Evita Tolu, Appellant, vs. Robert J. Stientjes, Respondent.

EVITA TOLU, ) No. ED112115 ) Appellant, ) Appeal fro m the Circuit Court ) of St. Louis County vs. ) Cause No. 16SL-DR04088-02 ) ROBERT J. STIENTJES, ) Honorable Patrick S. Flynn ) Respondent. ) FILED: October 15, 2024 Opinio n Evita Tolu (Mother) appeals from the trial court's judgment modifying child support. Mother raises thirteen points on appeal. In Points One and Two, Mother argues that Robert J. Stientjes (Father) improperly served her by publication, and subsequent personal service failed to cure the initial service deficiency, such that the trial court never acquired personal jurisdiction over her. In Point One, specifically, Mother alleges the trial court erred in finding she waived her jurisdictional challenge by filing a disqualificatio n motion, which the trial court deemed a general appearance in the case. Mother contends the trial court consequently erred in assessing retroactive child support to the date of alleged waiver. Addressing these interrelated issues together, because Mother entered a limited appearance to move to dismiss for lack of personal jurisdiction and received an adverse ruling prior to filing her disqualification motion, we find the trial court erred in finding that the disqualification motion waived Mother's personal-jurisdiction

2

claim. Point One is granted in part. However, as to Point Two, because Mother stipulated to the date of personal service, which complied with the prompt-service requirement pursuant to Rule 54.21, 1 the trial court did not lack personal jurisdiction. Point Two is denied. Therefore, child support arrears may be assessed retroactive to the date of personal service pursuant to § 452.370.6. 2

In Points Six and Seven, regarding the overall award of child support, Mother argues that the trial court erred in failing to find that child support abated under § 452.340.5 because Father and the children failed to send timely documentation of college enrollment. Because § 452.340.5's language concerning abatement is permissive rather than mandatory and gives the trial court discretion to decide the appropriate outcome based on the circumstances, we find the trial court did not misapply the law in awarding retroactive and future child support. We deny Points Six and Seven. In Point Four, Mother alleges the trial court misapplied Rule 73.01(c) by failing to issue findings of fact and conclusions of law on all requested issues listed in her pre-trial request for findings, including findings on service of process, personal jurisdiction, the parties and children's current financial resources, and alleged discovery violations. Mother's filing failed to put the trial court on notice as to the specific contested issues, because it was more accurately a statement of proposed findings of fact and conclusions of law. Furthermore, as the trial court's judgment sufficiently set forth detailed findings of facts and conclusions of law on all the contested issues, we deny Point Four. In Points Three, Five, Nine, and Twelve, Mother alleges trial court error on issues that were either stipulated to or wholly abandoned at trial, thereby waiving appellate review. The

1 All Rule references are to Mo. R. Civ. P. (2023), unless otherwise noted. 2 All Section references are to RSMo (2016), unless otherwise noted.

3

points also involve misstatements of the record that fail to identify grounds for reversible error. For those reasons, Points Three, Five, Nine, and Twelve are denied. Turning to the remaining Points Eight, Ten, Eleven, and Thirteen, Mother challenges the trial court's parental income calculations. Specifically, in Points Eight, Ten, and Eleven, Mother argues the trial court erred in calculating her income by using impermissible evidence. In Point Eight, Mother claims the trial court erred in using a stale loan application to determine her income. Next, in Point Ten, Mother alleges the trial court erred in using wage surveys not introduced at trial to impute income to her. Then, in Point Elven, Mother alleges the trial court erred in allowing Father's attorney to argue for "reverse engineering" of Mother's income through her expenses. Finally, in Point Thirteen, Mother complains of trial court error in determining Father's income by failing to account for Father's business rent deductions and self- employment or health savings funds contributions. In Point Eight, Mother did not demonstrate the old loan application was used other than for impeachment purposes or that it prejudiced her income determination. We deny Point Eight. In Point Ten, because the trial court was authorized pursuant to Missouri Supreme Court Form 14 3 Comment H to take judicial notice of certain wage surveys for the imputation of parental income, we deny Point Ten. In Point Eleven, Mother failed to preserve her challenge to the "reverse engineering" argument at trial by failing to object and further did not demonstrate that the trial court gave said argument any weight. We deny Point Eleven. Lastly, as to Point Thirteen, Mother failed to show how Father's business rent deductions or contributions to his self-employment fund or health savings account constituted income, and she further failed to preserve such claims at trial. We deny Point Thirteen.

3 All Form references are to Mo. R. Civ. P. Form 14 (2022).

4

Accordingly, we affirm the trial court's judgment in part and reverse in part. We remand for the trial court to modify its award of retroactive child support to the date of personal service. The judgment is affirmed in all other respects. Background Mother and Father dissolved their marriage in 2016 through a dissolution judgment that awarded jo int legal and physical custody of then-minor sons T.S. and A.S. 4 and awarded child support, including anticipated college expenses. The dissolution judgment was modified in 2019 to grant Mother sole legal and physical custody over T.S. and Father sole legal and physical custody over A.S., while terminating all support provisions and assigning each parent full financial responsibility for their respective custodial child, including their respective 529 college savings accounts. 5

In July of 2020, Father moved in the subject proceeding to modify the judgment by seeking custody over T.S. and T.S's financial accounts as well as child support from Mother. Initially, Father served Mother through publication. Mother, an attorney acting pro se, entered a limited appearance to contest service and personal jurisdiction and filed a motion to dismiss on the same grounds. The trial court denied Mother's motion to dismiss. Later, Mother moved to disqualify all judges of the 21st judicial circuit. Throughout the pre-trial lit igat ion, Mother continued to dispute the trial court's exercise of personal jurisdiction. Next, Mother filed a Rule 74.06(b) motion for relief fro m the circuit court's order that she alleged to be void for lack of jurisdiction due to fraud as well as a renewed motion to dismiss for failure to obtain jurisdiction through service. The trial court denied both motions. Mother labeled her discovery requests to

4 N ames of minors are redacted pursuant to § 509.520, RSMo (Cum. Supp. 2023). 5 A 529 account is a common type of educational account that is set up to pay costs of college pursuant to a state plan established under the authority of 26 U.S.C.A. § 529.

5

Father as "related to lack of personal jurisdiction." Mother renewed her challenge to personal jurisdiction at trial and in her motion for new trial. The modification proceeding came to trial in October 2022. On the record, Mother stipulated to various facts and legal positions, including that the only triable issues were child support and attorneys' fees. Mother, Father, and both children, T.S. and A.S., testified at trial. T.S., then eighteen years old, testified that he graduated high school and was enrolled in his first semester of college. A.S., then nineteen years old, testified that he was a sophomore in college on a Reserve Officers' Training Corps (ROTC) scholarship. Both T.S. and A.S. testified that Mother knew they were enrolled in college, although there were discrepancies as to whether they timely provided records of enrollment and other official college documents to Mother. In its final judgment of modification, the trial court ruled that Mother waived any challenge to personal jurisdiction through her filings on her motion to disqualify, which the court found went beyond contesting personal jurisdiction. The trial court proceeded to find that the prior judgment required modificat ion due to a showing of a substantial and continuing change in circumstances. By st ipulat ion of the parties, the trial court awarded Father sole legal and physical custody of T.S. and A.S. The trial court explicitly found Mother's testimony not credible, particularly when it came to responding to conflicting evidence. The trial court made findings of fact related to the incomes of both parents, including imputing income to Mother, and attached a Form 14 child-support calculation form and a Part B child-support plan to the judgment. The trial court awarded Father child support in the amount of $1,049 per month. The trial court also awarded Father $25,176 in retroactive child support arrears dating back to April 21, 2021, the date on which the trial court held Mother generally entered the matter through her

6

disqualification motion. The trial court awarded Father control of both children's 529 college savings accounts, to be used for the payment of educational expenses and specified that addit ional parental contribution could be requested only if the plans were exhausted prior to emancipation. Mother filed a post-judgment motion for new trial, which was denied. Mother then filed this appeal. Father moved to strike Mother's appellate brief for failure to comply with the rules of appellate procedure in Rule 84.04, and we took the motion with the case. Additional facts from the record will be set forth in the discussion. Standard of Review We review judgments modifying child support the same as other court-tried cases under the standard set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Morgan v. Morgan, 497 S.W.3d 359, 363 (Mo. App. E.D. 2016). "We will affirm the trial 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." Sansone v. Fulton, 679 S.W.3d 9, 13 (Mo. App. W.D. 2023) (internal quotation omitted). "Whether to modify child support is a decision that lies within the discretion of the trial court, whose decision will be reversed only for abuse of discretion or misapplication of the law." Id. (internal quotation omitted). "The trial court is in a superior position to weigh all the evidence and render a judgment based upon that evidence; as such, the judgment is to be affirmed under any reasonable theory supported by the evidence." Morgan, 497 S.W.3d at 363 (internal citat ion omitted). When assessing the trial court's income determinations and child support calculations, § 452.340 and Rule 88.01 together "establish the method and guidelines for calculating child support." Girgis v. Girgis, 676 S.W.3d 510, 513 (Mo. App. E.D. 2023) (internal citat ion omitted). In a two-step procedure, the trial court first calculates the presumed amount of child support using Form 14, which establishes "a rebuttable presumption that the presumed child

7

support amount is the correct amount of child support." Id. (internal quotation omi