               In the Missouri Court of Appeals
                                 Western District

PATRICK KLEIN,                           )
                              Appellant, )
v.                                       )           WD78026
                                         )
JENNIFER KLEIN,                          )           FILED: September 29, 2015
                            Respondent. )

         APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY
                THE HONORABLE KATHRYN E. DAVIS, JUDGE

BEFORE DIVISION THREE: KAREN KING MITCHELL, PRESIDING JUDGE, LISA WHITE
              HARDWICK AND ANTHONY REX GABBERT, JUDGES

      Patrick Klein ("Father") appeals from a judgment granting Jennifer Klein's

("Mother") motion for modification of child support and maintenance. Father

contends the circuit court erred in: (1) finding that the child was not emancipated;

(2) awarding child support retroactive to June 2013; (3) failing to order child

support payments be made directly to the child; (4) calculating the amount of child

support; and (5) extending maintenance payments beyond the termination date

provided in the dissolution judgment. For reasons explained herein, we reverse the

court's order awarding the new child support amount retroactive to June 2013,

and we reverse the court's Form 14 presumed correct child support calculation.
Those issues are remanded, with directions, to the circuit court. The judgment is

affirmed in all other respects.

                           FACTUAL AND PROCEDURAL HISTORY

      Father and Mother were divorced on March 24, 2009. The parties entered

into a marital settlement agreement, which the circuit court incorporated in its

judgment of dissolution. The judgment awarded the parties joint physical and legal

custody of their two children, Tanner and Casen, who were 16 years old and 13

years old, respectively, at the time of the dissolution. Father was required to pay

$549 in child support and to maintain health insurance for both children. The

judgment also required Father to pay modifiable maintenance in the amount of

$951 per month until June 2013, when such maintenance "shall terminate."

      On June 17, 2013, Father filed an affidavit to terminate child support,

asserting that Casen was emancipated because he was not enrolled in college and

was not living with Mother or Father. Mother filed a counter-motion to modify

child support and maintenance, arguing that Casen was not yet emancipated and

requesting that maintenance be extended. Mother's motion was filed on July 15,

2013, a month and a half after the maintenance termination date specified in the

dissolution decree.

      On April 16, 2014, trial was held on Father's affidavit and Mother's counter-

motion to modify. The court subsequently entered its judgment finding that Casen

was not emancipated and was still eligible for child support due to his enrollment in

college. The court concluded that Casen completed 12 credit hours and received

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passing grades in more than half of his classes for the Fall 2013 semester.

However, because Casen failed to submit an official school document showing his

enrollment prior to the Spring 2014 semester, the court abated Father's child

support obligation as of January 1, 2014. The court ordered that such abatement

would terminate upon Casen's compliance with the notification requirements. The

court accepted Mother's Form 14 calculation of the presumed correct child support

amount of $1044 per month and found that such an amount was not unjust or

inappropriate. The court, therefore, denied Father's request to terminate child

support and increased his support obligation to $1044 per month, retroactive to

June 1, 2013.

      The circuit court also found that "[s]ince the date of the judgment,

[Mother]'s expenses have increased and she is unable to meet her reasonable

expenses with her current income and property." Noting that the maintenance

order in the original dissolution decree was modifiable, the court ordered that

Father's maintenance obligation of $951 per month be extended "until further order

of the court." Father appeals.

                                 STANDARD OF REVIEW

      In reviewing this court-tried case, we must affirm the judgment unless there

is no substantial evidence to support it, it is against the weight of the evidence, or

it erroneously declares or applies the law. Ricklefs v. Ricklefs, 111 S.W.3d 541,

543 (Mo. App. 2003). We view the evidence and reasonable inferences in the light

most favorable to the circuit court's decision, disregarding all contrary evidence

                                           3
and inferences. Hicks v. Quednow, 197 S.W.3d 217, 219 (Mo. App. 2006). "We

defer to the trial court's decision even if the evidence could support a different

conclusion." In re Kreutzer, 50 S.W.3d 334, 337 (Mo. App. 2001).

                                            ANALYSIS

Emancipation of Casen

       In Point I, Father contends the court erred in finding that Casen was not

emancipated. Specifically, Father argues that Casen did not meet the requirements

of Section 452.340.5, RSMo Cum. Supp. 2013,1 because he was not enrolled in

12 credit hours of courses as of October 1, 2013. Further, Father argues that

because Casen failed two courses during the fall semester, he did not "complete"

12 credit hours. Finally, Father asserts that Casen failed to provide the official

school documents necessary for continued child support.

       Under Section 452.340.5, a child is not deemed emancipated for purposes

of child support if he or she, although reaching the age of 18, is continuously

enrolled in an institution of higher education until the age of 21. Section

452.340.5 provides, in pertinent part:

       If the child is enrolled in an institution of vocational or higher
       education not later than October first following graduation from a
       secondary school . . . and so long as the child enrolls for and
       completes at least twelve hours of credit each semester . . . and
       achieves grades sufficient to reenroll at such institution, the parental
       support obligation shall continue until the child completes his or her
       education, or until the child reaches the age of twenty-one, whichever
       first occurs.


1
 All statutory references are to the Revised Statutes of Missouri 2000, as updated by the 2013
Cumulative Supplement.

                                                4
      Casen originally enrolled in 16 credit hours at Maple Woods Community

College. He withdrew from two courses at some point before October 1. On

October 1, Casen was still awaiting a meeting with a guidance counselor to obtain

additional classes. Thus, as of October 1, 2013, Casen was enrolled in only nine

credit hours. By October 4, 2013, Casen was able to enroll in additional courses to

replenish his workload to 12 credit hours.

      Father argues that, because Casen was enrolled in only nine, rather than 12,

credit hours on the day of October 1, 2013, he was emancipated under Section

452.340.5. Father points out that the statute requires that Casen be enrolled in

and complete 12 credit hours each semester to remain eligible. Thus, Father

argues that Casen was required to be enrolled in at least 12 credit hours as of

October 1, 2013.

      We do not read Section 452.340.5 as a mandate that the number of credit

hours in which the child is enrolled on a single day is dispositive on the issue of

whether the child is entitled to continued support. Under the plain language of the

statute, the first requirement for receiving continued support is that the child be

"enrolled in an institution of vocational or higher education not later than October

first." § 452.340.5. While this language clearly requires that the child be enrolled

in the institution by October 1, it does not require that the child be enrolled in 12

credit hours as of that date. Instead, Section 452.340.5 provides only that the

child complete 12 credit hours during the semester as a prerequisite to remaining

eligible for continued support.

                                           5
      Father also argues that, by failing two courses in the first semester, Casen

did not "complete" 12 credit hours and therefore, did not remain eligible for

continued support. To support this argument, Father cites Lombardo v. Lombardo,

35 S.W.3d 386, 389 (Mo. App. 2000), which held that the "student must receive

credit for at least twelve hours" of courses in order to remain eligible for support.

Since Lombardo, however, the legislature has amended the statute, adding the

following language:

      When enrolled in at least twelve credit hours, if the child receives
      failing grades in half or more of his or her courseload in any one
      semester, payment of child support may be terminated and shall not
      be eligible for reinstatement.

§ 452.340.5 (emphasis added). Pursuant to this amendment, the court may, at its

discretion, terminate the child support obligation for a child who is failing half or

more of his classes. A child's failure to receive a passing grade in a course no

longer results in emancipation as a matter of law. Cox v. Cox, 384 S.W.3d 298,

303 (Mo. App. 2012).

      Casen took six classes in his first semester, which amounted to 12 hours of

credit. Of those six classes, Casen received passing grades in four of them. As a

result, Casen received passing grades in eight credit hours out of the 12 total hours

in which he was enrolled. Thus, Casen passed more than half of his Fall 2013

semester classes. "[W]here a child receives a failing grade in a course, provided

the child does not fail half or more of his or her classes, the child is deemed to




                                           6
satisfy the requirements of § 452.340.5." Paden v. Kerns, 318 S.W.3d 304, 307

(Mo. App. 2010).

      Finally, Father asserts that Casen's failure to provide official documents from

the school for the Spring 2014 semester required the court to terminate his child

support obligation. Father fails to recognize the court's discretion in this regard.

Although Section 452.340.5 requires the child to provide each parent with

documentation of grades, credits, and coursework at the beginning of each

semester, the statute specifically states that "child support may terminate" if the

documents are not provided. (Emphasis added.) Termination of child support is

not required. Therefore, the court did not err in abating, rather than terminating,

Father's child support obligation for the Spring 2014 semester. Point I is denied.

Retroactivity of Child Support

      In Point II, Father contends the circuit court erred in making the new child

support award retroactive to June 1, 2013. He argues that, because Mother filed

her cross-motion to modify child support on July 15, 2013, and Mother was the

prevailing party, the court was permitted to order child support retroactive only to

that date. See In re Marriage of McDaniel, 419 S.W.3d 828, 836 (Mo. App. 2013)

(stating that "[w]hen the parties file cross-motions to modify and the prevailing

party filed the later motion," the court may award child support retroactive only to

the date of the filing of the prevailing motion). Mother concedes this point.

Accordingly, Point II is granted. We reverse the portion of the judgment awarding

the new child support amount retroactive to June 1, 2013, and remand to the

                                           7
circuit court to enter a judgment ordering it retroactive to July 15, 2013. On

remand, the court may determine whether Father is entitled to an adjustment for

overpayment due to the erroneous retroactivity date. See Thomas v. Moore, 410

S.W.3d 748, 760 n.14 (Mo. App. 2013).

Payment of Support Directly to Casen

      In Point III, Father contends the court erred in refusing to order that child

support payments be made directly to Casen. Father argues that, because he did

not believe that Casen was still residing with Mother, and because Casen needed

to learn financial responsibility, the court should have allowed him to make

payments directly to Casen.

      If a child is enrolled in a post-secondary institution, "the child or parent

obligated to pay support may petition the court to amend the order to direct the

obligated parent to make the payments directly to the child." § 452.340.5. The

court is not required, however, to order that such payments be made directly to the

child. Indeed, the "court has broad discretion and flexibility in fashioning child

support payments." Heutel v. Heutel, 803 S.W.2d 84, 89 (Mo. App. 1990).

      While Father preferred to make payments directly to Casen to teach him

money management skills, Mother testified that Casen was struggling with

maturity issues and was poor at managing money. Furthermore, although Father

believed that Casen was no longer living with Mother, Mother testified that Casen

lived in her home on a full-time basis while he attended community college. The

circuit court was free to accept Mother's testimony over Father's, and we defer to

                                           8
its decision to do so. The court did not abuse its discretion in ordering child

support payments be made to Mother rather than directly to Casen. See Mason v.

Mason, 873 S.W.2d 631, 637 (Mo. App. 1994) (finding no error in the circuit

court's ordering that payments be made to custodial parent where evidence

indicated child was poor at managing money and was still living with custodial

parent). Point III is denied.

Child Support Calculation

      In Point IV, Father contends the court erred in failing to give him credit in the

child support calculation for the $120 he pays per month for Casen's health

insurance. Mother concedes that the court should have included Father's payment

of Casen's health insurance premiums in the Form 14 calculation, and she agrees

that the monthly amount is $120. Therefore, Point IV is granted. We reverse the

child support award and remand for the circuit court to recalculate the Form 14 to

include Father's payment of $120 per month for Casen's health insurance. After

recalculating the Form 14, the court should then determine whether to rebut that

amount as unjust or inappropriate based on a consideration of all relevant factors.

Thomas, 410 S.W.3d at 759–60. Additionally, on remand, the court may consider

whether Father is entitled to an adjustment for any child support payments he has

made since the judgment to the extent that the total amount paid exceeds the

amount he should have been paying. Id. at 760 n.14.

Credit for Payments Made on Behalf of Casen




                                          9
      In Point V, Father contends the circuit court erred in failing to give him credit

for certain expenditures he made on behalf of Casen after he stopped paying his

child support obligation in July 2013. Father asserts that he should have received

credit for the monthly amounts he paid for Casen's health insurance, car insurance,

and cell phone, as well as for payments he made directly to Casen, after that time.

Father argues that the amount he paid for these "necessities" exceeded his child

support obligation and that the circumstances required that such direct payments

be made, as Casen was not living with Mother.

      "A custodial parent has the sole authority to determine how to spend child

support paid by the noncustodial parent." Meyer v. Block, 123 S.W.3d 316, 326

(Mo. App. 2003). Furthermore, the noncustodial parent cannot "dictate the

method or manner of payment." Id. Thus, "[i]f the noncustodial parent pays all or

a portion of the child support in a manner inconsistent with the dissolution decree,

the noncustodial parent is typically not entitled to any credit for such payments."

Id. Equity may allow the credit for nonconforming payments "when those

payments were made under the compulsion of the circumstances." Id.

"Compulsion of the circumstances arises when the custodial parent abandons the

child or agrees to a change in custody." Ballard v. Hendricks, 877 S.W.2d 232,

235 (Mo. App. 1994). "This court has generally held, however, that the assent or

acquiescence of a custodial parent to the nonconforming payment must be

established." Meyer, 123 S.W.3d at 326.




                                         10
      In this case, there was no evidence indicating a compulsion of circumstances

requiring Father to make nonconforming child support payments. Mother neither

abandoned Casen nor agreed to a change in custody. While Father testified that he

believed Casen no longer resided with Mother, the court was free to disbelieve this

testimony, particularly in light of Mother's contrary statements that Casen

continued to live in her home. There was also no evidence that Mother either

assented or acquiesced to the nonconforming payments. The mere fact that

Mother may have been aware of such payments is insufficient to prove that she

consented to those payments in lieu of child support. See McBride v. McBride,

708 S.W.2d 738, 739 (Mo. App. 1986) (mother's awareness of father's monthly

car payments on children's behalf did not establish that she acquiesced to the

payments in lieu of support). Point V is denied.

Extension of Maintenance

      In Point VI, Father contends the circuit court lacked authority to extend the

maintenance award. Specifically, Father argues that, because the original

maintenance order terminated in June 2013, and because Mother did not file a

motion to modify maintenance until July 2013, there was no existing order for the

court to modify. Alternatively, Father argues that Mother failed to show a

substantial and continuing change sufficient to support modification.

      Section 452.335.3 provides:

      The maintenance order shall state if it is modifiable or nonmodifiable.
      The court may order maintenance which includes a termination date.
      Unless the maintenance order which includes a termination date is

                                         11
       nonmodifiable, the court may order the maintenance decreased,
       increased, terminated, extended, or otherwise modified based upon a
       substantial and continuing change of circumstances which occurred
       prior to the termination date of the original order.

(Emphasis added.) This provision contains no requirement that a motion to modify

be filed before the termination date for maintenance. Instead, the plain language of

the statute allows maintenance to be modified as long as the substantial and

continuing change supporting modification occurs before the termination date.

Thus, the circuit court had the statutory authority to extend the maintenance order

if the change occurred before the termination date contained in the original

dissolution decree.2

       The circuit court may modify maintenance "only if the moving party proves

by detailed evidence a change in circumstances so substantial and continuing as to

make the terms of the original maintenance order unreasonable." Batka v. Batka,

171 S.W.3d 757, 759 (Mo. App. 2005). While it was Mother's burden to prove

changed circumstances, "we presume that the trial court's judgment is valid and

the appellant has the burden of demonstrating that the judgment is incorrect." Lee

v. Gornbein, 124 S.W.3d 52, 56 (Mo. App. 2004).

       Father argues that Mother failed to show a substantial and continuing

change sufficient to support modification. He asserts that Mother's failure to show

what her expenses were at the time of the original decree precluded her from


2
  Father also asserts that the court lacked authority to modify maintenance because the parties'
separation agreement unambiguously terminated maintenance in June 2013. We reject this
argument because the separation agreement also expressly stated that "[m]aintenance is
modifiable."

                                                12
proving that her expenses have increased since the dissolution. He also argues

that Mother's Income and Expense Statement indicated that she paid $2200 per

month toward her debts, yet the minimum required payment listed for her credit

card debt was only a little over $500. Therefore, he alleges that, because she pays

more than is required toward her debt, she cannot show that continued

maintenance is necessary to meet her reasonable needs.

      In its judgment, the court found that, "Since the date of the judgment,

[Mother]'s expenses have increased and she is unable to meet her reasonable

expenses with her current income and property." The evidence supporting this

finding was Mother's testimony that she is in a substantially worse financial

position than she was at the time of the initial dissolution decree and that her

expenses and debts have increased significantly. She testified that she works

multiple jobs to try to meet her financial obligations. Mother also testified that she

is in danger of being unable to meet her mortgage payments without continued

maintenance. Although Mother admitted she was able to pay $2200 per month

toward her debt, she testified that she was only able to do so when her part-time

jewelry business had a brief period of success. At the time of trial, Mother said

she was paying only the minimum required payments toward her credit card debt.

The court was free to accept Mother's testimony regarding her increase in

expenses and her inability to meet those expenses, and her testimony was

sufficient to support the court's modification of the maintenance award. Point VI is

denied.

                                          13
                                    CONCLUSION

      We reverse the court's order awarding the new child support amount

retroactive to June 2013, and we reverse the court's Form 14 presumed correct

child support calculation. Those issues are remanded, with directions, to the circuit

court. The judgment is affirmed in all other respects.



                                              ____________________________________
                                              LISA WHITE HARDWICK, JUDGE

ALL CONCUR.




                                         14
