Overages don't apply to future child support

Daily Record and the Kansas City Daily News-Press, Sep 21, 2004 by Stephanie Mitchum Murphy

When making child support payments, overages do not count for future debts owed, the Missouri Court of Appeals for the Western District ruled in an affirmed in part and reversed in part decision.

In Owen MacDonald, Respondent v. Karen (MacDonald) Minton, Appellant the mother appealed the Jackson County Circuit Court's judgment in her request of a modification of child support.

She appealed on four points including the argument that the court erred in ruling on the arrearage issue because it was not tried by implied consent and that it erred in applying the overpayments as credits to future debts owed. The COA reversed the issue of the arrearage on those points but affirmed the remainder of the court's judgment on the modification of child support.

Case Background

The couple divorced in 1986. At that time, the father was ordered to pay $276 per month in child support for their two children. Beginning in 1996, the father began making irregular payments, not paying some months and paying more than ordered other months. In 1999, the mother filed a motion for modification.

At that time, the parties' oldest daughter was in college with a scholarship that covered her tuition and part of her boarding and books. Evidence showed she worked a part-time job to cover the rest.

Another aspect of the case involved the younger daughter who suffers from a skin allergy that causes total hair loss. She receives a special hair attachment every two weeks that cost more than $3,000 a year. The record was unclear about how much the mother has to pay and how much the insurance pays.

Both parties are remarried and the father has children from his new marriage with health problems as well. He is a registered nurse, but at the time of the hearing he was working on rehabbing a house. The court calculated his monthly income based on an average of the previous three years.

At the trial, the court did not find a basis for increasing the father's child support payments. It ordered the parents to split any educational and medical costs for their children.

The court also found that the mother sought an arrearage of $7,000. It found an arrearage of $607, but did not address payment.

The Appeal

The mother's first two points dealt with the issue of the arrearage so the COA addressed them together.

First the court looked at the father's overpayments. According to the mother's calculations, he owed her $7,000. But the trial court only found he owed her $607. However, the parties did not have an agreement that he could make overpayments for future months.

The law is clear in Missouri that, absent an agreement between the parties or other equitable considerations, voluntary overpayments of child support cannot be used to satisfy future payments, the court wrote in a per curiam decision, citing Samples v. Kouts, 954 S.W. 2d 593, 600-01.

Because of that, the court granted the mother's point.

Second, it addressed the issue of implied consent regarding the arrearage issue. Because the matter was not plead or tried before the court, the trial court erred in ruling on it.

Mother did not ask for a determination of arrearage. For the above reasons, we reverse the judgment to the extent that the trial court made a finding of the amount of the arrearage, the court wrote.

The mother's third point was the court erred in not including the younger child's hair extension costs in the Form 14 calculation. The COA found the evidence of the cost of the hair treatments was unclear and it affirmed the trial court's judgment.

Thus, the actual out-of-pocket cost for the treatments and replacements was far from certain or predictable, the judges wrote. The court properly exercised its sound discretion in assigning each parent a percentage of the actual cost of the extraordinary expenses.

Finally, the mother argued the court erred in calculating the father's income because there was no evidence to support it. She said the court should have based his income on his earning potential as a nurse which would have made the amount higher.

The COA did not find evidence to support that argument.

Considering all the relevant factors, including Father's poor health, his past earnings history, his children's physical condition, and his need to accommodate his wife's work schedule in order to care for those children, we find that there was sufficient evidence to support the court's imputation of income to Father in the amount of $2,100 per month, the court wrote.

Judges Holliger, Ulrich and Smart made up the three-panel per curiam decision.