had previously stated when attempting to
introduce the audio recording into evidence.
We review the trial court’s decision to exclude the audio recording for an
abuse of discretion. NorthStar Educ. Fin., Inc. v. Scroggie, 581 S.W.3d 641, 644
(Mo. App. W.D. 2019). “An evidentiary ruling is an abuse of discretion only if it is
clearly against the logic of the circumstances then before the court and is so
unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of
careful, deliberate consideration.” Menschik v. Heartland Reg’l Med. Ctr., 531
S.W.3d 551, 557 (Mo. App. W.D. 2017) (citation and internal quotation marks
omitted).
In State v. McFadden, 369 S.W.3d 727 (Mo. 2012), the Missouri Supreme
Court explained that, to
[e]stablish[ ] a proper foundation for the admission of a tape-recorded
conversation, one must demonstrate:
(1) the device was capable of recording accurately; (2) the
operator of the recording device was competent to operate it;
(3) the recording is authentic and correct; (4) changes, additions
and deletions have not been made to the recording; (5) the
recording has been preserved in an acceptable manner; (6) the
speakers are identified; and (7) the conversation was voluntary
and without inducement.
Id. at 752 (quoting State v. Fletcher, 948 S.W.2d 436, 439 (Mo. App. W.D. 1997)
(citing State v. Wahby, 775 S.W.2d 147, 153 (Mo. banc 1989))).
11
Although Father’s testimony may have established several of the required
foundational elements for admission of an audio recording, he never offered
testimony as to one critical, and central, issue: whether “the recording [was]
authentic and correct.” Father testified to the manner in which the recording was
made, and to the chain of custody of the recording from his smartphone to the
compact discs on which the recording was now housed. He never testified, however,
that he had listened to the recording, or that the recording in fact fairly and
accurately depicted the events at his children’s baseball game. Father’s failure to
explicitly testify that the recording was accurate is particularly glaring given the
objection from Mother’s counsel as to “the veracity of this recording.” While the
circuit court gave Father multiple opportunities to supply the missing foundational
element, he failed to do so. In these circumstances, we cannot find that the circuit
court abused its discretion in excluding the recording. Given this fundamental,
foundational defect in Father’s proffer, we need not address his separate claim that
the circuit court erred by refusing to permit him to make an offer of proof
concerning the recording’s contents.5
Points II and III are denied.
III.
In his fourth Point, Father argues – on multiple grounds – that the circuit
court erred in finding him to be in contempt of the dissolution decree, for failing to
satisfy his obligation to reimburse Mother for 50% of the children’s extracurricular
and unreimbursed medical expenses.
The modification judgment states:
5 While we need not decide the offer of proof issue, we emphasize that even if
the circuit court is firmly persuaded that proffered evidence is inadmissible, it should
permit an offer of proof except in unusual circumstances “to preserve for the appellate
courts’ review a record of what evidence was offered but rejected.” State ex rel. Praxair, Inc.
v. Mo. Pub. Serv. Comm’n, 344 S.W.3d 178, 185–86 (Mo. 2011).
12
[Father] is found to be in contempt of the Judgment and Decree of
Dissolution of Marriage for willfully and maliciously failing to
reimburse [Mother] for uninsured medical expenses and
extracurricular expenses in the amount of $6,352.03. [Father] shall
purge himself of this contempt by mailing a payment of $200.00 per
month, post-marked on or before on the 15th day of each month,
beginning January 15, 2019, to [Mother] until the amount in full has
been paid. Failure by [Father] to make said payments to [Mother]
could result in incarceration in the Platte County Detention Center
until such time as he purges himself of this contempt.
Thus, the modification judgment finds that Father failed to satisfy his support
obligations under the original dissolution decree, and threatens him with potential
future incarceration if he fails to purge his contempt in the manner specified. The
judgment does not, however, actually order Father’s incarceration. For this reason,
his appeal of the contempt finding is premature.
Civil contempt orders are appealable only when they become final. In re
Marriage of Crow & Gilmore, 103 S.W.3d 778, 780 (Mo. 2003). “For purposes of
appeal, a civil contempt order is not final until [it is] enforced.” Id. at 781 (citations
and internal quotation marks omitted; collecting cases). Civil contempt orders are
enforced in two ways. If the remedy is by a fine, a civil contempt order is enforced
“when the moving party executes on the fine.” Id. Alternatively, if the remedy for
contempt is imprisonment, the contempt order is enforced at the time a court issues
an order of commitment based on the contempt, or when the contemnor is actually
imprisoned. Id. at 781–82; see also Carothers v. Carothers, 337 S.W.3d 21, 25 (Mo.
2011). In Crow, the Supreme Court held that “the contempt order was not enforced”
and was therefore not appealable, where – as here – “[b]y the words of the
‘judgment,’ incarceration was conditioned on Husband’s failure to purge the
contempt within 60 days. If he failed, the court could impose incarceration by
issuing an order of commitment.” 103 S.W.3d at 782; accord In re Marriage of
Kimball, 583 S.W.3d 450, 454–55 (Mo. App. S.D. 2019); Navarro v. Navarro, 504
S.W.3d 167, 174 (Mo. App. W.D. 2016); Davis v. Davis, 475 S.W.3d 177, 183 (Mo.
13
App. W.D. 2015) (dismissing appeal of contempt ruling where “although the
contempt judgment contained a threat of incarceration, no warrant of commitment
to jail was ever entered”).
At the time this appeal was filed, the circuit court had found Father in
contempt, but had not enforced the contempt order by issuing an order of
commitment or actually incarcerating Father. Father’s arguments in this appeal
concerning the validity of the contempt finding are premature, and we do not
consider them.
IV.
In his fifth Point, Father argues that the circuit court erred in calculating his
modified child support obligation. Specifically, Father argues that, in calculating
the presumed child support amount which Father was then ordered to pay, the
court failed to provide Father with credits (against his gross income): (1) for a child
born to Father and his current wife after the original dissolution decree, whom he
supports, and who primarily resides with him; (2) for health insurance which
Father purchased on behalf of the children; and (3) for overnight visitation Father
has exercised with the children.
At trial, both parties submitted their own Form 14s for the circuit court to
review. The trial court rejected the parties’ Form 14s, and instead prepared its
own. Using its Form 14, the circuit court calculated a presumed child support
amount of $554 per month. The court used this calculated amount to increase
Father’s child support obligation from $505 per month (as specified in the original
dissolution decree) to $554 per month.
“When determining the amount of child support to be paid, the application of
Rule 88.01 and Form 14 is mandatory.” Monnig v. Monnig, 53 S.W.3d 241, 248 (Mo.
App. W.D. 2001) (citation and internal quotation marks omitted). “Courts are
permitted to either adopt a Form 14 of the parties or create their own.” M.L.R. v.
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Jones, 437 S.W.3d 404, 406 (Mo. App. S.D. 2014) (citation omitted). In either case,
the Form 14 “amount must be calculated in conformity with the Supreme Court’s
directions for its use.” Monnig, 53 S.W.3d at 248 (citation omitted). On appeal, we
review “the correctness of the presumed child support amount . . . 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.” Rackers v. Rackers, 500 S.W.3d 328, 334–35 (Mo. App. W.D.
2016) (citation and internal quotation marks omitted).
A.
Father first argues that the circuit court erred by failing to give him a credit
under Line 2(c) of Form 14 for another child he supports. Father argues he is
entitled to a credit for a daughter born to Father and his current wife in July 2018,
after the initial dissolution decree. Mother responds that, because Father is “the
moving party” in this modification proceeding, he is not entitled to a Line 2(c)
adjustment. We agree with Father that the circuit court erred in failing to award
him a credit on Line 2(c) for his new child.
Line 2(c) provides an adjustment to a parent’s monthly gross income, by
reducing the parent’s gross income on account of the parent’s “[m]onthly support
obligation for other children.” “In Line 2(c), Form 14 ‘provides for an adjustment to
the gross income for other children who are not part of the current proceeding for
which a party has primary physical custody.’” M.L.R., 437 S.W.3d at 407 (citations
omitted).
The comment for Line 2(c) explains when a credit for support for other
children is warranted. It states:
(1) In any action to decrease child support, a parent obligated
to pay support shall not be entitled to a line 2(c) credit for children
born to or adopted by the parent obligated to pay support after the
entry of the current order. However, the parent obligated to pay
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support will be allowed a line 2(c) credit for children that have
remained primarily residing with the parent obligated to pay support
from prior to the existing order.
(2) In any action to increase child support, a parent obligated
to pay support shall be entitled to a line 2(c) credit for children born to
or adopted by the parent obligated to pay support after the entry of the
current order. However, the use of the credit alone cannot act to
reduce the current support amount in the action in question.
(Emphasis added.)6
Thus, under the official comments to Line 2(c) of Form 14, Father would be
entitled to a credit against his gross monthly income for his support obligation for
children born or adopted after the initial dissolution decree, “[i]n any action to
increase child support.” Such a credit would not be available, however, “[i]n any
action to decrease child support.” Mother argues that, because “Father was a
moving party in this action [he is] not entitled to credit for his after-born child.” We
disagree.
There is no question that Father initiated these proceedings by filing a
motion to modify “Child Custody and Custody Time.” In his motion, Father asked
for a “review of child support,” and a reduction in his support obligation, as a result
of the altered custody arrangement he proposed. In addition to opposing Father’s
motion, Mother filed her own motion to modify child support, seeking an increase in
Father’s child support obligation due to changed circumstances, including Father’s
new employment.
6 The current comment to Line 2(c), which has been in effect since January 1,
2014, is worded differently than the earlier comment. The earlier comment denied a Line
2(c) credit for later-born and later-adopted children to “the moving party,” “in an action to
increase or decrease the support payable under an existing order.” Cases decided under the
earlier comment held that a paying parent who had moved to modify his or her child
support was not entitled to a Line 2(c) credit for later-born children, even if the circuit court
denied the paying parent’s motion to modify, and instead granted the recipient parent’s
cross-motion. See, e.g., Cross v. Cross, 318 S.W.3d 187, 195–96 (Mo. App. W.D. 2010).
Because the current comment does not deny credit to any parent who is a “moving party,”
and allows the credit in “any action to increase child support,” cases decided under the
earlier version of this comment are no longer relevant to the issue we address.
16
The comment to Line 2(c) does not define the phrase “any action to increase
[or to decrease] child support.” We conclude, however, that the phrase must be read
to refer to each separate motion to modify child support which a circuit court
addresses. The intent of the comment to Line 2(c), and the limitation it places on
the availability of a credit, seems clear: a parent may not seek to reduce their child
support obligation for existing children, by invoking their newly incurred obligation
to support later-born or later-adopted children; on the other hand, a parent’s pre-
existing child support obligation cannot be increased without taking account of any
additional support obligations the parent has since incurred.
It is a common occurrence that parents file cross-motions to modify child
support, with the paying parent seeking a reduction in their support obligation,
while the recipient parent seeks an increase. We do not believe the availability of
the Line 2(c) credit should depend on which motion was filed first. Instead, the
comment to Line 2(c) makes clear that a paying parent cannot rely on a new child to
seek to reduce their pre-existing support obligations, but that the recipient parent
cannot seek an increase in child support while ignoring the fact that the paying
parent now has additional support obligations. Where a parent files a motion to
increase the other parent’s child support obligation – whether as an original motion
or as a counter-motion – the paying parent is entitled to a Line 2(c) credit for
children born or adopted after the original child support order.
Here, the circuit court denied Father’s motion to modify the child custody
arrangement, and his associated motion to reduce his child support accordingly.
Based on Father’s new employment, the circuit court instead granted Mother’s
motion to modify, which sought to increase Father’s support obligation. Because
Mother’s motion was an “action to increase child support,” the circuit court was
required to give Father a Line 2(c) credit for his support obligation to his new child.
17
Accordingly, we reverse the trial court’s upward modification of Father’s child
support obligation, and remand with instructions that the court recalculate Father’s
presumed child support including a Line 2(c) adjustment for Father’s other child,
and such further proceedings as may be required on Mother’s motion to modify.
B.
Father next argues the trial court erred in its calculation of his presumed
child support amount, because it “refus[ed] to give Father a credit [on Line 6(c) of
Form 14] . . . for the pro rata cost of purchasing health insurance on behalf of the
minor children.”
Line 6(c) provides a credit for “[h]ealth insurance costs for the children who
are subjects of this proceeding.” In Harris v. Parman, 54 S.W.3d 679 (Mo. App. S.D.
2001), the Southern District held that it was error for a circuit court to allow a
parent a credit on Line 6(c) for the cost of health insurance, when the other parent
had been ordered by the court to provide health insurance for the parties’ children.
Id. at 690.
In this case, the original dissolution decree provided that “Mother shall carry
medical insurance for the minor children.” Similarly, the modification judgment
specified that “Mother shall continue to provide medical insurance for the minor
children,” “either through her employer or that of her fiancé.” The circuit court
noted that Father “may provide additional health insurance coverage for the minor
children at issue in this case, but he is not ordered by this Court to do so and as
such, will not receive a credit on the Form 14 for any health insurance expense.”
Because Father had no obligation under the original dissolution decree or
under the modification judgment to provide health insurance coverage for the
children, the circuit court did not abuse its discretion in refusing to give him a
credit on Line 6(c) for the cost of any health insurance coverage he chose to
purchase.
18
C.
Finally, Father asserts the circuit court erroneously failed to give him credit
for overnight stays that the children had with him.
Line 11 on Form 14 provides an “[a]djustment for a portion of amounts
expended by the parent obligated to pay support during periods of overnight
visitation or custody.” “This adjustment is based on the number of periods of
overnight visitation or custody per year awarded to and exercised by the parent
obligated to pay support under any order or judgment.” Form 14, Comment to Line
11; see also Conrad v. Conrad, 76 S.W.3d 305, 310 (Mo. App. W.D. 2002) (the
overnight visitation adjustment is “limited to ‘court-ordered’ [overnight] visitation”).
Here, the circuit court did not grant Father any period of overnight visitation or
custody, either in the original dissolution decree, or in the modification judgment.
Father is accordingly not entitled to any credit on Line 11 for overnight visitation.
V.
Next, Father argues the circuit court erred in ordering Father to pay a
portion of the Guardian ad Litem’s fees because, according to Father, the Guardian
ad Litem should have been removed for failure to perform her duties.
Under § 452.423.5, RSMo, “[t]he guardian ad litem shall be awarded a
reasonable fee for such services to be set by the court.” § 452.423.5. The circuit
court has the discretion to fix reasonable compensation for a guardian ad litem’s
representation, and we review a judgment ordering the payment of guardian ad
litem fees only for an abuse of that discretion. S.I.E. v. J.M., 199 S.W.3d 808, 822
(Mo. App. S.D. 2006).
The circuit court found that the Guardian ad Litem “has performed good and
valuable legal services to protect the best interests of the minor children,” and
awarded $10,959.62 in fees as “fair and reasonable” compensation. The court
19
ordered Father to pay 2/3 of the Guardian ad Litem’s fees ($7,306.34) and Mother to
pay the remaining 1/3 (or $3,653.28).
Father does not challenge the amount of fees the circuit court awarded to the
Guardian ad Litem. Instead, he argues that the Guardian ad Litem should not
have been awarded any fee, because the Guardian ad Litem should have been
removed for deficient performance.
Under § 452.423.4, RSMo, the circuit court must remove a guardian ad litem
that fails to “faithfully discharge such guardian ad litem’s duties.” Ultimately,
“[r]emoval of a guardian ad litem is a matter vested in the sound discretion of the
appointing court.” Guier v. Guier, 918 S.W.2d 940, 950 (Mo. App. W.D. 1996)
(citation omitted).
The circuit court did not abuse its discretion in refusing to remove the
Guardian ad Litem in this case. The record shows that the Guardian ad Litem
conducted a thorough and independent review of all the records and evidence in this
case, communicated with both Mother and Father in person and through e-mail,
and visited the minor children on multiple occasions. While Father suggests
additional actions the Guardian ad Litem could have taken, the Guardian ad
Litem’s failure to take these additional actions does not rise to the level of
dereliction of duty that would justify this Court in finding that the circuit court
abused its considerable discretion in leaving the Guardian ad Litem in place.
Further, while Father may disagree with the opinions and recommendations
expressed by the Guardian ad Litem,
[t]he guardian’s principal allegiance is to the court and h[er] function is
to advocate what [s]he believes to be the best interests of the children.
Obviously, this will likely be contrary to the position taken by one of
the parents, in this case the Father. Father’s complaints boil down to
the fact that he was upset because the guardian did not necessarily
agree with Father's positions. The trial court did not err in refusing to
remove the guardian based on Father’s allegations of bias and
prejudice.
20
Guier, 918 S.W.2d at 950 (citation omitted).
VI.
In his seventh Point, Father argues the trial court abused its discretion in
awarding Mother $10,000 in attorney’s fees. Father argues the trial court abused
its discretion in awarding Mother these attorney’s fees because the court “failed to
consider and/or properly weigh[ ] the statutory factors (i.e., [Mother]’s financial
ability to pay, Father’s attempt to avoid litigation, and Mother’s misconduct [at
trial]).”
Generally, “parties to a domestic relations case are responsible for paying
their own attorney’s fees.” Alberswerth v. Alberswerth, 184 S.W.3d 81, 93 (Mo. App.
W.D. 2006) (citation omitted). However, trial courts have “considerable discretion”
to award attorney’s fees under § 452.355, RSMo, but if the court chooses to do so, it
“must comply with section 452.355.” Id. (citations omitted). In other words, the
trial court must consider “all relevant factors, including the financial resources of
both parties.” Id. (citation omitted); see Barancik v. Meade, 106 S.W.3d 582, 594
(Mo. App. W.D. 2003) (“A court is always required to consider the financial
resources of both parties before deciding a request for attorney fees.” (citation
omitted)). In addition to the parties’ financial resources, the trial court should
consider “the merits of the case and the actions of the parties during the pendency
of the action.” § 452.355.1. “When all relevant factors are considered . . . the trial
court’s decision is within its discretion.” Cohen v. Cohen, 178 S.W.3d 656, 674 (Mo.
App. W.D. 2005). Finally, there is no one-size-fits-all analysis under the relevant
factors: “The relevant factors will balance differently in each case.” Alberswerth,
184 S.W.3d at 94.7
7 The circuit court also found that Father had failed to pay his court-ordered
child support “in bad faith.” Under § 452.355.2,
[i]n any proceeding in which the failure to pay child support pursuant to a . .
. final judgment is an issue, if the court finds that the obligor has failed,
21
In the modification judgment, the circuit court found that:
[Father], through his actions to prolong and complicate this matter
along with his actions taken in bad faith including his failure to pay
the ordered child support amount, caused [Mother] to incur attorney
fees in the amount of $20,250.00, an amount in excess of that which
would be reasonably incurred by [Mother] in this matter.
The court ordered Father to pay $10,000 of Mother’s fees, slightly less than
half of the fees it found she had incurred. Elsewhere in the court’s judgment, it
discussed the parties’ relative salaries in connection with the modification of child
support, and Father makes no argument that he is financially unable to pay the
attorney’s fees the circuit court ordered. Additionally, the court considered Father’s
actions throughout the course of these proceedings which the court personally
observed to have prolonged and complicated these proceedings – findings Father
does not challenge on appeal. In his brief, Father merely asserts additional facts
that would potentially militate in his favor (such as his attempt to mediate before
trial; and the alleged misconduct of Mother’s counsel during the litigation).
However, our function on appeal is not to reweigh the relative merit or culpability of
each party’s conduct during the litigation. There plainly were circumstances in this
case which would justify the circuit court in concluding that an award of $10,000 in
attorney’s fees to Mother was warranted.
VII.
Father argues in his eighth Point that the judge erred in failing to recuse
herself.
Under § 508.090.1(1), a judge “may be disqualified in any civil suit” if “the
judge is interested or prejudiced.” The Code of Judicial Conduct requires recusal:
without good cause, to comply with such order or decree to pay the child
support, the court shall order the obligor, if requested and for good cause
shown, to pay a reasonable amount for the cost of the suit to the obligee,
including reasonable sums for legal services.
22
in any proceeding in which the judge’s impartiality might reasonably
be questioned, [including] where the judge has a personal bias or
prejudice concerning a party or knowledge of facts that are in dispute.
Anderson v. State, 402 S.W.3d 86, 91 (Mo. 2013) (quoting Rule 2-2.11(A)(1)). “[A]
disqualifying bias or prejudice is one that has an extrajudicial source and results in
an opinion on the merits on some basis other than what the judge learned from the
judge’s participation in a case.” Id. (quoting Smulls v. State, 10 S.W.3d 497, 499
(Mo. 2000)); see Martin v. State, 526 S.W.3d 169, 184 (Mo. App. W.D. 2017)
(“’Prejudice’ pursuant to section 508.090.1(1) aligns with the duty to recuse
pursuant to Rule 2-2.11(A).”). Because disqualifying bias must arise from an
extrajudicial source, “the mere fact that a ruling is made against a party does not
show bias or prejudice on the part of the judge.” Gordon on Behalf of G.J.E., 504
S.W.3d 836, 847 (Mo. App. W.D. 2016) (citation and internal quotation marks
omitted). We “presume[] that a judge acts with honesty and integrity and will not
preside over a hearing in which the judge cannot be impartial.” Anderson, 402
S.W.3d at 92 (citation omitted).
Father’s arguments for recusal are based on adverse rulings made by the
court during trial. Thus, Father argues that the circuit court exhibited bias: by
denying his motions to exclude Dr. Utley’s report; by excluding “an exhibit email
(which Mother objected to)”; by excluding “Father’s material evidence (Exhibits BB
[the audio recording], JJ)”; and by “sustaining Mother’s objection to Father’s
testimony that Mother’s fiancé[] stated, ‘you’re not the boss of me’ in the presence of
the children, which materially contradicted Mother’s hearsay testimony.” Even if
these rulings were erroneous, they do not establish a disqualifying bias or prejudice
from an extrajudicial source which would require the court’s recusal.
We also reject Father’s argument that the circuit court exhibited a
disqualifying bias or prejudice by “frequently threatening Father with attorney fees
if Father sought mediation, sought to secure visitation, sought to prepare for trial,
23
and/or create a record for appeal.” The record reflects that, on the occasions cited by
Father, the court merely reminded him that Mother was incurring attorney’s fees as
a result of his various litigation tactics, and that the court had the authority to
award attorney’s fees in its final judgment. Based on the record before us, we find
no abuse of discretion in the court’s refusal to recuse itself.
VIII.
Father’s ninth and final Point argues that the circuit court erred in finding
that its modified visitation schedule was in the best interests of the children.8
Under § 452.400, a court may modify an order granting visitation rights
(1) “whenever modification would serve the best interests of the child[ren],” and,
where the court is restricting a parent’s visitation, (2) “it finds that the visitation
would endanger the child[ren]’s physical health or impair [their] emotional
development.” § 452.400.2(1).
To the extent Father challenges the circuit court’s endangerment/impairment
finding necessary to impose supervised visitation, we discussed the substantial
support in the record for this finding in § I above. We do not repeat that discussion
here.
“In matters pertaining to visitation rights, we defer to the circuit court’s
assessment of the children’s best interests.” Stirling v. Maxwell, 45 S.W.3d 914, 915
(Mo. App. W.D. 2001) (citation omitted). On appellate review, “[w]e will affirm the
judgment unless it is not supported by substantial evidence, is against the weight of
the evidence, or the circuit court misstates or misapplies the law.” Id. (citation
8 In the same Point Relied On, Father argues the trial court “errored [sic] in
finding a substantial and continuing change that makes a change in custody necessary
. . . .” But the court did not order a modification of the existing custody arrangement based
on a substantial and continuing change of circumstances. The court instead only modified
the existing visitation schedule. Such a modification does not require the court to find a
“substantial and continuing change of circumstances.” Russell v. Russell, 210 S.W.3d 191,
196 (Mo. 2007); Welcome v. Welcome, 497 S.W.3d 842, 846 (Mo. App. W.D. 2016).
24
omitted). We will not reweigh the evidence before the circuit court, or decide the
best interests issue anew. Librach v. Librach, 575 S.W.3d 300, 312 (Mo. App. E.D.
2019).
In its judgment modifying Father’s visitation rights, the trial court made
explicit and detailed factual findings on each of the eight “relevant factors” to
determine the best interests of the children under § 452.375.2, RSMo. On appeal,
Father challenges the court’s factual findings under only four of the eight statutory
factors. Even as to the factors Father challenges, he takes issue only with certain of
the circuit court’s specific factual findings, or cites to additional evidence which – he
contends – mitigates or counter-balances the circumstances on which the circuit
court relied.
Father’s ninth Point essentially invites this Court to retry the “best interests”
issue, and reweigh the evidence the circuit court has already carefully considered.
We decline Father’s invitation. We find no abuse of discretion in the circuit court’s
conclusion that the parenting plan it ordered was in the best interest of the parties’
children.
Conclusion
We reverse the circuit court’s imposition of a modified child support
obligation of $554 per month on Father. We remand to the circuit court for further
proceedings on Mother’s motion to modify the child support award, consistent with
this opinion. In particular, in calculating Father’s presumed child support amount
in connection with Mother’s motion to modify, the circuit court must give Father a
credit on Line 2(c) of Form 14, to reflect Father’s support obligation for his new
daughter. In all other respects, the circuit court’s judgment is affirmed.9
9 Father filed a Motion for Criminal Contempt and Stay of Execution of
Judgment, in which he asked this Court to “Cite and Punish Jennifer Fain, Guardian Ad
Litem, and Stephanie Schutt, Respondent’s counsel for Criminal Contempt of Court, and
stay the execution of the underlying judgments on the basis of criminal contempt.” The
25
_________________________________
Alok Ahuja, Judge
All concur.
basis of Father’s motion is his contention that the Guardian ad Litem and Mother’s counsel
“knowingly suborned perjured statements [from Mother’s testimony] and knowingly offered
false evidence” in submitting Dr. Utley’s report because Mother lied to Dr. Utley. Despite
Father’s conclusory allegations, he has presented no evidence that the Guardian ad Litem
or Mother’s counsel knowingly permitted false testimony to be introduced. Father’s motion
to hold the Guardian ad Litem and Mother’s counsel in criminal contempt is denied.
26