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    Carolyn G. WINDSOR, Appellant-Respondent, v. David G. WINDSOR, Respondent-Appellant.
    Nos. WD 63512, WD 63661.
    Missouri Court of Appeals, Western District.
    July 12, 2005.

      Creath S. Thorne, St. Joseph, MO, for appellant-respondent.
    Jay D. DeHardt, Kansas City, MO, for respondent-appellant.
    Before EDWIN H. SMITH, C.J., and SPINDEN and HOLLIGER, JJ.
   EDWIN H. SMITH, Chief Judge.

Carolyn G. Windsor (appellant) and David G. Windsor (respondent) appeal and cross-appeal the judgment of the Circuit Court of Andrew County sustaining, in part, and overruling, in part, the respondent’s amended motion to modify his child support obligation for the parties’ daughter, Kathryn, a student at the University of Missouri — Kansas City (UMKC). In his amended motion, the respondent sought a reduction in child support, retroactive to the date of filing, based on a loss of income resulting from his retirement, and credit against his child support arrear-age for the appellant’s failure to comply with the requirements of § 452.340.5 to provide information to him concerning Kathryn’s grades and course schedule. After a hearing, the trial court sustained the respondent’s motion as to the requested arrearage credit, ordering that his child support obligation be abated for a period of two years, from January 1, 2001, to December 31, 2002, for Kathryn and the appellant’s failure to comply with § 452.340.5. The court overruled the respondent’s amended motion as to the respondent’s request to reduce his child support obligation.

In her sole point on appeal, the appellant claims that the trial court “erred in finding that Respondent David Windsor owed no child support from January 2001 through December 2002 because child support was owed under the then-existing order in place in that the requirements of Mo.Rev.Stat. § 452.340.5 were met.” In his sole point on cross-appeal, the respondent claims that the trial court erred in denying his motion to reduce his child support obligation, based upon its rebuttal upward of the Form 14 presumed child support amount (PCSA), because the court’s rebuttal of the PCSA, as being unjust and inappropriate, was against the weight of the evidence, erroneously applied the law and abused the court’s discretion.

We affirm in part, and reverse and remand in part.

Facts

The parties’ marriage was dissolved on May 28, 1996, in the Circuit Court of Andrew County. The appellant was awarded sole legal and primary physical custody of their only child, Kathryn, born on August 16, 1982. The respondent was ordered to pay child support of $1,200 per month. In addition, the court divided the marital property of the parties. The respondent received a valuable coin collection; seventeen automobiles, including three Rolls Royces and four Mercedes Benzes; a 550-acre farm in Andrew County, Missouri; and real estate in Winnipeg, Canada.

At the time of the dissolution, the respondent was a practicing psychiatrist. However, on August 7, 1999, he sustained closed head injuries in a rollover automobile accident, which interfered with his ability to continue in his practice. On February 24, 2000, he filed a motion to modify his child support obligation, alleging that he was no longer able to work full time, and that his income was substantially less than at the time of the dissolution.

The respondent retired on March 16, 2000. Several months later, on August 23, 2000, he was incarcerated in a federal correctional facility in Leavenworth, Kansas, for evading taxes during the period of 1993 through 1996. The respondent was released from incarceration on April 17, 2001. On July 8, 2002, the appellant filed a motion for contempt for the respondent’s failure to pay child support. The motion alleged that the respondent was then in arrears in the amount of $29,267.

Kathryn graduated from high school in May of 2000, and began her freshman year at UMKC in the fall semester of 2000. The respondent received notice of Kathryn’s enrollment for her first semester in college, which was the fall semester of 2000. For the spring semester of 2001, the appellant enclosed a copy of Kathryn’s class schedule for that semester with a letter dated February 25, 2001, which was mailed to the correctional facility where the respondent was incarcerated and which he received. The letter, however, did not enclose a transcript of Kathryn’s grades for the previous semester, the fall semester of 2000. Instead, the letter stated: “I will send a copy of her grades to you as well.” The appellant testified, at trial, that she sent the grades for the fall semester of 2000 in a separate mailing, but the respondent denied receiving them. The respondent did not receive a copy of Kathryn’s college transcript until September 13, 2002, which was after the fall 2002 semester had begun, when the appellant provided a transcript containing Kathryn’s grades through the spring 2002 semester.

On September 23, 2002, the respondent filed an amended motion to modify which, in addition to the allegations of his original motion, alleged that the appellant and Kathryn, in violation of § 452.340.5, had “failed to keep the Respondent continuously advised of the minor child's attendance at an institution of higher learning and of the minor child’s grades and credits, if any, received from the institution of higher learning.” The motion asked the court to credit, against the respondent’s child support arrearage, the child support payments which accrued during the time he was not receiving this information: the spring 2001, fall 2001, spring 2002, and fall 2002 semesters.

On June 26, 2003, the respondent’s amended motion to modify and the appellant’s motion for contempt were taken up and heard. The respondent testified that he did not receive a college transcript from either Kathryn or the appellant until September 13, 2002, when he received the transcript, which contained her grades through the spring 2002 semester. The appellant testified that the first time that a college transcript for Kathryn was provided to the respondent was on September 13, 2002. With respect to the fall semester of 2000, the appellant testified that, on July 31, 2000, she sent the respondent a letter enclosing a copy of Kathryn’s acceptance for admission at UMKC and her class schedule for that semester. With respect to the spring semester of 2001, she testified that she sent the letter of February 25, 2001, to the respondent advising him of Kathryn’s course schedule.

The appellant testified at length concerning her difficulties in contacting the respondent, which she claimed prevented her from providing him with the necessary information concerning Kathryn’s progress at UMKG for the fall 2001, the spring 2002, and the fall 2002 semesters. She testified that, in the spring of 2001, she made another effort to contact the respondent at the correctional facility, but was told that she could not talk with him and could not leave a message because she “was not on the call list.” The appellant further testified that, later that spring, she learned from Kathryn that, after the respondent was released from custody on April 17, 2001, he left the country to return to England, where he was born and his family still resided. The appellant testified that she was also told that there was a likelihood that the respondent would be deported and that she was led to believe that it was unlikely that he would return to the United States. The appellant testified that she received no communication from the respondent after he was released from incarceration and while he was out of the country. In the summer of 2002, she learned that the respondent had returned to the country, and so she provided, at the end of that summer, documentation regarding Kathryn’s progress at UMKC up to that time.

On October 14, 2003, the trial court entered its judgment modifying its prior decree as to the respondent’s child support obligation and denying the appellant’s motion for contempt. The court found in the judgment that the respondent had stipulated that he received sufficient notice of Kathryn’s college enrollment for the fall 2000 semester so that his child support obligation continued unabated through December, 2000. However, the court also found that, for the period after the fall 2000 semester, until the beginning of the spring 2003 semester, “[njeither [the appellant] or [Kathryn] complied with requirements of Section 452.340.5, RSMo., and furnished statutorily adequate notice to Respondent of the minor child’s grades, credits, hours, continuing eligibility or continuing enrollment.” Accordingly, the trial court ordered that the respondent’s child support obligation for Kathryn be abated “from the end of the Fall 2000 semester, or January 1, 2001, through and including the end of the Fall 2002 semester, or December, 2002.”' As to the respondent’s motion for a reduction of child support, the trial court found that the PCSÁ was $473, but that this amount was “unjust and inappropriate” because the respondent had assets that enabled him to pay more in child support. The trial court rebutted the PCSA upward to $1,200, the amount of the existing order. Accordingly, the trial court overruled the respondent’s amended motion seeking a reduction in child support.

This appeal followed.

Standard of Review

The standard of review governing the modification of the child support provisions in a dissolution decree is the same as in any other court-tried case. Ricklefs v. Ricklefs, 111 S.W.3d 541, 543 (Mo.App. 2003). The judgment of the trial court will be affirmed on appeal “unless there is no substantial evidence to support it, or unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Id. (quoting Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)).

I. Mother’s Appeal

In her sole point on appeal, the appellant claims that the trial court “erred in finding that Respondent David Windsor owed no child support from January 2001 through December 2002 because child support was owed under the then-existing order in place in that the requirements of Mo.Rev.Stat. § 452.340.5 were met.” The appellant’s point wholly fails to comply with Rule 84.04(d), governing proper Points Relied On (PRO).

Rule 84.04(d)(1) provides:

(1) Where the appellate court reviews the decision of a trial court, each point shall:
(A) identify the trial court ruling or action that the appellant challenges;
(B) state concisely the legal reasons for the appellant’s claim of reversible error; and
(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
The point shall be in substantially the following form: “The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error].”

Thus, the rule requires that a proper PRO must: (1) identify the ruling or action of the trial court that is being challenged on appeal; (2) state the legal reason or reasons for the claim of reversible error; and (3) explain in summary fashion why, in the context of the case, the legal reason or reasons support the claim of reversible error. Lombardo v. Lombardo, 120 S.W.3d 232, 247 (Mo.App.2003). Compliance with Rule 84.04 briefing requirements is mandatory in order to ensure that appellate courts do not become advocates by speculating on facts and on arguments that have not been made. Franklin v. Ventura, 32 S.W.3d 801, 803 (Mo.App.2000). The failure to comply with Rule 84.04(d) warrants dismissal of the appeal. Young v. Ernst, 113 S.W.3d 695, 697 (Mo.App. 2003).

The appellant’s PRO fails to explain in summary fashion why, in the context of this case, the legal reason or reasons support the claim of reversible error. Her point is nothing more than an abstract statement of the law, which is unacceptable in satisfying the requirements of Rule 84.04(d). Lombardo, 120 S.W.3d at 247. In essence, all she claims is that the trial court was wrong. The appellant’s failure to comply with Rule 84.04(d), in any meaningful manner, is sufficient reason to dismiss the appellant’s claim of error. Young, 113 S.W.3d at 697.

Strictly speaking, non-compliance with the dictates of Rule 84.04 preserves nothing for appellate review. Stangeland v. Stangeland, 33 S.W.3d 696, 703 (Mo.App.2000). However, because appellate courts are more tolerant regarding the requirements of Rule 84.04(d) when the appeal involves the welfare of children, we will review, provided the argument is sufficient in conjunction with the points relied on to allow us to ascertain the issues being raised, without becoming advocates for the appellant, which we are prohibited from doing. Id. Because we can determine from reading the argument what the appellant is claiming, we will review her claim, although we would caution counsel in the future to make a better effort to comply with the dictates of Rule 84.04(d).

In its judgment, the trial court ordered that the respondent’s child support obligation for Kathryn be abated from January 1, 2001, to December 31, 2002, for failure to comply with the dictates of § 452.340.5, with the respondent to receive credit against his child support arrearage for the amount of child support abated. In attacking on appeal the trial court’s .abatement order, the appellant breaks up her argument into three separate attacks, based on three separate time periods of this two-year child support abatement period: “Spring 2001”; “Winter 2001 and Spring 2002 Semesters”; and, “Winter 2002.” Her claim as to each is different, requiring us to address each as a separate point. However, before doing so, we first must discuss the requirements of § 452.340.5, the application of which provides the basis for the trial court’s order of abatement.

Generally, a child support obligation terminates when the child reaches the age of eighteen. Section 452.340.3; Ricklefs, 111 S.W.3d at 544. However, child support will continue up to age 22, provided the child is enrolled in an institution of vocational or higher education and the requirements of § 452.340.5 are met. Section 452.340.5; Ricklefs, 111 S.W.3d at 544. Section 452.340.5 provides, in pertinent part:

If when a child reaches age eighteen, the child is enrolled in and attending a secondary school program of instruction, the parental support obligation shall continue, if the child continues to attend and progresses toward completion of said program, until the child completes such program or reaches age twenty-one, whichever first occurs. If the child is enrolled in an institution of vocational or higher education not later than October first following graduation from a secondary school or completion of a graduation equivalence degree program and so long as the child enrolls for and completes at least twelve hours of credit each semester, not including the summer semester, at an institution of vocational or higher institution, the parental support obligation shall continue .until the child completes his or her education, or until the child reaches the age of twenty-two, whichever first occurs. To remain eligible for such continued parental support, at the beginning of each semester the child shall submit to each parent a transcript or similar official document provided by the institution of vocational or higher education which includes the courses the child is enrolled in and has completed for each term, the grades and credits received for each such course,' and an official" document from the institution listing the courses which the child is enrolled in for the upcoming term and the number of credits for each such course. If the circumstances of the child manifestly dictate, the court may waive the October first deadline for enrollment required by this subsection.

Section 452.340.5 contemplates proof of eligibility for continued child support on a semester-by-semester basis. Ricklefs, 111 S.W.3d at 544. Eligibility for support for the first semester may be established simply by providing proof of enrollment. Id. However, to remain eligible for continued child support, the child must submit to each parent, at the beginning of each semester, a transcript or similar official document, provided by the institution, showing the courses in which the child is enrolled and has completed for each semester and the grades and credits received for each completed course. In addition, the child must submit an official document from the institution listing the courses in which he is enrolled for the upcoming term and the number of credits for each. § 452.340.5. Although the statute speaks in terms of the child providing the requisite information, it has been interpreted to mean that the statutory requirements are satisfied if either the child or the child support obligee provides the mandated information to the child support obligor. Spencer v. Spencer, 126 S.W.Sd 770, 774 (Mo.App.2004). If the requirements of § 452.340.5 are not satisfied for a given semester, a parent is relieved of his or her child support obligation for that semester. Ricklefs, 111 S.W.3d at 544. A failure to comply with the requirements of § 452.340.5 one semester does not, however, relieve a parent of his or her child support obligation for future semesters if the statutory requirements are met for those semesters. IcL

A. Spring 2001 Semester

Although the appellant concedes that the respondent was not provided a § 452.340.5 qualifying transcript at the beginning of the spring 2001 semester, she nonetheless claims that the requirements of § 452.340.5 were satisfied in that the respondent was provided a copy of Kathryn’s grades from UMKC, which she argues would qualify as a “similar official document,” under that section. However, the respondent testified at trial that he never received the grades. Hence, a factual issue was raised as to whether the grades were sent as the appellant testified. Thus, even assuming, arguendo, that a copy of Kathryn’s grades would be sufficient to satisfy the transcript requirement of the statute, if the trial court believed that the grades were not actually sent, it would have been justified in abating child support for the spring 2001 semester on that basis and in accordance with § 452.340.5.

There is substantial evidence in the record to support a finding by the trial court that the appellant did not send the respondent the required information concerning Kathryn’s grades for the fall 2000 semester. At trial, the respondent testified that he did not receive notice of Kathryn’s grades for the fall 2000 semester until two years later, on September 13, 2002. Likewise, the appellant acknowledged that the transcript she provided on September 13, 2002, was the first transcript that she had ever ordered from UMKC. In addition, when the appellant was asked whether, aside from the transcript provided on September 13, 2002, she had been able to find any written records that would establish that she had sent the respondent the required information for the spring 2001, fall 2001, spring 2002, and fall 2002 semesters, she replied, “Not to my knowledge.” The trial court was free to believe the evidence that suggested that the appellant never provided the respondent with information concerning Kathryn’s grades for the fall 2000 semester and disbelieve the evidence to the contrary. Malawey v. Malawey, 137 S.W.3d 518, 522 (Mo.App.2004). Hence, the trial court’did not err in ordering that the respondent’s child support obligation for the spring 2001 semester be abated for the appellant and Kathryn’s failure to provide him with timely notice of her grades and credit hours for the past semester, fall 2000, and the upcoming semester, spring 2001.

B. Fall 2001 and Spring 2002 Semesters

The appellant next claims that the trial court erred in abating child support for the fall 2001 and spring 2002 semesters, on the basis that the requirements of § 452.340.5 were not satisfied, because under the circumstances, any efforts by her to provide the information required by that statute would have been “meaningless, futile, and without effect” due to the respondent’s inaccessibility and lack of cooperation. In claiming as she does, the appellant is contending that the trial court erroneously interpreted and applied § 452.340.5. She contends that the legislature did not intend that the notice requirements of § 452.340.5 would apply where there is a reasonable belief by the child support obligee that any efforts to contact the obligor would be “futile, meaningless, and absurd.” The appellant does not cite any authority for her position other than City of St. Louis v. James Braudis Coal Co., 137 S.W.2d 668, 669 (Mo.App.1940), which she cites for the general proposition that:

since [statutes and ordinances] are presumably passed in the spirit of justice and for the welfare of the community they should be interpreted if possible so as to further that result and to attain that end courts will look less to letter or words of the statute or ordinance and more to the context, subject matter, consequence and effect and the reason and spirit of the law.

Using this general proposition as a guiding star, she contends that the clear intent of § 452.340.5 is to ensure that “non-custodial parents not be excluded from information regarding the progress of their child through institutions of higher education while at the same time being required to support that child.” From this, she contends that the intent of § 452.340.5 is not thwarted where, as in her case, no attempt is made to contact the child support obli-gor to provide the required information because any efforts to contact him would be futile, and he is not paying child support as ordered and has shown no interest in the child’s education. In other words, she is claiming no harm, no foul.

With respect to the appellant’s contention that we should interpret § 452.340.5 so as to forgive the appellant’s admitted failure to make any attempt to comply with its provisions, statutory interpretation is purely a question of law, which we determine de novo. Pavlica v. Dir. of Revenue, 71 S.W.3d 186, 189 (Mo.App.2002). When interpreting a statute, we are to determine the intent of the legislature, giving the language used its plain and ordinary meaning, and give effect to that intent, if possible. State ex rel. Riordan v. Dierker, 956 S.W.2d 258, 260 (Mo. banc 1997). If the intent of the legislature is clear and unambiguous, giving the language used in the statute its plain and ordinary meaning, then we are bound by that intent and cannot resort to any statutory construction in interpreting the statute. Baxley v. Jarred, 91 S.W.3d 192, 196 (Mo.App.2002).

Section 452.340.5 provides, in pertinent part, that: “[t]o remain eligible for ... continued parental support,” a child “shall submit to each parent a transcript or similar official document” showing the requisite grades and course schedule. (Emphasis added.) As discussed, supra, this notice requirement has been interpreted as requiring either the child or the child support obligee to provide the mandated information for continued eligibility for child support. Spencer, 126 S.W.3d at 774. There is nothing in the statute that would lead us to believe, as the appellant suggests, that the legislature intended that a child or obligee did not have to make any effort to comply with its requirements based on a subjective belief that any effort to notify him of the required information would be futile. The folly of that suggestion is apparent on its face. At the very least, the legislature intended that a good faith effort be made, as opposed to no effort at all, to comply with the statute’s notice provisions. See IPI Liberty Village Associates v. Spalding Comers Associates, 751 S.W.2d 120, 124 (Mo.App.1988) (in interpreting § 443.325.3(4) RSMo 1986, as to a required notice being mailed to the last known address of the mortgagor, the court held that the “aim and purpose of the statute is to require a good faith effort to bring the intended foreclosure sale to the actual notice of the mortgagor”).

The record here supports the fact that the appellant had various avenues in which to make a good faith effort to inform the respondent of the information required by § 452.840.5, concerning Kathryn’s classes and progress at UMKC. She could have sent the required documentation to his last known address or to his attorney of record. She chose to do nothing, which violates both the spirit and the letter of § 452.340.5. As such, the trial court was justified in abating the respondent’s child support obligation for fall 2001 and spring 2002 semesters.

C. Pall 2002

The appellant claims that the trial court erred in abating child support for the fall 2002 semester on the basis that the requirements of § 452.840.5 were not satisfied because the information mandated by the statute was provided through the taking of the appellant’s deposition on September 13, 2002, and subsequent production of requested documents. We disagree.

As we noted, swpra, in order to comply with § 452.340.5, Kathryn or the appellant had to provide the respondent, at the beginning of the semester, with official documentation from UMKC showing both Kathryn’s grades for the previous semester and her class schedule for the upcoming semester. Ricklefs, 111 S.W.3d at 544. The deposition was never introduced at trial and is not before us on appeal. But, even assuming that the appellant’s deposition could be considered and was as informational as she contends, the disclosures to the respondent she contends were made by her deposition and the subsequent production of documents would not have been timely and would not have constituted official documentation from UMKC so as to satisfy the requirements of § 452.340.5. We are to affirm the decision of the trial court if it is sustainable on any ground. 66, Inc. v. Crestwood Commons Redevelopment Corp., 130 S.W.3d 573, 584 (Mo.App.2003). Consequently, the trial court did not err in concluding that the respondent’s child support obligation was abated for the winter 2002 semester for failure to meet the requirements of § 452.340.5.

Point denied.

II. Father’s Cross-Appeal

In his sole point on cross-appeal, the respondent claims that the trial court erred in denying his amended motion to reduce his child support obligation, based upon its rebuttal upward of the Form 14 PCSA, because the court’s rebuttal of the PCSA, as being unjust and inappropriate, was against the weight of the evidence, erroneously applied the law and abused the court’s discretion.

Pursuant to § 452.370.1, a trial court cannot modify a child support order unless it first finds that there has been a change of circumstances so substantial and continuing as to make the terms unreasonable. In that regard, the respondent alleged in his amended motion that there had been a substantial and continuing change of circumstances making the monthly child support order of $1,200 per month unreasonable, in that his health problems had forced him to retire from his profession, so that his income was substantially less than at the time of the dissolution. In overruling the respondent’s amended motion to modify child support, the trial court necessarily found that the respondent had failed to carry his burden of showing a substantial and continuing change of circumstances making the terms of the present child support order unreasonable. The respondent contends, inter alia, that this was error in that, in accordance with § 452.370.1, the Form 14 PCSA of $473 per month, found by the trial court, represented a change of more than 20% from the existing order of $1,200, such that he made a prima fade case for a change in circumstances sufficient to modify child support, which was not rebutted by the appellant.

In determining an award of child support in any proceeding, § 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 (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. Ricklefs, 39 S.W.3d at 870. 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. Woolridge, 915 S.W.2d at 381-82. 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. Id. at 382. In the second step of the Woolridge procedure, the court, after considering all relevant factors, must determine whether to rebut the PCSA as being unjust or inappropriate. Ricklefs, 39 S.W.3d at 870. Our review then of an award of child support is essentially one of the trial court’s application of the two-step 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. Ricklefs, 39 S.W.3d at 869; Woolridge, 915 S.W.2d at 375. After reviewing and determining that the trial court’s application of the Woolridge procedure passes the Murphy v. Carrón standard, we then review for an abuse of discretion with respect to the trial court’s rebuttal review of its PCSA calculation. Nelson v. Nelson, 25 S.W.3d 511, 520 (Mo.App.2000).

Here, the trial court accepted the respondent’s Form 14, which calculated the PCSA as $473. The respondent’s Form 14 reflected that his gross monthly income was $3,401, consisting of Social Security benefits of $1,151 and retirement income of $2,250. The PCSA of $473 constituted a change of $737 from the existing child support order of $1,200, or a percentage change of slightly over 60%. Pursuant to § 452.370.1, a change of 20% or more constitutes a prima facie substantial and continuing change of circumstances warranting the modification of a child support order. However, the trial court rebutted this amount as being “unjust and inappropriate,” based on “evidence of the substantial assets respondent received at the time the marriage was dissolved and the additional income he has received as a result of the sale of some of these assets along with his ability to sell other assets in order to increase his income.” It found that the correct child support amount was the same as the existing amount, $1,200 per month. Thus, the trial court’s rebuttal upward of the PCSA, of over 150%, to the same amount as the existing child support amount of $1,200, worked to deny the respondent’s amended motion to modify his child support obligation.

To determine the proper amount of child support, the trial court is required to balance the needs of the child against the obligor’s ability to pay. Malawey, 137 S.W.3d at 527 (citing Weaks v. Weaks, 821 S.W.2d 503, 507 (Mo. banc 1991)); see also, Mehra v. Mehra, 819 S.W.2d 351, 354 (Mo. banc 1991). In making this determination, the Legislature mandates in § 452.340.8 that the Missouri Supreme Court establish written guidelines. Those guidelines are found in Civil Procedure Form 14. Pursuant to § 452.340.9 and Rule 88.01(b), “[i]t is presumed that the amount of child support calculated pursuant to Form 14 and accepted by the trial court is the correct amount to be awarded, subject to being rebutted as being ‘unjust and inappropriate.’ ” Crews v. Crews, 949 S.W.2d 659, 669 (Mo.App.1997). In other words, the PCSA represents the intersection of the child’s presumed financial needs and the parent’s presumed ability to pay.

A child support award is limited to the demonstrable financial needs of the child. Honderick v. Honderick, 984 S.W.2d 205, 211 (Mo.App.1999) (citing Heins v. Heins, 783 S.W.2d 481, 483 (Mo. App.1990)). Child support is not intended to “provide an accumulation of capital.” Mehra, 819 S.W.2d at 354 (citing Heins, 783 S.W.2d at 483). Hence, the fact that a parent can pay more than the demonstrable financial needs of the child is not, in and of itself, a basis for increasing a child support award, such that a rebuttal of the PCSA on that basis alone would be improper. There would also have to be evidence that the financial needs of the child exceeded the PCSA. Haden v. Riou, 37 S.W.3d 854, 864 (Mo.App.2001).

In its judgment, the trial court referred to the sale proceeds of marital property set off to the respondent in the dissolution proceeding as income for purposes of determining child support. We question whether such proceeds would be considered income for purposes of Form 14. See Directions, Comments for Use and Examples for Completion of Form No. 14, Line 1: Gross Income, defining income. While we found one case, in a footnote, that indicates that a trial court could consider a “substantial increase in assets as a non-Form 14 factor which rebuts the appropriateness or justness of the amount of child support determined under Form 14,” Gordon v. Gordon, 924 S.W.2d 529, 533 n. 5 (Mo.App.1996), that would speak only to an “increase” in assets not the mere fact of liquidating an asset, as was the case here, to create “income.” There is nothing in the record to support a finding by the trial court that there was an increase in the respondent’s assets; there is only evidence that some of his assets had been liquidated and that others could be liquidated, which the court referred to as an “ability to increase his income by the sale of other assets.” There is also no evidence in the record as to what income, if any, the cash proceeds could generate. And, even assuming somehow that, in liquidating his assets, the respondent created additional income, the question arises as to why the trial court did not include that income in the Form 14 calculation of the PCSA. In any event, the trial court still erred in rebutting the Form 14 PCSA.

As the party benefiting from the trial court’s upward deviation from the PCSA, even if she did not request it, the appellant had the burden to show the need for deviating from the PCSA. Haden, 37 S.W.3d at 864. This burden would have included demonstrating that Kathryn’s financial needs exceeded the PCSA. Id. However, the appellant failed to meet her burden in that there is no evidence in the record of Kathryn’s financial needs. There is no evidence of her expenses, the cost of college, or her resources from employment or elsewhere. Because the record is devoid of any evidence of Kathryn’s financial needs over and above the PCSA, the trial court erred in rebutting the PCSA which it found to be $473, the basis on which it denied the respondent’s amended motion for modifying his child support obligation.

The fact that the PCSA of $473 found by the trial court was a change of more than 20% from the existing child support order of $1,200 does not mean that the parties’ existing support order must be automatically modified. Gordon, 924 S.W.2d at 532. It only constitutes a prima facie case for modification, which can be rebutted, with evidence demonstrating that there has not been a substantial and continuing change of circumstances rendering the existing order unreasonable. Id. at 532-33. Hence, in reversing the trial court’s denial of the respondent’s amended motion to modify child support, the question still remains for the court on remand, from the evidence already presented, whether there has been a substantial and continuing change of circumstances, requiring modification of the existing child support order. In doing so, however, the trial court is not permitted to reconsider its PCSA determination of $473 or allow the appellant the opporttmity to present further evidence to rebut that amount. The appellant had the burden of rebutting the PCSA of $473. She failed in that burden and, as a matter of due process, should not be allowed a second bite of the apple on remand.

Conclusion

The judgment of the Circuit Court of Andrew County, sustaining, in part, and overruling, in part, the respondent’s amended motion to modify child support is affirmed as to its order of abatement of the respondent’s child support obligation from January 1, 2001,. to December 31, 2002, but reversed as to its order denying a reduction in the respondent’s child support obligation, with the case remanded to the court for further proceedings consistent with this opinion.

SPINDEN and HOLLIGER, JJ., concur.

      . All statutory references are to RSMo 2000, unless otherwise indicated.

      . As noted in LaRocca v. LaRocca, 135 S.W.3d 522, 524 (Mo.App. E.D.2004), § 452.375.1 defines "custody” as "joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof,” but does not employ the term “primary physical custody.”

      . Eligibility for support during the first semester of college may be established simply by proof of enrollment. Ricklefs v. Ricklefs, 111 S.W.3d 541, 544 (Mo.App.2003).

      . The appellant includes, as an appendix to her brief, a transcript of a deposition in which she discusses Kathryn’s financial resources and the cost of tuition for one semester. However, the deposition was not admitted into evidence at trial, and was not included in the legal file. Depositions which are only attached to a party’s brief and not contained in the legal file are not part of the record and will not be considered on appeal. Porter v. Toys 'R' Us-Delaware, Inc., 152 S.W.3d 310, 322 (Mo.App.2004); Miller v. City of Kansas City, 121 S.W.3d 313, 318 n. 2 (Mo.App. 2003).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Clifford W. PEARSON, Appellant.
    No. WD 63442.
    Missouri Court of Appeals, Western District.
    July 12, 2005.
    Andrew A. Schroeder, Appellate Defender, Kansas City, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl Caponegro Nield, Associate Solicitor, Jefferson City, MO, for respondent.

      Before HOWARD, P.J., and SMART and NEWTON, JJ.
   ORDER

PER CURIAM.

Appellant, Clifford Pearson, was convicted of one count of murder in the first degree in violation of section 565.020, RSMo 2000, and now appeals. Pearson claims on appeal that the trial court erred in overruling his motions for judgment of acquittal, thereby violating his rights to due process of law and to a fair trial as provided by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 10 and 18(a) of the Missouri Constitution. Pearson argues that the State’s evidence was insufficient to prove the element of deliberation beyond a reasonable doubt.

We have reviewed the parties’ briefs and the record on appeal. No error of law appears. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision.

Affirmed. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Timothy A. SNEAD, Appellant.
    No. WD 62735.
    Missouri Court of Appeals, Western District.
    July 12, 2005.
    Sarah Weber Patel, Assistant Appellate Defender, Kansas City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before: EDWIN H. SMITH, C.J., ULRICH and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Timothy A. Snead appeals the judgment of his convictions, following a jury trial in the Circuit Court of Jackson County, of one count of forcible rape, § 566.080; one count of statutory rape in the second degree, § 566.084; one count of forcible sodomy, § 566.060; and one count of statutory sodomy in the second degree, § 566.064. The appellant was sentenced to concurrent terms in the Missouri Department of Corrections of life for forcible rape and forcible sodomy, and seven years for statutory rape and statutory sodomy.

In his sole point on appeal, the appellant claims that the trial court plainly erred in allowing, over his objection, the State, during its closing argument, to draw an analogy between what happened to the victim and what happened to a venireperson concerning the violation of a trust relationship because, in doing so, the court “allowed the State to argue ... facts that were not in evidence, which personalized the case to the jury, in violation of [the appellant’s] rights to due process of the law and to a fair trial[.]”

We affirm pursuant to Rule 30.25(b).


text:
    Laura A. PFEIFAUF, Respondent, v. John J. PFEIFAUF, Appellant.
    No. WD 63965.
    Missouri Court of Appeals, Western District.
    July 12, 2005.
    Allen S. Russell, Kansas City, MO, for Appellant.
    Jill C. Allison, Kansas City, MO, for Respondent.
    Before ELLIS, P.J., and SPINDEN and HOWARD, JJ.
   ORDER

PER CURIAM.

Appellant John Pfeifauf (“Husband”) appeals from a judgment dissolving his marriage to Respondent Laura Pfeifauf (‘Wife”) in the Circuit Court of Jackson County. Husband argues two points on appeal. In Point I, Husband argues the trial court’s division of marital property was not supported by substantial evidence. In Point II, Husband argues the trial court erroneously calculated the amount of retroactive child support owed by Husband to Wife.

We have reviewed the parties’ briefs and the record on appeal. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision. Pursuant to Rule 84.16(b), the judgment of the trial court is affirmed. Pursuant to Rule 84.14, an erroneous calculation in the judgment is amended, by agreement of the parties, to reduce Husband’s obligation for retroactive child support to $15,310.


text:
    STATE of Missouri, Respondent, v. Cornelius DUPREE, Appellant.
    No. ED 84292.
    Missouri Court of Appeals, Eastern District, Division Four.
    July 12, 2005.
    Lisa M. Stroup, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald S. Ribaudo, Jefferson City, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Cornelius Dupree appeals the judgment entered upon a jury verdict finding him guilty of murder in the first degree and armed criminal action. We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would serve no jurisprudential purpose. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. David J. LEE, Appellant.
    No. ED 84179.
    Missouri Court of Appeals, Eastern District, Division One.
    July 12, 2005.
    David J. Lee, St. Louis, pro se.
    Andrew D. Hale, Assistant Prosecuting Attorney, Clayton, for respondent.
    Before GARY M. GAERTNER, P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, David J. Lee (“Defendant”), appeals from the judgment of the Circuit Court of St. Louis County finding him guilty of tampering in the second degree, section 569.090, RSMo 2000 . Defendant waived his right to a jury trial. After a bench trial, Defendant was found guilty of one count of tampering in the second degree, section 569.090. On January 30, 2004, the trial court sentenced Defendant to pay a $1,000 fine, but suspended execution and placed Defendant on probation for a period of two years. As a special condition of probation, the court ordered Defendant to make restitution of $1,075.88 within thirty days. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 30.25(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

      . All statutory references are to RSMo 2000 unless otherwise indicated.


text:
    In the Interest of A.T.O. JR. and D.D.O., Minors.
    No. ED 85505.
    Missouri Court of Appeals, Eastern District, Division Four.
    July 12, 2005.
    Alice A. O’Keefe, Clayton, MO, for Appellant.
    Donna L. Head, St. Louis, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Appellant A.T.O., Sr., appeals two family-court judgments entered in the circuit court of the city of St. Louis terminating his parental rights to his minor children A.T.O., Jr., and D.D.O. We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would serve no jurisprudential purpose. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).


author: WILLIAM M. BARKER, J.,

text:
    Robert D. WALSH v. STATE of Tennessee.
    Supreme Court of Tennessee, at Jackson.
    April 2005 Session.
    June 24, 2005.

      C. Michael Robbins, Memphis, Tennessee, for the appellant, Robert D. Walsh.
    Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Elizabeth T. Ryan, Assistant Attorney General, for the appellee, State of Tennessee.
   OPINION

WILLIAM M. BARKER, J.,

delivered the opinion of the court in which

FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, ADOLPHO A. BIRCH, Jr., and JANICE M. HOLDER, JJ., joined.

This case comes before us on appeal from a denial of post-conviction relief. The petitioner sought relief from his conviction for aggravated sexual battery, raising several claims including that he was denied his right to a fair and impartial jury trial because of an improper communication by a court officer to the jury during deliberations. During the hearing on the post-conviction petition, the court heard testimony from a juror regarding the content of the communication and also the subjective effect of the officer’s statement upon the juror. At the close of the hearing, the trial court found that the improper communication had not influenced the verdict and therefore denied the petition for post-conviction relief. Upon review, the Court of Criminal Appeals affirmed. In this Court, the petitioner challenges admission of the juror’s testimony relating to the effect of the court officer’s statement on the juror. After thorough consideration, we reverse the Court of Criminal Appeals. We hold that Tennessee Rule of Evidence 606(b) prohibits introduction of juror testimony concerning the effect on the juror of an improper communication by a court officer during jury deliberations.

Facts

In 1998, the petitioner was indicted in Shelby County on charges of aggravated sexual battery and rape of a child. A criminal court jury found the petitioner guilty of aggravated sexual battery, but not guilty of rape. The trial court sentenced the petitioner to a term of ten years imprisonment. Upon appeal, the Court of Criminal Appeals affirmed the conviction, but modified the sentence to allow the petitioner to be eligible for release after serving thirty percent of his sentence, rather than one-hundred percent as ordered by the trial court. See State v. Robert D. Walsh, W1999-01473-CCA-R3-CD, 2001 WL 91949 (Tenn.Crim.App. Jan.30, 2001). The petitioner was denied permission to appeal the conviction in this Court.

In June 2002 the petitioner filed a petition for post-conviction relief, alleging, among other things, that he had been denied his right to a fair and impartial jury trial due to an improper communication to the jury by a deputy sheriff who was acting as a court officer. At a hearing on the petition on May 2, 2003, one of the witnesses called to testify was Linda Busby, who had been one of the jurors in the petitioner’s trial.

Ms. Busby testified that at one point during deliberations, she and' the other jurors had voted unanimously to find the petitioner not guilty of rape of a child. However, the vote on the charge of aggravated sexual battery had been divided, with eleven jurors voting guilty and one voting not guilty. Ms. Busby was the lone dissenting vote.

Sometime after this vote was taken, a court officer entered the jury room and was told by one of the other jurors that the jury could not reach a decision on one of the charges. Then, according to Ms. Busby, the court officer made a statement to the effect that the jury was required to make a decision. Although Ms. Busby could not recall the officer’s exact words, she testified that he “almost jokingly or kind of laughed [and] said, ‘you have to’ or ‘you must’ or something to that effect. You have to reach a decision.’ ” Ms. Busby was convinced that the other members of the jury also heard the officer’s remark. After this exchange with the court officer, another ballot was taken, and the jury returned a unanimous verdict of guilty on the charge of aggravated sexual battery.

On cross-examination, the State asked Ms. Busby a series of questions touching upon the effect of the officer’s statement upon her deliberations. Pertinent portions of this cross-examination were as follows:

Q (by the State): This motion that’s pending before Judge Bennett right now indicates that because of what this deputy said that you, Ms. Busby, changed your vote from not guilty to guilty.
A (by Ms. Busby): It was not because of what he said. I mean, it made me realize that I did have to make a decision. But, I made the decision to change my vote, I believe, because I’m obviously not a very self-confident person. And, I felt that if eleven other people felt he was guilty, I thought it was something wrong with me that I couldn’t see that.
Q: This motion says that you felt that you were required—
A: No.
Q: To reach a verdict and find him guilty?
A: No, I have been on other juries and I’m sorry, that’s not true.
Q: This motion also says that you felt that you had,, and I’m going to quote this directly. “Ms. Busby felt that she had to make a decision in line with the other eleven jurors.” End of quote. Is that a correct statement?
A: No, sir.
Q: Are you telling Judge Bennett that you reached- a verdict on this case and the verdict that you did reach was your own independent verdict?
A: Yes, it was.
Q: - Are you telling the Court that you found Mr. Walsh guilty of aggravated child abuse only because of the statements made to you by the deputy?
A: No.
Q: Why did you reach the verdict that you reached, Ms. Busby?
A: Well, I think I just stated that. That after sitting there and I had everyone at the table go around and tell me again why they felt that he was guilty. And, I just felt it must be something wrong with me that I could not see it. And, I never did see it. But, I felt that I needed to go with them because of that. Because of my lack of self-confidence.
Q: Did anybody put any pressure on you in order for you to reach that decision?
A: No.
Q: Did anybody force you in order to get you to reach that decision?
A: No.
Q: Do you feel as if anybody engaged or exerted any improper influence upon you in order for you to reach that decision?
A: No.
Q: Did any of the other eleven members of the jury ever state to you that they felt they were reaching a, on voting a certain way because of what a deputy may have said to them?
A: No.

Neither the court officer nor any of the other jurors were called to testify about these events. Therefore, based upon Ms. Busby’s testimony, the court found that an improper communication had been made to the jury, but that this communication had not affected the verdict. Accordingly, the court denied post-conviction relief on this ground.

The petitioner appealed to the Court of Criminal Appeals which, upon review, agreed that the court officer’s statement to the jury had been improper. The court also recognized that the improper communication raised a presumption of prejudice which the State was required to sufficiently rebut in order to sustain the verdict. The court was of the opinion, however, that there would be no way for the State to rebut this presumption without allowing the juror to testify about how the court officer’s statement may have influenced her. Therefore, the Court of Criminal Appeals held that admission of the juror’s testimony was proper and affirmed the denial of post-conviction relief. We granted permission to appeal to address whether a juror may testify about the effect on his or her deliberative process of an improper communication to the jury by a court officer during deliberations.

Analysis

We first address the State’s argument that the issue of improper influence on the jury has been waived by the petitioner due to his failure to raise it during his direct appeals. However, the State did not assert the defense of waiver at the post-conviction hearing; instead, the State raises it for the first time in this Court. By doing so, the State has denied the petitioner an opportunity to rebut the presumption that this issue has been waived. See Tenn.Code Ann. § 40-30-110(f) (2003) (providing that “[t]here is a rebuttable presumption that a ground for relief not raised before a court of competent jurisdiction in which the ground could have been presented is waived”) (emphasis added). Under these circumstances, we conclude that the State’s waiver argument has itself been waived. Issues not addressed in the post-conviction court will generally not be addressed on appeal. See Rickman v. State, 972 S.W.2d 687, 691 (Tenn.Crim.App.1997); see also State v. White, 635 S.W.2d 396, 397-98 (Tenn.1982) (rejecting an argument presented by the State for the first time on appeal). We conclude therefore that the State may not properly assert the issue of waiver for the first time in this Court.

We now proceed to the central issue in this case — whether the jury’s verdict was tainted due to improper influence during deliberations. The parties do not dispute that the court officer made an improper statement to the jury. The dispute centers around how the post-conviction court arrived at its conclusion that the statement did not affect the verdict. The petitioner argues that allowing the State to cross-examine the juror regarding the effect of the court officer’s statement impermissibly delved into the juror’s internal thought processes and motivations during deliberations, thus violating Tennessee Rule of Evidence 606(b). Rule 606(b) provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon any juror’s mind or emotions as influencing that juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes, except that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the jury’s attention, whether any outside influence was improperly brought to bear upon any juror, or whether the jurors agreed in advance to be bound by a quotient or gambling verdict without further discussion; nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

In State v. Blackwell, 664 S.W.2d 686 (Tenn.1984), this Court adopted Federal Rule of Evidence 606(b), now embodied as Tennessee Rule of Evidence 606(b), as “the rule governing the exclusion and admissibility of evidence to impeach a jury verdict in this State.” Id. at 688; see also State v. Parchman, 973 S.W.2d 607, 612 (Tenn.Crim.App.1997). We recognized in Blackwell that Rule 606(b) was essentially a codification of established Tennessee law in this respect. Blackwell, 664 S.W.2d at 688. Rule 606(b) is “grounded in the common-law rule against admission of jury testimony to impeach a verdict and the exception for juror testimony relating to extraneous influences.” Tanner v. United States, 483 U.S. 107, 121, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987). The rule promotes full and frank discussion in the privacy of the jury room and protects jurors from harassment by the losing party who might seek to impeach the verdict. Id. at 108, 107 S.Ct. 2739. Thus, the overarching purpose of both the federal and Tennessee Rule 606(b) is to protect the integrity of the jury’s deliberative process. See id. at 119— 20, 107 S.Ct. 2739; see also Caldararo v. Vanderbilt Univ., 794 S.W.2d 738, 741 (Tenn.Ct.App.1990).

To this end, a juror is not permitted to testify about anything occurring during deliberations, including the juror’s own internal thoughts, motivations, or emotions. Tenn. R. Evid. 606(b); Blackwell, 664 S.W.2d at 688. The rule does, however, make an exception in three circumstances, allowing juror testimony if there has been: (1) extraneous prejudicial information, (2) outside influence, or (8) an antecedent agreement to be bound by a quotient or majority result. Tenn. R. Evid. 606(b); Cavalier Metal Corp. v. Johnson Metal Controls, 124 S.W.3d 122, 127 (Tenn.Ct.App.2003). Further, when it has been shown that a juror was exposed to extraneous prejudicial information or subjected to improper influence, a rebutta-ble presumption of prejudice arises, and the burden shifts to the State to explain the conduct or demonstrate that it was harmless. Blackwell, 664 S.W.2d at 689; Parchman, 973 S.W.2d at 612.

Although adopted in 1984, the scope of inquiry permitted under Rule 606(b) remains an unsettled issue in this state. In some instances the rule has been interpreted as permitting juror testimony only as to the existence of extraneous information or outside influence and not to the subjective effect of that information or influence on the juror’s deliberative process. See Carruthers v. State, 145 S.W.3d 85, 95-96 (Tenn.Crim.App.2003); Montgomery v. State, 556 S.W.2d 559, 561 (Tenn.Crim.App.1977). In other cases, courts have permitted juror testimony not only to establish the fact of extraneous information or outside influence, but also as to the effect of that information or influence on the juror’s mental processes. See Cavalier Metal Corp., 124 S.W.3d at 130; Parchman, 973 S.W.2d at 614.

For instance, in Parchman, the defendant was convicted of two counts of sale of cocaine. 973 S.W.2d at 610. It was later discovered that during the jury’s deliberations a bailiff had made an improper communication to the jury. The jury had been at an impasse regarding one of the charges, and one of the jurors decided to inform the court. However, rather than speaking with the judge, the juror spoke with a bailiff who informed the juror they would be required to deliberate until a verdict was reached. The jury then voted unanimously to find the defendant guilty. When called later to testify about the conversation, the bailiff stated that the juror had asked whether they could “find her guilty on one charge and not guilty on the other?” The bailiff testified that his only response was, “Yes.” The court found that regardless of what the bailiff actually said, the jurors believed that the bailiffs statement had been that a verdict was required. Id. at 613. This extraneous information raised a presumption of prejudice and shifted the burden to the State to show the information was harmless in order to sustain the verdict. Id. By presenting only the testimony of the bailiff, the court concluded that the State had failed to sufficiently rebut this presumption, thus warranting a new trial. Id. at 614.

Then, in dicta, the Parchman court offered that to rebut the presumption of prejudice, “[i]t would have been possible to call the jurors to testify whether they were influenced by the statement.” Id. However, we conclude that the intermediate court’s interpretation of Rule 606(b) in Parchman conflicts with that of the majority of other courts having addressed the issue. The predominant view among other jurisdictions is that juror testimony regarding the subjective effect of extraneous information or outside influence on the juror’s internal thoughts or deliberative processes is not permitted. See, e.g., Larson v. State, 79 P.3d 650, 654 (Alaska Ct.App.2003); Lewis v. Pearson, 262 Ark. 350, 556 S.W.2d 661, 663-64 (1977); Wiser v. People, 732 P.2d 1139, 1142 (Colo.1987); Flonnory v. State, 778 A.2d 1044, 1053-54 (Del.2001); People v. Hobley, 182 Ill.2d 404, 231 Ill.Dec. 321, 696 N.E.2d 313, 339 (1998); Griffin v. State, 754 N.E.2d 899, 902 (Ind.2001); Lund v. McEnerney, 495 N.W.2d 730, 733-34 (Iowa 1993); State v. Wisham, 384 So.2d 385, 387 (La.1980); State v. Cox, 322 N.W.2d 555, 559 (Minn.1982); State v. Mann, 131 N.M. 459, 39 P.3d 124, 129 (2002); State v. Lyles, 94 N.C.App. 240, 380 S.E.2d 390, 394 (1989); State v. Crowell, 92 Wash.2d 143, 594 P.2d 905, 907 (1979). This is also the law in virtually every federal circuit to have addressed the issue. See United States v. Gonzales, 227 F.3d 520, 525 (6th Cir.2000); Mahoney v. Vondergritt, 938 F.2d 1490, 1492 (1st Cir.1991); United States v. Ortiz, 942 F.2d 903, 909 (5th Cir.1991); Haugh v. Jones & Laughlin Steel Corp., 949 F.2d 914, 917-18 (7th Cir.1991); United States v. Maree, 934 F.2d 196, 201 (9th Cir.1991); Capps v. Sullivan, 921 F.2d 260, 263 (10th Cir.1990); United States v. Small, 891 F.2d 53, 56 (3rd Cir.1989); Stockton v. Virginia, 852 F.2d 740, 744 (4th Cir.1988); United States v. Sjeklocha, 843 F.2d 485, 488 (11th Cir.1988); United States v. Moon, 718 F.2d 1210, 1235 (2nd Cir.1983).

A good analysis of the issue is found in Haugh v. Jones &-Laughlin Steel Corp., 949 F.2d 914 (7th Cir.1991), which involved a trial in federal district court. After the jury rendered its verdict and was discharged, the jury foreman informed the judge that a marshal who had overseen the jury during deliberations had told its members that there was no such thing as a hung jury. Id. at 915. The judge held a hearing on the matter, questioning the marshal and each of the jurors to determine if the statement had actually been made. The marshal testified that he had been asked by a juror how long they would have to stay in the courthouse if a verdict could not be reached, to which he had replied, “[y]ou just have to keep deliberating.” Id. at 916. Then, in questioning the jurors, the trial court judge inquired not only whether each of the jurors had heard the marshal’s remark, but also how the remark had influenced each juror. The judge posed questions such as, “[F]or what reason did you [render this verdict], because you believed in the verdict or because you wanted to go home?” Id. at 918. Concluding that there was a reasonable possibility that the statement had influenced the verdict, the court ordered a new trial.

Upon review, the Seventh Circuit Court of Appeals held that the judge’s questions concerning the effect of the marshal’s statement on the jurors had been improper. Id. The Court of Appeals held that Rule 606(b) prohibited the questioning of jurors regarding the impact of extraneous information or outside influence on their deliberations. Id. According to the court, the proper procedure under Rule 606(b) is .

for the judge to limit the questions asked the jurors to whether the communication was made and what it contained, and then, having determined that the communication took place and what exactly was said, to determine — without asking the jurors anything further and emphatically without asking them what role the communication played in their thoughts or discussion — whether there is a reasonable possibility that the communication altered their verdict.

Id. at 917.

We agree with the foregoing interpretation of Rule 606(b). We also note that this view is not a recent development in the law. It was, in fact, held more than a century ago that a juror “may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind.” Mattox v. United States, 146 U.S. 140, 149, 13 S.Ct. 50, 36 L.Ed. 917 (1892). As noted, federal courts generally continue to follow the Mattox rule. See 2 Federal Rules of Evidence Manual 905 (7th ed.1998).

We conclude that this approach is in keeping with the goals of Rule 606(b) to protect the integrity of the deliberative process, encourage frank and open discussion among the jurors, and promote finality of jury verdicts. Prohibiting inquiry into the jurors’ thought processes and motivations during deliberations also secures the proper relationship of the jury to the judge and the law. The right to a trial in which a jury serves as the ultimate finder of fact and arbiter of guilt or innocence “is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.” Blakely v. Washington, 542 U.S. 296,-, 124 S.Ct. 2531, 2538-39, 159 L.Ed.2d 403 (2004).

For the foregoing reasons, we hold that Tennessee Rule of Evidence 606(b) permits juror testimony to establish the fact of extraneous information or improper influence on the juror; however, juror testimony concerning the effect of such information or influence on the juror’s deliberative processes is inadmissible. In the case now before us, we conclude that it was error for the post-conviction court to consider the juror’s testimony regarding the effect of the court officer’s statement on her decision making process. The juror’s testimony that the statement had been made was properly considered and raised a presumption of prejudice to the petitioner. The only evidence presented by the State to rebut this presumption was the inadmissible cross-examination testimony of this juror. The State could have called the court officer to testify as to whether he actually made the statement, or the other members of the jury could have been asked whether they heard the statement. However, as no other proof was presented on this issue at the hearing, we conclude that the State failed to sufficiently rebut the presumption of prejudice to the petitioner. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand this case for a new trial.

Before concluding this issue, some additional discussion is in order. In reviewing the facts of this case, we see no ill intent by the court officer in making the statement to the jury. It was apparently no more than an “off the cuff’ remark given during a short exchange with a juror, without any thought of its possible effect on the jury. We realize that a court officer’s job places him or her in a position where some informal conversation with jurors is inevitable. Therefore, we take this opportunity to strongly caution officers against making any potentially prejudicial remarks to jurors. In doing so, we do not intend to discourage cordial relations between court officers and jurors. Jury service is “ ‘the highest obligation of citizenship [and] should be an interesting and rewarding experience to be looked back on with interest and pleasant recollection by those who are privileged to be selected.’ ” Carruthers, 145 S.W.3d at 93 (quoting State v. Pennell, 583 A.2d 1348, 1353 (Del.Super.1990)). To that end, the court officer’s role is vital. But at the same time, these officers must carefully guard against making any statements of law or prejudicial comments to jurors. Court officers act as representatives of the court, and they must recognize the official character of their position will cause their comments to carry great weight in the eyes of the jury. Thus, we again stress the importance of closely guarding all comments made in the presence of jurors.

Conclusion

To summarize, we hold that Tennessee Rule of Evidence 606(b) does not permit juror testimony as to the effect of any extraneous information or improper influence on the juror’s deliberations. Therefore, the post-conviction court erred in admitting juror testimony in this regard during the petitioner’s post-conviction hearing. The court officer’s improper statement to the jury created a presumption of prejudice which the State failed to overcome. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and the case remanded for a new trial.

Costs of this appeal are taxed to the State of Tennessee.

      . Federal Rule of Evidence 606(b) and the current Tennessee Rule of Evidence 606(b) differ only in one respect. The Tennessee rule contains the additional exception allowing for juror testimony in a case where "the jurors agreed in advance to be bound by a gambling or quotient verdict.”

      . The Caldararo court expounded on the purpose of the rule as follows:
      [Rule 606(b)] represents a compromise between important public policies. It enables the courts to protect the litigants from verdicts tainted by extraneous prejudicial information or outside influence. At the same time, it recognizes the importance of the inviolate nature of a jury's deliberations.... The rule precludes inquiries into the jury’s deliberative process while allowing juror testimony concerning objective incidents or events that constitute external or extraneous influences on the jury.... Thus, it insures that jurors will not be guarded in their deliberations for fear of later scrutiny by others. It also prevents jurors whose views are in the minority from manipulating the system by repudiating the verdict and thereby requiring a new trial.

        Id. at 741-42 (citations omitted).

      . Although the court in Haugh was interpreting Federal Rule of Evidence 606(b), rather than the Tennessee rule, the federal court’s interpretation provides helpful guidance to our own analysis because the two rules are virtually identical. See Caldararo, 794 S.W.2d at 741 n. 3; Cont’l Cas. Co. v. Smith, 720 S.W.2d 48, 49 (Tenn. 1986).