Maria C. Ruggles, Respondent v. Kevin D. Ruggles, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Maria C. Ruggles, Respondent v. Kevin D. Ruggles, Appellant. Case Number: WD60795 Handdown Date: 07/29/2003 Appeal From: Circuit Court of Howard County, Hon. Gary G. Sprick Counsel for Appellant: Dan J. Pingelton Counsel for Respondent: Cynthia Barchet Opinion Summary: Kevin D. Ruggles appeals the court's judgment dissolving his marriage to Maria C. Ruggles, with respect to the issue of child support. Maria Ruggles was awarded monthly child support of $436. In addition, the social security disability benefits paid for the children, resulting from Kevin Ruggles' disability, were ordered paid to his ex-wife. Kevin Ruggles raises two points on appeal. In Point I, he claims that the court erred in awarding his ex-wife $436 per month in child support because: (1) the court's Form 14 calculation, Line 1, incorrectly imputed monthly gross income to him; and (2) the court's Form 14 calculation, Line 11, incorrectly allowed only a 9-percent overnight visitation adjustment (OVA). In Point II, he claims that the court erred in ordering that the social security disability benefits paid on behalf of the parties' children for Kevin Ruggles' disability be paid directly to his ex-wife because the greater weight of the evidence established that "both parents in this case share true joint legal and physical custody, thereby qualifying each of them to receive a portion of these benefits to use for the care and support of the children when they are with each parent, and not just one parent." AFFIRMED AND TRANSFERRED TO THE MISSOURI SUPREME COURT. Division Two holds: (1) The record reflects that Maria Ruggles filed a Form 14 as required, but Kevin Ruggles did not. The court rejected Maria Ruggles' Form 14 and did its own. Both forms reflected $1,906 in gross monthly income for Kevin Ruggles, while the court's Form 14 reflected an OVA credit of $85, and Maria Ruggles' Form 14 reflecting a larger credit of $94. In failing to file a Form 14, Kevin Ruggles effectively agreed with those figures as a minimum and cannot complain now on appeal.

(2) Weaks v. Weaks, 821 S.W.2d 503, 507 (Mo. banc 1991), must be read for the proposition that the disability benefits are not to be a credit to satisfy any future support obligation or any arrearage accumulated prior to the disability and that the custodian-payee of the benefits is to retain an excess of benefits over the support obligation as support for the children. Nonetheless, we fail to see the equity of allowing the obligee-payee, who is in no way responsible for generating this added source of child support, to keep the excess of benefits as a "gratuity" to meet his or her share of the total child support obligation of the parents, determined without consideration of this added source of support. Therefore, while constrained by Weaks to affirm the court's designation of Maria Ruggles as the custodian-payee for the total amount of the children's disability benefits, under the circumstances and given the fact that the Court's determination in Weaks treating the excess in benefits as a gratuity to the obligee-custodian-payee was without explanation or analysis, we are transferring this case, pursuant to Rule 83.02, to the Supreme Court for reconsideration of its holding in Weaks and its application here. Citation: Opinion Author: Edwin H. Smith, Judge Opinion Vote: AFFIRMED AND TRANSFERRED TO THE MISSOURI SUPREME COURT. Newton, P.J., and Ulrich, J., concur. Opinion: Kevin D. Ruggles appeals the judgment of the Circuit Court of Howard County dissolving his marriage to the respondent, Maria C. Ruggles, with respect to the issue of child support. The respondent was awarded monthly child support of $436. In addition, the social security disability benefits paid for the children, resulting from the appellant's disability, were ordered paid to the respondent. The appellant raises two points on appeal. In Point I, he claims that the trial court erred in awarding the respondent child support in the presumed correct child support amount (PCSA) of $436 per month, as calculated pursuant to the court's own Form 14, because: (1) the court's Form 14 calculation, Line 1, incorrectly imputed monthly gross income to the appellant; and (2) the court's Form 14 calculation, Line 11, incorrectly allowed only a 9% overnight visitation adjustment (OVA). In Point II, he claims that the trial court erred in ordering that the social security disability benefits paid on behalf of the parties' children for the appellant's disability be paid directly to the respondent because the greater weight of the evidence established that "both parents in this case share true joint legal and physical custody, thereby qualifying each of them to receive a portion of these benefits to use for the care and support of the children when they are with each

parent, and not just one parent." We affirm and transfer to the Missouri Supreme Court. Facts The parties were married on August 6, 1983. There were three children born of the marriage: Cody, born February 21, 1988; Luke, born May 17, 1991; and Abbey, born January 22, 1998. The parties separated on or about December 2000 after the respondent, on September 18, 2000, had filed a petition in the Circuit Court of Howard County seeking to dissolve the marriage. After separation, the children resided with each parent for roughly equal periods of time. During the separation, in March 2001, the appellant suddenly fell ill with Guillain-Barre syndrome, and nearly died. After a lengthy stay in the hospital and a rehabilitation center, in September 2001, the appellant went to convalesce at his parents' home in Illinois. During that time, the parties sought to resolve all the issues of their dissolution by way of a separation and settlement agreement and a joint parenting plan and were successful, save for the issue of child support. A trial was had, commencing on October 5, 2001. At trial, there was much testimony on the appellant's ability to work and provide child support. In that regard, the respondent filed a Form 14 imputing gross monthly income to the appellant of $1,906. The appellant never filed a Form 14. The respondent based the appellant's gross monthly income on wages of $11 per hour for a 40-hour work week, which is what she believed the appellant was making before his illness. The respondent's Form 14 calculated the appellant's child support obligation as being $443 per month. Prior to becoming ill, the appellant worked at Nordyne and was making $12.06 per hour for a 32-hour work week. He was scheduled to begin receiving social security disability benefits of approximately $1,235 per month on October 24,

1. Likewise, the children, by month's end, were to begin receiving disability benefits of $206 per child per month as a

result of the appellant's disability. The appellant's job at Nordyne was being held open for him until March 2002. He was hopeful that he could return to work by the end of February. In the trial court's judgment of October 29, 2001, dissolving the marriage, the parties were awarded joint legal and physical custody of the minor children. The appellant was ordered to pay the respondent child support of $436 per month. In calculating its award of child support, the trial court rejected the respondent's Form 14 in that "it did not take into account the cost of medical insurance" and did its own. In its Form 14, the trial court imputed income to the appellant of $1,906 per month ($11 per hour at 40 hours per week) based on a finding that he would "be able to return to his former place of employment, Nordyne, or some equivalent place of employment, when he completes his recovery." The trial court also ordered that the appellant "be given credit against his monthly child support obligation that amount which [the

respondent] receives for social security benefits due to the minor children due to [the appellant's] disability, but said credit shall be limited to the amount owed by [the appellant] each month as child support." This appeal follows. Standard of Review Our standard of review, with respect to child support rulings, is set forth in Conrad v. Conrad, 76 S.W.3d 305, 308 (Mo. App. 2002) (internal citations omitted): In determining an award of child support in any proceeding, section 452.340.8 and Rule 88.01 require the trial court to follow the two-step procedure set forth in Woolridge v. Woolridge, 915 S.W.2d 372, 379 (Mo. App. 1996), which was approved by the Missouri Supreme Court in Neal v. Neal, 941 S.W.2d 501, 504 (Mo. banc 1997). In the first step, the trial court must determine and find for the record the PCSA in accordance with Form 14. This required determination and finding can be done by the trial court's either accepting for the record a Form 14 calculation of one of the parties, or in the event the court ' rejects' their Form 14 calculations as being incorrect, by doing its own Form 14 calculation. The trial court can do its own Form 14 calculation by either completing a Form 14 worksheet and making it a part of the record or by articulating on the record how it calculated its Form 14 amount. In the second step, the court, after considering all relevant factors, must determine whether to rebut the PCSA as being unjust or inappropriate. Our review then of an award of child support is essentially one of the trial court's application of the twostep Woolridge procedure, applying the standard enunciated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Hence, in reviewing an award of child support, we review the award, in light of the trial court's application of the Woolridge procedure, to determine whether it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. After reviewing and determining that the trial court's application of the Woolridge procedure passes the Murphy v. Carron standard, we then review for an abuse of discretion with respect to the trial court's rebuttal review of its PCSA calculation. I. Although designated as one point, in Point I, the appellant actually raises two claims of error with respect to the trial court's award of $436 per month in child support to the respondent. He claims that the trial court erred in awarding the respondent child support in the PCSA of $436 per month, as calculated pursuant to the court's own Form 14, because: (1) the court's Form 14 calculation, Line 1, incorrectly imputed monthly gross income to the appellant; and (2) the court's Form 14 calculation, Line 11, incorrectly allowed only a 9% OVA. The record reflects that the respondent filed a Form 14 as required, Woolridge v. Woolridge, 915 S.W.2d 372, 379 (Mo. App. 1996), but the appellant did not. The trial court rejected the respondent's Form 14 and did its own. The trial

court's Form 14 and the respondent's both reflected gross monthly income for the appellant of $1,906, while the court's Form 14 reflected an OVA credit of $85, with the respondent's reflecting a larger credit of $94. In failing to file a Form 14, the appellant effectively agreed with those figures as a minimum and cannot now be heard to complain on appeal about their use by the trial court in calculating the appellant's child support obligation, which he seeks to do in this point. Tompkins v. Baker, 997 S.W.2d 84, 91-92 (Mo. App. 1999). Point denied. II. In Point II, the appellant claims that the trial court erred in ordering that the social security disability benefits the parties' children were to receive as a result of the appellant's disability be paid directly to the respondent because the greater weight of the evidence established that "both parents in this case share true joint legal and physical custody, thereby qualifying each of them to receive a portion of these benefits to use for the care and support of the children when they are with each parent, and not just one parent." Based on the Missouri Supreme Court's holding in Weaks v. Weaks, 821 S.W.2d 503, 507 (Mo. banc 1991), we disagree. As a result of the appellant's disability, each of the parties' children were to begin receiving, in the latter part of October, 2001, $206 per month in social security disability benefits, for a total of $618 per month. The trial court ordered that the respondent was to receive the full amount of the benefits paid, which was to be credited against the appellant's monthly child support obligation of $436, with any excess ordered not to be credited against the appellant's child support account to satisfy any future support obligation. The appellant contends that the trial court should have ordered that the disability benefits be split between the parties in that such "benefits are meant to assist the custodian of a child with the added burden of supporting a child while on disability," citing Weaks, 821 S.W.2d at 507. In claiming as he does, the appellant is not seeking a reduction in his child support obligation. Rather, he is seeking an order of the trial court to split the disability benefits between the parties based on the proportionate time each parent was to have actual physical custody of the children under the parenting plan adopted by the court, under which he claims the respondent was to have custody 60% of the time and he was to have custody 40% of the time. He argues that unless an equitable division of the disability payments is ordered between the parties, the respondent "[would have] $618 over and above her monthly income to spend directly on the children during 60% of the time with them." The respondent contends that the trial court did not err as alleged in that it complied with controlling law, specifically the Supreme Court's holding in Weaks. In Weaks, the Court was called upon to address the issue of whether a child support obligor should be given credit for social security disability benefits paid for the benefit of the obligor's children as a result of the obligor's disability. Id. at

1. There, the father filed a motion for contempt against the mother for the garnishment of his social security disability

benefits in satisfaction of his child support obligation alleging that his obligation had already been satisfied in full by the payment of social security benefits for the children resulting from his disability, which payments exceeded his obligation. The mother filed, inter alia, a cross-motion for contempt for the father's failure to pay his child support obligation. The parties stipulated that if the court found that a credit for the disability payments was appropriate, the father was due a credit of $10,335.60 against his child support account, and if not, he was in arrears in the amount of $6,608.10. Id. The trial court, relying on Craver v. Craver, 649 S.W.2d 440 (Mo. banc 1983), found for the mother. Weaks, 821 S.W.2d at 504-05. On appeal, the Missouri Supreme Court overruled Craver, holding that social security disability benefits paid for the children for the disability of the parent obligor were to be credited, dollar for dollar, against the obligor's support account. Weaks, 821 S.W.2d at 505-06. The rationale for the Court's holding was that the benefits "were a substitute for [the obligor's] income and therefore should be credited to satisfy his support obligation." Id. at 507. Having answered the question of whether a child support obligor should be given credit for social security disability benefits received by the children for the obligor's disability, the Weaks Court then asked the question: "Are excess social security benefits available to satisfy any future support obligation or any arrearage accumulated prior to the disability?" Id. In concluding that the answer to the question "must be no," the Court held that "[a]ny excess is deemed a gratuity to the extent that it exceeds the amount of support mandated by the decree." Id. As noted, supra, in accord with Weaks, the trial court here ordered that the appellant be given credit against his monthly child support obligation of $436 for the $618 social security disability benefits the children were to receive for the appellant's disability, which was obviously more than enough to satisfy his monthly obligation in toto. And, also in keeping with Weaks, the trial court ordered that any excess was not to be used to satisfy any future support obligation. Thus, while it is clear that under Weaks and the trial court's judgment that $436 of the disability payments was not available for distribution as sought by the appellant in that that amount was mandated as a credit against the appellant's support account, the question does arise as to whether the $182 excess ($618 - 436) was available for such a distribution. The respondent contends that under Weaks the trial court was justified in ordering that she receive the entire $618 in disability payments for the children such that after crediting the appellant's support account for $436, she would be entitled to retain the $182 excess as support for the children. In contending as she does, she relies on the holding in Weaks that the excess in disability benefits was a "gratuity" for the custodian-payee. Id. In light of this language, we would agree with the respondent that Weaks must be read for the proposition that the disability benefits are not to be a credit "to

satisfy any future support obligation or any arrearage accumulated prior to the disability" and that the custodian-payee of the benefits is to retain an excess of benefits over the support obligation as support for the children. Id. However, we would note that Weaks does not speak to the issue of which parent is to be designated the custodian-payee, only that the payee, once designated, is to retain the excess benefits as a "gratuity." We would also note that in Weaks, unlike here, the mother was the sole custodian and was already receiving the benefits on behalf of the children. Nonetheless, because we read Weaks as not only holding that the benefits are to operate strictly as a credit against the obligor's support obligation, with any excess to inure as a "gratuity" to the payee, there is no room under Weaks for splitting or distributing the disability benefits, including the excess, as the appellant seeks to do. The benefits are simply to be credited with the excess to be treated as a support gratuity to the payee. Although the appellant's claim in this point is clearly directed at the trial court's failure to apportion the benefits among the parties, a claim could arguably have been made challenging the designation of the respondent as the payee. However, here, given the fact that the parties were awarded joint legal and physical custody of the children, we fail to see how the trial court could be faulted for designating either parent as the payee for the benefits. Nonetheless, we do see the inequity of the respondent's being allowed to retain the whole of the excess benefits paid for the children. As the appellant contends, the respondent was awarded $436 in child support from him predicated on her income, his income, the children's reasonable expenses, and other Form 14 factors, including the time each parent was to have actual physical custody of the children, which he contends is roughly 60/40, with the respondent receiving the greater share of time. The $436 in monthly support was deemed by the trial court to be the correct amount of support for the respondent to receive based on the Form 14 factors and all other relevant factors. It does not, however, factor in the excess in disability benefits, which presumably under the Weaks analysis, are a substitute for the obligor's income for purposes of paying child support. In fact, by definition, any consideration of the excess in benefits over the support obligation, given the holding in Weaks, does not lend itself to any Woolridge procedure analysis. With respect to step 1 of the procedure, the calculation of the PCSA, the excess could not be determined until after the PCSA was determined, such that it could not be included in the calculation. As to step 2, the rebuttal, any downward adjustment in favor of the obligor to reflect the obligee's retaining the excess, would not accomplish the desired result of giving him any benefit of the excess in that regardless of the downward adjustment allowed in step 2, the upshot would still be that the obligor's support obligation was fully satisfied, leaving the obligor in the exact same situation that he or she occupied prior to the adjustment and denying him or her any benefit of the excess in benefits. This Catch-22 arises from the Court's treatment in Weaks of the benefits as a substitute for the obligor's income. Unlike the true incomes of the parents that are used to determine child

support, the children's disability benefits are not income at all, but a species of child support, emanating from the obligor. Thus, while it may very well be equitable as the Weaks court held to give a credit to the obligor for such "support," we fail to see the equity of allowing the obligee-payee, who is in no way responsible for generating this added source of child support, to keep the excess of benefits as a "gratuity" to meet his or her share of the total child support obligation of the parents, determined without consideration of this added source of support. While constrained by Weaks to affirm the trial court's designation of the respondent as the custodian-payee for the total amount of the children's disability benefits, under the circumstances and given the fact that the Court's determination in Weaks treating the excess in benefits as a gratuity to the obligee-custodian-payee was without explanation or analysis, we are transferring this case, pursuant to Rule 83.02,(FN1) to the Supreme Court for reconsideration of its holding in Weaks and its application here. Calculation of Trial Court's PCSA Although not raised, we note that in the trial court's Form 14, the Line 9 support obligations of each parent, $403 for the respondent and $556 for the appellant, do not add up to the Line 8 "total combined child support costs" of $975 as they should. (The Line 9 figures are determined by multiplying the Line 8 figures by the Line 4 percentages, reflecting the respondent's and appellant's "proportionate share of combined adjusted monthly gross income," which in this case were determined to be 42.87% for the respondent and 57.13% for the appellant.) As to the respondent's Line 9 support obligation, it would appear that the trial court incorrectly calculated it by multiplying the Line 5 "basic child support amount" of $940 by the Line 4 percentages, rather than the Line 8 amount of $975. Multiplying the Line 8 amount, $975, by the respondent's multiplier of 42.87%, the correct amount for the appellant's Line 9 child support obligation would be $418, instead of $403. Subtracting that amount from $975, the Line 8 amount, would result in the appellant's Line 9 support obligation being $557, rather than $556, the difference resulting from the respondent's amount being rounded up to the next whole dollar amount in the correct calculation, rather than down as occurred in the trial court's incorrect calculation. In any event, after substracting the credit for additional child rearing costs and the OVA adjustment found by the trial court, the appellant's child support obligation should have been $437, rather than $436. Therefore, pursuant to Rule 84.14, the trial court's judgment is amended to reflect the appellant's child support obligation as being $437, rather than $436. Conclusion

The circuit court's judgment of dissolution, inter alia, ordering the appellant to pay child support to the respondent, as amended by this court pursuant to Rule 84.14, $437 per month and ordering that the respondent be designated as the

payee for the children's social security disability benefits, is affirmed. However, because a majority of the participating judges believe that a reexamination of existing case law, specifically Weaks, is warranted, as discussed, supra, we order this case transferred to the Missouri Supreme Court on our own motion. Rule 83.02.

Footnotes: FN1. All rule references are to Missouri Rules of Civil Procedure, 2003, unless otherwise indicated. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.