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Tambone v. Tambone11/16/2004
as-Hill v. Hill, 1 S.W.3d 613, 616 (Mo. App. W.D.1999)). This is a mathematical process, ensuring the child support guidelines are followed. J.L.M. v. R.L.C., Jr.,132 S.W.3d 279, 286 (Mo. App. W.D. 2004). "In the second step, the trial court makes a determination of whether that presumed child support amount has been rebutted as being unjust and inappropriate." Id.
This Court's review of the Form 14 ensures "the calculation was done accurately from a mathematical standpoint and that the various items and their amounts were included in the calculation and supported by substantial evidence." Lagermann v. Lagermann, 109 S.W.3d 239, 245 (Mo. App. E.D. 2003). In this case, the trial court erred in its initial calculation of its Form 14 by failing to include the private education costs. Line 6(e) of Form 14 provides for " ther extraordinary child-rearing costs." The comment for Line 6(e) explains what items should be included in extraordinary child-rearing costs. This comment allows for private school expenses which are not included in basic child-rearing costs. MO.R.Civ.P. Form 14, line 6(e), comment A. These costs are included on the Form 14 if the parents agree or the court so orders. Id.
Both Husband and Wife agreed their minor children would receive a private school education. They further agreed Husband would pay for all costs associated with attending private school. Accordingly, the trial court failed to include approximately $1400 of monthly educational expenses on its Form 14. These monthly expenses should have been included as extraordinary child-rearing expenses. The trial court is directed to re-calculate its Form 14 upon remand.
Wife raises one point in her cross-appeal. She alleges the trial court erred in finding Husband's future interest in a parcel of property in New Jersey as separate property. Similar to Husband's claims, Wife states that all property acquired during a marriage is marital unless it meets one of the statutory exceptions pursuant to Section 452.330. Wife believes Husband failed to introduce competent evidence which would exclude this property from being separate property.
At trial, Husband testified his aunt gifted the property to him, his siblings, and cousins subject to a life estate in Husband's parents. Husband's mother is still living, and Husband does not have free and clear title in the New Jersey property. Husband further testified that no marital funds were used to obtain or maintain this property.
The trial court is entitled to believe or disbelieve the testimony of either party. Taylor v. Tayor, 25 S.W.3d 634, 645 (Mo. App. W.D. 2000); Novak, 83 S.W.3d at 600. It is apparent, the trial court believed Husband when he alleged he would receive his interest in the New Jersey property only after his mother passed away. The gift from his aunt clearly falls within a separate property exception. Section 452.330.2(1). Point denied.
The judgment of the trial court is reversed and remanded.
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