author: NANNETTE A. BAKER, Judge.

text:
    Marianne Fuller RICHMOND, Respondent, v. Russell Forrest RICHMOND, Sr., Appellant.
    Nos. ED 84635, ED 84699.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 7, 2005.
    Steven W. Garrett, Clayton, MO, for appellant.
    Susan M. Hais, Clayton, MO, for respondent.
   NANNETTE A. BAKER, Judge.

Russell Richmond (“Father”) appeals from the final order and judgment of dissolution of marriage awarding child support and maintenance to Marianne Richmond (“Mother”), and dividing property and debts of the marriage. Father claims ten points on appeal. We deny nine of these claims and find that no jurisprudential purpose would be served by an exposition of the detailed facts and law. Rule 84.16(b).

Viewed in the light most favorable to the judgment, the evidence shows the following: Mother and Father were married on June 11, 1989. Two children were born during the marriage, RFR on November 7, 1990, and SFR on February 16,1998. The parties separated twice during their marriage, lastly on March 28, 2003. On August 26, 2003, there was a Judgment Pending Dissolution Proceeding, and on April 13, 2004, the marriage was dissolved in St. Louis County Circuit Court. Father and Mother were awarded joint legal and physical custody of the minor children, with Mother named the residential parent. The parties agreed on a parenting plan prior to the final order, which included the children continuing to attend private schools.

At the time of trial, Mother was a graduate student in Social Work at Washington University, and was due to graduate in May 2004, after which she would need to complete two years of supervision before taking a licensing exam. Mother had no current income. Father claimed income of only $50,000 annually, despite the apparent success of his company, Richmond Group, Inc. (“RGI”). Prior to starting RGI in 1996, Father held various executive positions with different companies, earning annual salaries of between $150,000 and more than $250,000.

Mother offered the testimony of a vocational expert, Dr. Philip Lorenz (“Lorenz”). After evaluating Father’s work history and the market in which Father works, Lorenz determined that Father should be earning a salary between $150,000 and $175,000 per year. Lorenz also used Father’s deposition and tax returns in making his determination that Father’s current salary is not consistent with his earning ability.

The trial court imputed income to Father of $150,000 per year, for a gross monthly income of approximately $12,500. The court based its findings on Father’s experience and work history; his earnings record; and the monies deposited into his business account for the months of January and February, 2004. The trial court also found that Father had monthly expenses of $4,306.

Although Mother has not worked full-time since 1991, the trial court found that she had previously earned $70,000 per year. In recent years, working part-time, Mother earned between $12,260 and $21,000 per year. The trial court imputed income to Mother in the amount of $2,000 per month, based on her work experience, earnings history, and education. Mother’s average net monthly expenses were approximately $7,682.

Based on the above facts, the trial court ordered Father to pay Mother $2,000 per month for periodic maintenance, and $1,337 for support of the two minor children. In its order, the trial court ordered the maintenance and child support to be paid retroactive to May 14, 2003, which was the date Mother filed her Petition for Dissolution. Father asserts that the proper date for retroactive maintenance is the date Mother filed her Motion for Temporary Maintenance. However, that date is unclear from the record. He claims that awarding maintenance retroactive to the Petition for Dissolution is a misapplication of the law. We agree.

The standard of review for appellate action in a dissolution of marriage is that we will affirm the trial court’s judgment of dissolution unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Colquitt v. Muhammad, 86 S.W.3d 144, 148 (Mo.App. E.D.2002). Section 452.335, which governs requirements for maintenance, speaks only prospectively, not retroactively; therefore, a maintenance award ordered in the judgment of dissolution cannot be made retroactive. Id. However, Section 452.315, which governs awards of temporary maintenance, has been interpreted to allow a retroactive award of temporary maintenance to the date the motion for temporary maintenance was filed. Id. It is clear that an award of retroactive maintenance may be made retroactive only to the date the motion for temporary maintenance was filed. Id. at 149. See also, In re Marriage of Lindeman, 140 S.W.3d 266 (Mo.App. S.D. 2004).

In the case at hand, Mother filed her Petition for Dissolution on May 14, 2003, and filed her Motion for Temporary Support on some later date, which is not clear from the record. Two dates for a PDL filed by Mother are cited in the ease record, July 8, 2003, and July 23, 2003. It is unclear which of these motions is the Motion for Temporary Support. The Amended Judgment of Dissolution of Marriage, dated April 13, 2004, ordered Father to pay Mother maintenance in the sum of $2,000 per month, retroactive to May 14, 2003, for a total of back maintenance in the amount of $20,000 through the date of the Order. The trial court misapplied the law in failing to order the maintenance retroactive only to the date of the Motion for Temporary Support. Point sustained.

We reverse and remand on this point only, to the trial court to recalculate the amount of retroactive maintenance only to the date of Mother’s Motion for Temporary Support, in accordance with the instructions of this court.

We have reviewed Father’s nine remaining points and the record on appeal, and we find no error of law. No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the remainder of the judgment pursuant to Rule 84.16(b).

CLIFFORD H. AHRENS, P.J., and GLENN A. NORTON, J., concur.

      . The parties have been furnished with a memorandum, for their information only, setting forth the reasons for our decision pursuant to Rule 84.16(b). These allegations of error assert that the trial court erred in its finding the amount of Father’s imputed income and, based on that finding: (1) improperly awarded amounts of child support and maintenance to Mother; (2) ordered Father to pay 50% of the cost of children's private school; and (3) extracurricular activities; and (4) awarded retroactive child support to Mother. Father also alleges that the trial court erred in: (5) refusing to allow Father’s accountant to testify regarding 2003 tax return; (6) awarding Mother 50% of the value of Father’s frequent flyer miles; (7) ordering Father to pay Mother’s attorney fees; (8) not awarding Father his separate property; and (9) not quashing Mother’s writ of execution and levy on Father's train set.

      . This court has reviewed the Motions taken with the case. Respondent's Motion to Dismiss Appeal and Motion to File supplemental Legal File are denied.


source: Caselaw Access Project

author: SHERRI B. SULLIVAN, J.

license: Public Domain

text:
    Jonah Edward NICHELSON, a Minor, by Marilyn Jeanne LOHRASBI, Next Friend, and Marilyn Jeanne Lohrasbi, Individually, Petitioners/Respondents, v. Troy Eugene ROBERTS, Respondent/Appellant.
    No. ED 84657.
    Missouri Court of Appeals, Eastern District, Division One.
    June 7, 2005.

      Susan Kreher Roach, Clayton, MO, for Appellant.
    Jonah Edward Nickelson, O’Fallom, pro se.
    Marilyn Lohrasbi, O’Fallon, MO, for Respondent.
   SHERRI B. SULLIVAN, J.

Introduction

Troy Eugene Roberts (Father) appeals from a trial court judgment denying his Motion to Modify an amended paternity judgment (Paternity Judgment) and ordering him to pay to Marilyn Jeanne Lohrasbi (Mother) a portion of her attorney’s fees. Father alleges the trial court erred in not modifying the amount of child support he was ordered to pay to Mother under the Paternity Judgment and in ordering Father to pay to Mother a portion of her attorney’s fees. We reverse and remand in part and affirm in part.

Factual and Procedural Background

On December 18, 2002, at trial on a paternity action regarding Jonah Edward Nichelson (Child), Father introduced a Notice and Finding of Financial Responsibility, dated December 17, 2002, and issued by the Division of Child Support Enforcement (DCSE), advising Father that, effective January 15, 2003, he would be required to pay $1,404 per month for the support of two children. The notice specifically stated that it was not an “order” and advised Father as to how he might challenge its finding of financial responsibility. Father did not inform the trial court that on December 17, 2002, Father also signed an administrative consent order, issued by the DCSE, obligating himself, effective January 15, 2003, to pay $1,404 per month for the support of two children.

On January 6, 2003, the trial court entered the Paternity Judgment declaring Father to be the natural father of Child. The Paternity judgment awarded Mother sole legal and physical custody of Child. The Paternity Judgment ordered Father to pay to Mother $760 in monthly child support, as well as amounts for reimbursement of necessaries, attorney’s fees, and guardian ad litem fees. Relying on the Notice and Finding of Financial Responsibility, the trial court found in the Paternity Judgment that “Father has one, possibly two other children, but they are not in his actual custody and he has not been ordered to pay child support for either of them.” Thus, the court did not calculate the Form 14 in the paternity action using a Line 2a adjustment for Father.

On June 5, 2003, Father filed a Motion to Modify the Paternity Judgment, requesting, among other things, a modification in the amount of ordered child support. Father alleged the following substantial and continuing change of circumstances required modification:

That [Father] is providing support for two other minor children and the [Paternity Judgment] did not take into consideration at that time payments by [Father] for child support for two other minor children in computing child support payments regarding [Child].

At the hearing on the motion, Father introduced the administrative consent order issued by the DCSE that had been filed with the Circuit Clerk of St. Louis County on January 21, 2003, obligating Father to pay $1,404 per month for the support of two children. Also, Father testified that he was represented by counsel at the paternity action and that he believed that the administrative consent order was not brought to the trial court’s attention at the paternity action because it was not final yet.

On June 24, 2003, Mother filed a cross-motion for contempt arguing that Father had willfully and contumaciously failed to pay the child support, reimbursement of necessaries, attorney’s fees, and guardian ad litem fees ordered under the Paternity Judgment.

The trial court entered a judgment denying Father’s Motion to Modify, as well as Mother’s cross-motion for contempt. In its judgment, the trial court found that had Father informed the trial court at the paternity action that he had signed the administrative consent order on December 17, 2002, “the Court would have been required to give Father a $1,404 credit, the very credit that he now seeks, on Line 2a of its Form 14. The credit allowed on Line 2a of Form 14 applies to both court and ‘administrative’ orders.” The trial court also found unpersuasive Father’s argument that the administrative consent order of December 17, 2002 was not really an “order” -until it was filed with the Circuit Clerk of St. Louis County on January 21, 2003. In denying Father’s Motion to Modify, the trial court concluded:

The Court was aware, at the time of the original trial, of Father’s impending child support obligation for his two other children. Father was only denied the Line 2a credit, because he led the Court to believe that he was not yet obligated to support those children. This Father did, knowing full well a consent administrative child support order had already been entered and would indeed go into effect on January 15, 2003. Essentially, Father argues that, on the basis of facts that existed at the time of the original trial, the Court should now modify his child support obligation. With Father having withheld from the Court the very order he now relies upon to support his motion to modify, the Court finds no ‘change in circumstances’ sufficient to support a modification of the original child support award.

The judgment also ordered Father to pay to Mother $7,500 for a portion of her attorney’s fees. The trial court noted that the incomes of the parties are almost identical and both parties have working spouses and neither party was the “prevailing party.” Regarding the award of attorney’s fees, the court found:

Relying upon Section 452.355.2, RSMo, Mother seeks reasonable attorney’s fees and costs. Undoubtedly, Mother’s cross-motion for contempt ‘encouraged’ Father, in July 2003, to consent to the transfer of $2,705.00 from his lawyer’s trust account to the Family Support Payment Center. Similarly, Father’s consent, in September 2003, to the transfer of over $10,000 from his retirement savings plan to satisfy the necessaries judgment mooted a major portion of Mother’s cross-motion for contempt. The major goal of Mother’s cross-motion for contempt having thus been accomplished, her litigation expenses should have been greatly reduced.
Mother has, however, been required to continue defending Father’s motion to decrease child support. For the reasons set forth above, the Court finds that Mother’s attorney’s fees were unnecessarily increased by Father’s actions in pursuing a motion of questionable merit. Father appeals from the judgment denying his Motion to Modify.

Standard of Review

Our review of a judgment on a motion to modify is governed by the principles enunciated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Rustemeyer v. Rustemeyer, 148 S.W.3d 867, 870 (Mo.App. E.D.2004). We will affirm the judgment of the trial court unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32.

Discussion

Father raises three points on appeal. In his first point, Father argues that the trial court erred in not considering the administrative consent order to determine whether Father met his burden of proving a substantial and continuing change of circumstances since entry of the Paternity Judgment.

The provisions of any judgment respecting child support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable. Section 452.370.

In the Paternity Judgment, the trial court specifically stated that Father had not been ordered to pay child support for two other children. At the hearing on the Motion to Modify, Father introduced an order obligating him to pay child support for two other children. As the trial court stated in its judgment denying the Motion to Modify, had Father been ordered to pay child support for two other children, as he now is obligated to do, the court would be required to calculate child support for Child under Form 14 with a Line 2a adjustment. Even though we defer to the trial court’s determination of not being persuaded by Father’s argument that the administrative consent order of December 17, 2002 was not really an “order” until it was filed with the Circuit Clerk of St. Louis County on January 21, 2003, we cannot conclude that Father deliberately misled the trial court to believe that he was not yet obligated to support the two other children, as doing so would not have been to his benefit. It is illogical that Father would have intentionally withheld information that he knew would reduce the amount of his child support obligation for Child and then have the additional burden of fifing a motion to modify. Additionally, Father was not actually paying the child support for the two other children at the time the Paternity Judgment was entered.

Further, in its judgment denying the Motion to Modify, the trial court stated that the court was aware, at the time of the original trial, of Father’s impending child support obligation for the two other children. However, although expected changes are presumed to be taken into consideration in the original judgment, Rustemeyer, 148 S.W.3d at 871, the court did not take such information into consideration in calculating the Form 14 in the paternity action. Therefore, we conclude that the child support terms of the Paternity Judgment are unreasonable, and the trial court erred in not modifying the judgment accordingly. Father’s point one on appeal is granted.

In his second point on appeal, Father argues that the trial court erred in not properly considering the following evidence to determine whether Father met his burden of proving a substantial and continuing change of circumstances since entry of the Paternity Judgment: (1) Father’s “zero paycheck”; (2) Mother’s increase in income; and (3) Father’s indebtedness.

In his Motion to Modify, Father did not allege these circumstances as a basis for modification and accordingly, the trial court did not address them in its judgment under its discussion of the child support issue. We will not, on review, hold a trial court in error on an issue that was not put before it to decide. St. Louis Univ. v. Transport Life Ins. Co., 842 S.W.2d 561, 563 (Mo.App. E.D.1992). Accordingly, Father’s point two on appeal is denied.

In his third point on appeal, Father argues that the trial court erred in awarding to Mother a portion of her attorney’s fees in the amount of $7,500.

The trial court after considering all relevant factors, including the financial resources of both parties, the merits of the case and the actions of the parties during the pendency of the action, may order a party to pay a reasonable amount for attorney’s fees. Section 452.355.1. In any proceeding in which the failure to pay child support pursuant to a final judgment is an issue, if the court finds that the obligor has failed, without good cause, to comply with such a judgment to pay the child support, the court shall order the obligor, if requested and for good cause shown, to pay a reasonable amount for the cost of the suit to the obligee, including reasonable sums for legal services. Section 452.355.2. We will reverse a trial court’s order of attorney’s fees only upon a showing of abuse of discretion by the trial court. Schwartzkopf v. SchwaRzkopf, 9 S.W.3d 17, 24 (Mo.App. E.D.1999).

In her cross-motion for contempt, Mother sought attorney’s fees under Section 452.355.2. In its judgment, the trial court found that Father was not in contempt for failing to pay child support. Therefore, Mother is not entitled to attorney’s fees under Section 452.355.2.

In its judgment, the trial court also considered Mother’s request for attorney’s fees under Section 452.355.1. The court found that the incomes of the parties are almost identical and both parties have working spouses and neither party was the “prevailing party,” but that Mother’s attorney’s fees were unnecessarily increased by Father’s actions in pursuing a motion of questionable merit. In light of our finding merit in Father’s Motion to Modify, we conclude that the trial court abused its discretion in ordering Father to pay to Mother $7,500 for a portion of her attorney’s fees. Accordingly, Father’s point three on appeal is granted.

Conclusion

The judgment of the trial court denying Father’s Motion to Modify is reversed and the cause is remanded for the trial court to recalculate Father’s child support obligation using a Form 14, Line 2a adjustment for the child support being paid under the administrative consent order. The judgment of the trial court is reversed as to the order of attorney’s fees. In all other respects, the judgment of the trial court is affirmed. The costs on appeal shall be borne by Respondents.

GARY M. GAERTNER, SR., P.J., and BOOKER T. SHAW, J., concur.

      . We take this information from the trial court’s judgment denying the Motion to Modify as we do not see a copy of the Notice and Finding of Financial Responsibility in the record on appeal.

      . Father did not appeal from the Paternity Judgment.

      . A Line 2a adjustment adjusts the amount of a party’s monthly gross income by the amount of any "other court or administratively ordered child support being paid.”

      . Mother did not file a Respondent’s brief with this Court.

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

      . Under its discussion of Mother's cross-motion for contempt, the trial court noted that due to "the mandatory federal and state with-holdings and the two existing child support orders, Father receives little, if any, actual take-home income.” However, this comment addressed Father’s present ability to pay certain portions of the Paternity Judgment.


author: GARY M. GAERTNER, Presiding Judge.

text:
    Jacob HALE, Appellant, v. TREASURER OF MISSOURI AS CUSTODIAN OF the SECOND INJURY FUND, Respondent.
    No. ED 85464.
    Missouri Court of Appeals, Eastern District, Division One.
    June 7, 2005.

      Ray B. Marglous, Ray B. Marglous, P.C., Clayton, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Michael T. Finneran, Assistant Attorney General, St. Louis, MO, for Respondent.
   GARY M. GAERTNER, Presiding Judge.

Appellant, Jacob Hale (“Claimant”), appeals the decision of the Labor and Industrial Relations Commission (“the Commission”) affirming the award rendered by Administrative Law Judge Edwin J. Koh-ner (“the ALJ”). Claimant was not awarded permanent total disability benefits, but he was awarded permanent partial disability benefits. Respondent, the Second Injury Fund, was ordered to pay $16,646.73 for 59.79 weeks of permanent partial disability. We affirm.

Claimant was born on December 16, 1954. In 1978, Claimant began working for Anheuser-Busch (“Employer”) as a filler operator, a position that he maintained throughout his time working for Employer. Claimant has a long history of physical and psychological ailments. On October 26, 1990, Claimant sustained a work related injury to his left shoulder, back, and neck. This injury led to a workers’ compensation claim filed by Claimant against Employer that was settled based upon an approximate disability of 25% of the arm at the shoulder and 7.5% of the body referable to the low back and neck. As part of the treatment for this injury, Claimant underwent arthroscopic surgery on his left shoulder.

Among other things, Claimant has also suffered from depression. He went on disability leave from Employer from July 18, 1996 until August 26, 1996 for the stated reason of depression. He again went on disability leave from June 24,1997 until September 24, 1997 for the stated reasons of depression and anxiety. Claimant also testified to a history of heart and breathing problems dating back to about 1990.

In 1997, Claimant’s job as a filler operator required him to make repetitive twisting motions while removing tubes from a conveyer belt. The occupational disease at issue in this case was allegedly suffered on November 3, 1997. On this day, Claimant says he experienced heavy sweats, suffered from shortness of breath, and felt pain in his right shoulder. Shortly after Claimant notified his supervisor about the problems he was having that day, he was sent to a hospital. Saint Louis University Hospital records indicate that Claimant’s chief complaints related to pain in his left side and back, as well as breathing difficulties. Claimant went on disability leave from Employer from November 3, 1997 until February 23, 1998 for the stated reasons of mitral valve prolapse, hypertension, chronic bronchitis, and depressive illness. Claimant has not worked for Employer or anyone else since the incident on November 3, 1997. Claimant testified that he treated his right shoulder pain by himself for two years using home remedies. Then, in February of 2000, Claimant underwent arthroscopic surgery on his right shoulder.

On or about May 30, 2000, Claimant filed a workers’ compensation claim alleging injury to his right arm and shoulder. Claimant alleged that he sustained an occupational disease, on or about November 3, 1997, resulting in surgery due to repetitive use of his right arm and shoulder while working for Employer. Claimant subsequently settled his claim with Employer based upon an approximate disability of 17.5% permanent partial disability of the right shoulder. However, Claimant proceeded with his claim against the Second Injury Fund.

On March 30, 2004, the ALJ denied Claimant’s claim for permanent total disability benefits, but did award him permanent partial disability benefits. On November 2, 2004, the Commission unanimously affirmed the ALJ’s award and decision, and incorporated it by reference into the final award. The Commission found, among other things, that: (1) Claimant suffered a 17.5% permanent partial disability to his right shoulder as a result of his occupational injury; (2) Claimant had a pre-existing 75% permanent partial disability from his depression and a pre-existing 25% permanent partial disability from his left shoulder injury and surgery; and (3) Claimant’s right shoulder injury was not a factor in causing the Claimant’s permanent total disability. Claimant was awarded 59.79 weeks of permanent partial disability benefits to be paid in the amount of $16,646.73 by the Second Injury Fund. This appeal followed.

We will uphold the award of the Commission if there is sufficient competent and substantial evidence to support the award. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo.banc 2003). An award is not supported by competent and substantial evidence if it is contrary to the overwhelming weight of the evidence. Id.

Claimant’s brief contains one point on appeal with three sub-points. We will address the first sub-point initially, and then address the second and third sub-points together.

In his first point on appeal, Claimant asserts the Commission erred in considering the exhibits containing reports written by Dr. Jay Liss (“Dr.Liss”), Claimant’s psychiatrist, as evidence that Claimant’s right shoulder injury was not a factor in causing Claimant’s permanent and total disability. Pursuant to section 287.550 RSMo 2000, “all proceedings before the commission ... shall be simple, informal and summary, and without regard to the technical rules of evidence ...” Section 287.550. Under the Workers’ Compensation Act, substantial rights are to be enforced at the sacrifice of procedural rights. Elking v. Deaconess Hosp., 996 S.W.2d 718, 719 (Mo.App. E.D.1999). Where no objection is made, hearsay testimony may be considered and, further, all probative evidence received without objection in a contested case must considered in administrative hearings. Clark v. FAG Bearings Corp., 134 S.W.3d 730, 736 (Mo.App. S.D.2004).

The reports of Dr. Liss were exhibits attached to the deposition of Mr. James England (“England”). Claimant argues that the Commission could not consider the exhibits as expert testimony because the exhibits did not meet the requirements of section 490.065. Section 490.065 specifies under what conditions expert testimony is admissible.

In Clark, the report of Dr. Paul Toma (“Dr.Toma”) was admitted into evidence as part of a deposition exhibit referred to in the deposition of another doctor. See id. at 736-37. The employer contended that Dr. Toma’s report was not properly before the ALJ, because the report was unauthenticated hearsay. Id. at 736. However, the court of appeals in Clark found that Dr. Toma’s report was properly before the ALJ for consideration, because the exhibit containing the report was admitted at the hearing with no objection from the Employer. Id. at 737.

Similarly, in this case, Claimant never made an objection asserting that the exhibits were inadmissible because they either were unauthenticated hearsay or did not comply with section 490.065. The only objection made by Claimant as to any of the reports of Dr. Liss’ was related to a contention that it was not clear exactly what questions Dr. Liss was answering in a particular report. Therefore, the Commission did not err in considering as evidence the Dr. Liss exhibits attached to the England deposition. Sub-point denied.

In his second and third sub-points on appeal, Claimant contends the Commission erred in finding that Claimant’s occupational injury to his right shoulder was not a factor in causing Claimant’s permanent and total disability.

An employee with an occupational disease suffers a compensable injury when the occupational disease causes the employee to become disabled and unable to work. Prater v. Thorngate, Ltd., 761 S.W.2d 226, 228 (Mo.App. E.D.1988). In cases involving an occupational disease caused by repetitive motion, an employee is disabled and unable to work when the need for surgery is manifested. Lorenz v. Sweetheart Cup Co., Inc., 60 S.W.3d 677, 681 (Mo.App. S.D.2001).

The Commission found that the right shoulder injury “was not [a] factor causing the claimant’s permanent total disability, which his treating physicians attributed to the claimant’s anxiety, depression, and heart disease.” The Commission further found that the combination of Claimant’s anxiety, depression, and heart condition rendered Claimant permanently and totally disabled in 1998, before Claimant had surgery on his right shoulder.

The disability leave applications signed by Claimant in 1997 and 1998 indicate that his inability to work was due to reasons other than his right shoulder. England, a rehabilitation counselor, conceded that it would not be unreasonable to conclude that Claimant could have been rendered permanently and totally disabled due either to the effects of his psychiatric problems alone, or due to the combination of his psychiatric and cardiovascular problems.

Furthermore, Claimant did not obtain surgery on his right shoulder until over two years after he permanently stopped working for Employer. There is evidence that Claimant did not even inquire about the possibility of shoulder surgery until January of 2000, when he complained of a recent increase in pain, weakness, and discomfort in his right shoulder. According to Dr. Liss, Claimant was permanently and totally disabled well before the right shoulder surgery. Dr. Jerome Levy, a physician, admitted that he had no reason to doubt the accuracy of the opinions of Dr. Liss.

Therefore, based on the record as a whole, there was substantial evidence to support the Commission’s finding that the occupational disease Claimant sustained to his right shoulder was not a factor in causing Claimant’s permanent and total disability. Sub-points denied.

Based upon the foregoing, we affirm the final award of the Commission.

SHERRI B. SULLIVAN and BOOKER T. SHAW, JJ, concur.

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


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    In re The MARRIAGE OF Wendell L. HOSKINS, II, and Lori L. Hoskins. Wendell L. Hoskins, II, Petitioner-Appellant, v. Lori L. Hoskins, Respondent-Respondent.
    No. 26434.
    Missouri Court of Appeals, Southern District, Division One.
    June 7, 2005.

      John L. Oliver, Jr., R. Scott Killen, Cape Girardeau, for Appellant.
    Daniel T. Moore, Poplar Bluff, for Respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Wendell L. Hoskins (Father) and Lori L. Hoskins (Mother) were divorced in 2000. Father, who is an attorney, drafted the original Parenting Plan, which granted the parties joint legal custody with Mother to have the “primary care, custody and control” of their child. The Form 14 attached to the dissolution decree indicated child support should be $1,257.00 per month; however, the parties agreed to child support in the amount of $1,750.00 per month, “provided that [Father] and [Mother] each contribute each month a minimum of $250.00 to an Education IRA, or other financial vehicle agreed to by the parties, for the purpose of funding the college education of the minor child.” Contrary to section 452.377.11, the decree did not have a provision regarding the relocation of the minor child.

Father filed his first Amended Motion to Modify Judgment of Dissolution of Marriage in January 2003. In the motion, he claimed that the parties were awarded joint legal and physical custody of the child and that there was a change of circumstances so substantial and continuing as to make the terms of the original judgment unreasonable. He claimed the minor child was approaching school age, that Mother had failed to provide a stable and suitable home environment for the minor child, that Father could provide the male minor child with a stable and positive home environment near members of his family, and the best interests of the minor child would be served with the child primarily residing with his father.

Mother filed an Answer and Cross Petition requesting an increase in child support, a change to the educational fund, a change in the visitation schedule, and a request for attorney’s fees and litigation costs. She specifically prayed for a modification of the Parenting Plan and Form 14 in accordance with her proposed Parenting Plan, which was attached to her pleadings. In the Parenting Plan, Mother requested the parties alternate the tax deduction for the minor child and that Father maintain a policy of health insurance and pay seventy-five percent of the uncovered or deductible amounts.

The trial court found that there was not a substantial change in the circumstances of the minor child or of his custodial parent sufficient to warrant modification of custody nor was there a substantial change of circumstances so as to make the terms of the original child support award unreasonable; however, the court found it in the best interests of the minor child to change the visitation schedule. The court required Father to pay for health insurance coverage and pay eighty percent of the uncovered expenses and awarded Mother the income tax exemption in alternating years.

Father brings five points on appeal: (1) a claim regarding the failure of the court to modify custody of the minor child; (2) a challenge to the court’s Parenting Plan; (3) a complaint of the judgment ordering Father to pay for health insurance coverage and pay eighty percent of the uncovered medical expenses; (4) a failure to reduce Father’s child support payment; and (5) a protest of the award of attorney’s fees to Mother.

Father’s first point reads:

The trial court erred by failing to modify the parties’ original decree of dissolution to award Appellant primary physical custody because the trial court’s judgment erroneously declared and applied the law and was against the weight of the evidence in that the trial court applied a standard outside of that mandated in section 452.410 RSMo 2004; the trial court ignored evidence demonstrating a change in circumstances; and the trial court’s judgment did not consider the factors set forth in section 452.375.2 RSMo 2004.

Father’s point relied on must comply with Rule 84.04(d)(1), which provides:

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.

This rule outlines three requirements for a proper point relied on: (1) a statement of the action or ruling complained of; (2) a statement of why the ruling was erroneous; and (3) citations to evidence that supports the position the appellant asserts the trial court should have taken. Coleman v. Gilyard, 969 S.W.2d 271, 273 (Mo.App. W.D.1998). Father’s point is deficient. Abstract statements of law do not comply with this rule. Patterson v. Waterman, 96 S.W.3d 177, 179 (Mo.App. S.D.2003). Father fails to state the facts of this case that support his position and cites to no evidence demonstrating a change of circumstances to support his claim. Compliance with this rule allows us to verify the evidence supporting his argument; without such compliance, we would be forced to search the record to discover the facts that substantiate a point on appeal and would effectively act as an advocate of the non-complying party, which is not the function of the appellate court. Boyd v. Boyd, 134 S.W.3d 820, 824 (Mo.App. W.D.2004).

Father compounds the deficiency of his point relied on by a legal argument that is dizzying. He commences his argument with the generally recognized standards of review set forth in Murphy v. Carron and In re D.M.S., but then proceeds to challenge the giving of deference to the trial court in custody cases by stating that the pronouncement is not contained in Rule 84.13(d), nor is it logical. He concludes by arguing:

the idea of deference by three to the opinion of one, appears highly counterin-tuitive — would one not expect the combined wisdom of the three to exceed the choice of the one — where on any given day or days the “one” is subject to the vicissitudes of life — maybe having a “bad day” or “be distracted” or “be displeased” that the case did not settle[.]

We decline to adopt Father’s standard of review. We shall give greater deference to the trial court’s determination of child custody matters.

Father further challenges cases which indicate that the change in circumstances, pursuant to section 452.410.1, must be substantial and continuing changes. While acknowledging that previous case law has indicated that the change in circumstances must be substantial and continuing, Father argues that courts cannot legislate and add requirements to the plain language meaning and intent of statutes. In other words, Father asserts the standard is simply any change in circumstances. Father argues we should not follow the supreme court’s interpretation of section 452.410.1, but rather follow the wording of the statute. In doing so, Father maintains we would actually be following supreme court precedent regarding the interpretation of statutes and acting in accord with the dictates of the Missouri Constitution. We shall follow the latest decisions of the Missouri Supreme Court, as we are constitutionally bound to do. Mo. Const, art. V, § 2; State ex rel. FAG Bearings Corp. v. Perigo, 8 S.W.3d 118, 123 (Mo.App. S.D.1999). “Accordingly, we are required to follow the line of cases applying the ‘substantial’ component to the requirement of a change of circumstances in a modification of custody case.” In re Marriage of Eikermann, 48 S.W.3d 605, 609 (Mo.App. S.D.2001).

Although Father’s point might warrant a dismissal of the point for a deficient point, because this is a child custody case, we have reviewed Father’s allegations ex gratia. We find no error in the refusal of the trial court to modify custody. It appears from his argument that Father relies upon five changes to support his claim of a change of circumstance. First, Father argues that because the child is on the verge of kindergarten, he now needs “a firm and substantial male figure commonly known and referred to as a ‘father figure.’ ” Next, he argues that Mother has moved too often to provide a stable home for the child. Father further contends that the minor child has dental problems, which are unexplainable because there is “no family history of bad teeth or dental hygiene problems.” Father adds to his list of changes of circumstances that Mother is financially unstable because she did not properly open a college investment fund and she drives a more luxurious car than at the time of the divorce. Finally, Father claims he was denied visitation because she made the minor child afraid of horses, livestock, and guns, even though “[the child’s] heritage on both sides of the family is rural.” He further complains about Mother’s interpretation of the decree regarding holiday visitations.

None of Father’s complaints, individually or collectively, raise any inference that the court erred in refusing to modify custody. The court specifically found that any moves made by Mother were approved by Father and even encouraged on several occasions. The court further found that the moves were made in good faith, for reasons which Father did not oppose, and had no impact on the ability of Father to exercise his periods of temporary custody and visitation. That finding is amply supported in the record. The court specifically found Mother had provided not only frequent, continuing and meaningful contact between Father and the minor child, but she had also allowed extra visitation on numerous occasions at the request of Father. The court further found that Mother did provide a stable environment for the minor child in Cleveland, Mississippi.

We can only assume that the court did not directly address Father’s contention regarding the need for a “father figure” because it is nonsensical on its face. The statement assumes that the child did not need a “father figure” at the time of the dissolution when Father agreed that Mother should have custody or that Father cannot be a “father figure” without having more custodial time. We reject those contentions as well. Furthermore, the claim that the child was about to commence school has never been a ground to modify custody in and of itself. Father did not provide evidence of any medical or dental neglect.

The trial court noted that changes were necessary to remedy any “minor” disagreements in the interpretation of the original Parenting Plan, which, as we noted, was drafted by Father. The court found the correct standard for a change in visitation under section 452.400.2 is that the changes must be in the best interests of the child. Due to the change in the child’s school schedule, which both parties acknowledged was necessary, the court set forth a more specific visitation and temporary custody plan. Substantial evidence supports the trial court’s finding that there is no change of circumstances warranting a change of custody. Point I is denied.

Point II suffers from the same infirmities. Point II reads:

The trial court erred when it ordered the visitation provisions of the “Court’s Parenting Plan” because the “Court’s Parenting Plan” as adopted misapplies the law in that the “Court’s Parenting Plan” restricts, limits and significantly decreases the visitation of Appellant without a specific finding that “visitation would endanger the child’s physical health or impair his emotional development in violation of section 452.400.2 RSMo.2004.”

Again, in the context of this case Father fails to indicate in what way the court’s Parenting Plan restricted, limited or significantly decreased Father’s visitation. His argument section provides no guidance as it does not indicate just how Father’s visitation was in any way restricted. The only definite change in the visitation plan is the termination of Friday during alternating weeks, but Father admits that the Friday visitation had to be eliminated because the child is now of school age. Father claims that is a decrease of twenty-six days; however, Father apparently included all the summer months in his calculation and all holidays. Although noting the apparent increase in time during the summer months, Father claims the change from three nonconsecutive two-week periods in the original plans to the entire summer break did not compensate Father for the missed Fridays. To support his claim that the summer visitation is actually a decrease in visitation, Father appears to rely upon Exhibit 18b; however, no such exhibit was admitted. Because we cannot even discern whether the assumption of Father’s point, which is that his visitation was in some way restricted, is accurate as a matter of fact, we deny his point.

Father’s third point claims the trial court erred in adopting its own Parenting Plan, which required Father to pay for health insurance coverage for the minor child, to pay eighty percent of the uncovered medical expenses and awarded Mother the income tax exemption in alternating years. Father argues the trial court made a specific finding that the evidence did not demonstrate a substantial and continuing change in circumstances sufficient to make the original child support award unreasonable, Mother did not request the changes in her pleadings, and no evidence was adduced to support the changes. We find no merit to any of Father’s contentions.

Mother filed a counterclaim in response to Father’s motion to modify; the counterclaim included a Parenting Plan, which contained a change in the income tax deduction and a change in which parent provided health insurance. Clearly, the pleadings indicated relief was sought in those areas. Even if the pleadings did not, evidence regarding insurance was introduced at the trial. The parties tried the issues by consent. Rule 55.33(b) provides that “ ‘[w]hen issues not raised by the parties are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.’” Conduff v. Stone, 968 S.W.2d 200, 205 (Mo.App. S.D.1998) (quoting Rice v. James, 844 S.W.2d 64, 67 (Mo.App. E.D.1992)). The failure to make a timely and specific objection to evidence on the ground that it is beyond the scope of the parties’ pleadings constituted consent for determination of issues raised thereby. Warren Davis Properties v, L.L.C. v. United Fire and Cas. Co., 4 S.W.3d 167, 171 (Mo.App. S.D.1999). Therefore, the issue was before the court by Mother’s pleadings and by Father raising the issue at trial.

Furthermore, we find that Wilson v. Whitney, 81 S.W.3d 172 (Mo.App. S.D.2002), controls the resolution of this question. In Wilson, we found that:

Courts are bound by the statutory terms imposed by the legislature in addressing issues related to dissolution of marriages. This includes medical expenses related to dependent children for whom child support is ordered.
Section 454.603 provides, as applicable here:
1. At any state of a proceeding in which the circuit court ... has jurisdiction to establish or modify an order for child support, ... the court ... shall determine whether to require a parent to provide medical care for the child through a health benefit plan.
5. The court shall require the obligor to be liable for all or a portion of the medical or dental expenses of the minor child that are not covered by the required health benefit plan coverage if:
(1) The court finds that the health benefit plan coverage required to be obtained by the obligor or available to the obligee does not pay all the reasonable and necessary medical or dental expenses of the minor child; and
(2) The court finds that the obligor has the financial resources to contribute to the payment of these medical or dental expenses; and
(3) The court finds the obligee has substantially complied with the terms of the health benefit coverage.
Section 454.603.1 directs a trial court to determine whether to require a parent to provide medical care through a health benefit plan for a child who is the subject of a proceeding seeking modification of child support. The directive is not conditioned on a party specifically seeking modification of health care directives included in a prior judgment. Upon imposing an obligation on a parent to provide medical care for a child by means of a health benefit plan, § 454.603.5 requires the court to “require the obligor to be hable for all or a portion of the medical or dental expenses of the minor child that are not covered by the required health benefit plan” upon finding certain facts.

Id. at 183-184 (citations omitted).

We find that even though the court found no change of circumstances to warrant a change in the child support, the court had an independent duty to ascertain whether health insurance was available to Father and, subsequently, to enter the amount of the deductibles and co-pays that each of the parties was to pay. At trial, Father complained about Mother not having insurance. Father’s original Form 14 indicated that Mother was to maintain health insurance. Given the substantial disparity in the parties’ income, the court did not err in ordering Father to pay eighty percent of the uncovered medical costs. Substantial evidence supports that determination.

As to the income tax exemption, we initially note that a trial court has broad discretion in awarding the income tax deduction. Blechle v. Poirrier, 110 S.W.3d 853, 856 (Mo.App. E.D.2003). Nevertheless, the law is very clear as to how the court has the authority to allow the dependency exemption to the non-custodial parent.

Under the current 26 U.S.C. § 152(e), the trial court does not have the authority to merely order that the non-custodial parent get the dependency exemption. Vohsen v. Vohsen, 801 S.W.2d 789, 791 (Mo.App. E.D.1991); 26 U.S.C. § 152(e)(1). To effectuate the allocation of the tax exemption to the non-custodial parent, the trial court must order the custodial parent to annually sign the prescribed declaration described in 26 U.S.C. § 152(e)(2)(A).

Simon-Harris v. Harris, 138 S.W.3d 170, 183 (Mo.App. W.D.2004).

Under federal law, the parent who has custody for the greater portion of the calendar year is entitled to the exemption. Id. at 182. The original judgment was not a valid authorization of Father to take the dependency deduction; neither does the judgment that is the subject of this appeal order Mother to annually sign the prescribed declaration described in 26 U.S.C. § 152(e)(2)(A). Therefore, both the original order allowing Father to take the deduction and the supposed change in the dissolution decree granting Father alternating years of the dependency deduction were ineffective to grant Father the deduction. Father does not raise that issue on appeal and we decline to decide the effectiveness of such an order in the modification. We find no merit to Father’s complaint that Mother was awarded the deduction in alternating years. Point III is denied.

Father’s Point IV states:

The trial court erred when, having denied Appellant’s motion to modify primary custody, it refused to reduce Appellant’s child support payment because the trial court misapplied the law in that (1) the trial court improperly rejected Appellant’s Form 14 calculated in accordance with Rule 88.01; (2) the Form 14 used by the trial court did not follow the comments and directions for completing Form 14 involving depreciation; and, (3) the burden of proof applied by the court was improper.

Once again, Father fails to grace us with how the facts in the context of this case support his claim that child support should have been reduced. In his argument, it appears Father is complaining that the court did not follow Father’s Form 14 in which he used depreciation expenses to reduce his income. Although Father does not state it in his point relied on, he must be arguing that there was a substantial and continuing change of circumstances which made the original child support unreasonable. Father’s argument is that the original Form 14 indicated that Father’s income was at $9,825.00, whereas his current income was only $3,343.00. He arrives at that calculation by subtracting from his income the depreciation expenses he used in his federal tax returns; Father claims trial court error in adding back the depreciation expenses to his income. Without belaboring the point, substantial evidence supports the court’s finding that there was no change of circumstances regarding child support in that Father’s net income from his law practice alone approximated $125,000.00. The court was entirely justified in rejecting his testimony that he lost money in his farming, rental, and trucking businesses; the court was further justified in adding back the depreciation in all of the business “losses” in conformance with the directions and comments for use to the Form 14. The court accepted the Form 14 submitted by Mother as being in compliance with Supreme Court Rule 88.

Furthermore, as noted earlier, the trial court specifically found that the parties deviated from the Form 14 that was submitted to the court with the original dissolution. The court, noting Potter v. Potter, 90 S.W.3d 517, 522 (Mo.App. S.D.2002), found it would be error to use a new Form 14 to establish a prima facie showing of a substantial and continuing change of circumstances to modify child support when the Form 14 was not used as the basis for the child support amount in the original judgment. Father testified that in the original dissolution he arrived at the amount of child support by calculating how much support Mother needed for the child. Father did not factually prove a decrease in his income or a decline in his overall financial standing nor did he establish a prima facie showing pursuant to section 452.370. Point IV is denied.

Finally, Father complains that the trial court erred regarding the award of attorney’s fees. The trial court ordered Father to pay $7,500.00 toward Wife’s attorney’s fees. Although admitting that the award of attorney’s fees is committed to the sound discretion of the trial court, nevertheless, Father claims it was against the weight of the evidence and a misapplication of the law because the court “failed to take into account the conduct of respondent and the relative merits or lack of merits of her claims and defenses as required by section 452.355 RSMo.” When considering the financial resources of the parties, the merits of the case, and the actions of the parties, we find no abuse of discretion. See Cohen v. Cohen, 73 S.W.3d 39, 55-56 (Mo.App. W.D.2002) (finding that a court awarding attorney’s fees must consider all relevant factors including the financial resources of the parties, merits of the case, and actions of the parties during the pendency of the action).

We note that Father initiated the Motion to modify custody and, despite his protestations to the contrary, he failed in that motion. The court decided every factual allegation against him. Although Father cites Mother’s choice of a luxury automobile, an Isuzu Axiom, as evidence of her wealth, he failed to note his own testimony that he has three cars, as well as access to numerous trucks and other vehicles. Furthermore, Father did not offer a Statement of Property and Debt, so the court was free to surmise that Father had ample financial resources to pay the attorney’s fees when it was balancing the relative financial resources of the parties. There was testimony that in addition to his law practice, Father farmed approximately 1500 acres of farm, owned a trucking business and a rental business. We do not note any conduct on Mother’s part which would negate an award of attorney’s fees. Point V is denied.

The judgment is affirmed.

BATES, C.J., concurs.

GARRISON, P. J., concurs in result only.

      . It is not clear from that order what was the obligation of each party if one or the other failed to contribute to the education IRA. These additional terms are not at issue in this appeal.

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

      . All rule references are to Supreme Court Rules (2004), unless otherwise indicated.

      . An appellate court will sustain the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

      ."Greater deference is given to a trial court’s determination in matters involving child custody than in any other type of case.” In re D.M.S., 96 S.W.3d 167, 171 (Mo.App. S.D.2003).

      . We direct Father’s attention to section 452.375.8 where the legislature has mandated that no preference may be given to either parent in awarding custody because of the sex of the parents or child.

      . There is an Exhibit 18d noted in the transcripts, which is a "printout of email,” but that exhibit has not been given to the court.

      . We further note that Father provided absolutely no legal analysis as to what constitutes a restriction in a visitation plan. Because we cannot even find a factual basis for any restriction, we do not address the legal analysis. We do note that at the beginning of trial, Father's counsel announced that the parties had reached an agreement as to a "custody neutral" Parenting Plan, which would apply no matter what the outcome of the custody issue. The court’s plan appears to be the same plan that Father testified was in the best interest of the minor child.

      . We note that under the assumptions made on the Form 14, the custodial parent receives the dependency exemption every year.

      . Father further raised issues in his argument that the court's actions in refusing to modify the Form 14 were unconstitutional, violated the Separation of Powers Doctrine and violated the Missouri Constitution. He failed to present any of these complaints to the trial court; thus, they are not preserved. See Wagner v. Piehler, 879 S.W.2d 789, 793 (Mo.App. W.D.1994) (finding that a claim of error not properly presented in the trial court will not be considered on appeal).

      . Again, Father does not grace us with which actions of Mother constituted conduct that should be considered in the award of attorney’s fees.


author: PHILLIP R. GARRISON, Presiding Judge.

text:
    Amy E. HENBEST, Petitioner-Respondent, v. Clifford Neal HENBEST, Respondent-Appellant.
    No. 26229.
    Missouri Court of Appeals, Southern District, Division One.
    June 7, 2005.

      James R. Sharp, Sharp <& Bredesen, Springfield, for appellant.
    Susan S. Jensen, Pratt, Fossard, Jensen & Masters, L.L.C., Springfield, for respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Clifford Neal Henbest (“Husband”) appeals from a judgment entered in a dissolution of marriage case filed by Amy E. Henbest (“Wife”). He claims the trial court erred in awarding maintenance to Wife, in setting the maintenance amount, and in ordering the parties to pay a portion of the children’s postsecondary educational expenses “based on each party’s proportionate income as determined by the then applicable child support chart.” We affirm the trial court’s judgment as to the award and amount of maintenance, but reverse and remand with reference to the portion of the judgment requiring the parties to pay the children’s postsecondary education.

We review a judgment of dissolution the same as we would any court-tried case. McGowan v. McGowan, 43 S.W.3d 857, 861 (Mo.App. E.D.2001). Therefore, we will affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. In re Marriage of Lindeman, 140 S.W.3d 266, 270 (Mo.App. S.D.2004); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

MAINTENANCE

The trial court found that Wife lacked sufficient property, including property apportioned to her to provide for her needs, and was unable to fully support herself through appropriate employment, and that after considering all relevant factors including those set out in Section 452.335, Husband was ordered to pay her maintenance of $550 per month. Husband attacks both the award of maintenance and the amount he was ordered to pay.

Pursuant to Section 452.335.1, the award of maintenance is a two-step process. First, the trial court must find that the party seeking maintenance “(1) [Hacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (2)[i]s unable to support himself through appropriate employment ...” Second, the trial court is required to consider ten factors enumerated in the statute which includes balancing the reasonable needs of the spouse seeking maintenance with the other spouse’s ability to pay. Section 452.335.2(8). “Once both steps have been satisfied, the statute provides that maintenance should be awarded ‘in such amounts and for such periods of time as the court deems just.’ ” Elrod, v. Elrod, 144 S.W.3d 373, 381 (Mo.App. S.D.2004); Section 452.335.2.

An award of maintenance rests within the discretion of the trial court. In re Marriage of Gibson, 23 S.W.3d 686, 691 (Mo.App. S.D.2000). Therefore, we review only for an abuse of that discretion and will not interfere with the award unless the amount of maintenance is patently unwarranted or is wholly beyond the means of the spouse ordered to pay. In re Marriage of Buchholz, 139 S.W.3d 607, 608 (Mo.App. E.D.2004). “Judicial discretion is abused when the court’s judgment is clearly against the logic. of the circumstances and is so arbitrary and unreasonable as to shock one’s sense of justice and indicates a lack of careful consideration.” Bonenberger v. Bonenberger, 108 S.W.3d 729, 733 (Mo.App. E.D.2003). An award of maintenance cannot stand without eviden-tiary support. Hammer v. Hammer, 139 S.W.3d 239, 248 (Mo.App. W.D.2004). The burden of demonstrating error is on the party challenging the award. Lindeman, 140 S.W.3d at 272. Evidence is viewed in the light most favorable to the decree, disregarding evidence to the contrary and deferring to the trial court even if the evidence could support a different conclusion. Id.

In Husband’s first point on appeal, he contends that it was error to award Wife maintenance in any amount because there was no substantial evidence upon which the trial court could have found that Wife was unable to meet her own reasonable needs. In his second point, he contends that the trial court erroneously set the amount of maintenance owing to Wife at $550 per month in that he is not capable of paying that amount, and in any event her true monthly deficit was at most $200. Because consideration of these two points overlap, we consider them together.

Wife is currently employed at the U.S. Attorney’s Office as an office automation assistant, where she assists attorneys with typing, copying, shredding and filing documents. Wife earns a little over $25,600 a year, which is the most income she has ever earned. Prior to 1999, Wife did not work full-time outside the home, but instead helped raise Husband’s child from a prior marriage, and twins born of this marriage in November 1988.

During trial, Wife submitted an income and expense statement in which she claimed a net monthly income of $2,282.22, including $820 she had been receiving in child support from Husband since their separation. Wife testified that her expenses totaled $3,126.90 per month, leaving a deficit of $844.68 each month. Wife’s list of expenses, however, included duplicated claims for health insurance ($50.92 for health and dental insurance, $64 for health, accident and dental insurance, and $25 for Cobra dental). Wife admitted that the claim for $64 was a mistake.

Husband also claims that Wife’s income and expense statement was inaccurate with regard to her monthly mortgage responsibility. He first asserts that Wife admitted at trial that she could save $253.90 per month by refinancing the mortgage on the marital home. Husband and Wife previously agreed that she would receive that property, valued at $103,000, and would be responsible for the $52,752.21 mortgage on the property. The monthly mortgage payment on that property is $730.90.

Wife’s testimony concerning refinancing the marital home included:

Q: Okay. Right now I believe you say you have a house payment of around $730; is that correct?
A: Yes.
Q: Now, later on there will be testimony that in order to refinance your house of $53,000, at six percent, which is available right now, that would reduce your house payment down to $342 a month instead of $731 a month. Are you aware of those general figures that we’ve been talking about?
A: Yeah.
Q: And have you checked into that about getting a refinancing arrangement?
A: I’ve talked to a realtor, yes.
Q: Okay. And taxes and insurance on your home are $135 a month. Are you aware of that? Again, there will be testimony of that later on.
A: Yes.
Q: Okay. So if you add 342 to the 135, you come up with about a 477 as a payment that you’d be making per month for your house instead of the $731 payment if you did refinance it.
A: Right.

There was no evidence that Wife would qualify to refinance her mortgage or that she was guaranteed the rate quoted to her at trial. Further, there was no evidence concerning any of the initial costs associated with refinancing a home mortgage. We find that as to Wife’s ability to refinance her mortgage, there was no inconsistency as to her income and expense statement and her testimony.

Next, Husband asserts Wife overstated the amount needed to maintain and repair the home. Wife listed maintenance and repairs on the residence at $50 per month. She testified that several items need to be repaired in the forty-year old home; the driveway and front walk need to be resurfaced, there are holes in the sheet-rock where wiring work has been done and never repaired, the downstairs carpet needed to be replaced, a couple of broken windows and a broken bedroom door needed to be replaced, as well as some plumbing problems, there is water damage in the basement, the garage door is not working properly, and part of the siding on the house is melted from a barbecue grill. She admitted that she spent a total of $125 on home maintenance in the prior year rather than the $50 per month stated in her income and expense statement. However, Wife explained that she had not had the money to pay for the needed repairs and maintenance. Husband also admitted that the house was in need of repairs.

Husband also claims that Wife’s claimed expenses for pet care are overstated in that she has only spent $70 in the past year rather than $60 per month as stated in her income and expense statement. At trial, Wife was asked if she would be surprised that there was only one charge to the veterinarian in the past twelve months:

Q: Are you — Would you be surprised if they only had one charge in the last 12 months of $70 for vaccinations?
A: Well, and I just was there yesterday for $112. So—
Q: Okay.
A: And they’re not taking into consideration the flea treatment, the heart-worm pills and any other — and the prescription dog food that we — we’re needing to buy. They haven’t — They don’t keep track of that and — and other than the — I mean, they don’t have that on their expenses for me. But I count those as part of my expense.

Lastly, Husband contends that the deductions claimed by Wife for life insurance, thrift savings plan and flex fund of approximately $150 per month are voluntary on her part. Husband does not provide any citation to authority as to why Wife’s life insurance, thrift savings plan and flex fund are unreasonable. He merely asserts they are voluntary. Husband’s argument must show how the facts of his case and the principles of law interact. Boyd v. Boyd, 134 S.W.3d 820, 824 (Mo. App. W.D.2004). “Arguments without authority present nothing for review.” In re Krewtzer, 50 S.W.3d 334, 338 (Mo.App. S.D.2001).

Wife’s expense statement also included $160-$210 for automobile expenses. Wife’s previous automobile was totaled in a wreck, and she was driving a car borrowed from her parents that she would eventually need to replace. Contrary to Husband’s contention, Wife testified that she was not aware of any intention by her father to give the car to her. In her expense statement, Wife did not include payments for an auto loan, but the evidence indicated that an auto loan for a compact car comparable to the one that was totaled would cost Wife between $275 to $290 per month.

After deducting the $64 duplication for health insurance, Wife’s expenses still exceed her available monthly resources. Accordingly, we cannot conclude that the trial court erred in determining that Wife was unable to fully support herself through appropriate employment.

Husband also claims that the trial court erred in setting the amount of the monthly maintenance, i.e. $550 because he is not capable of paying that amount. It is true that an award of maintenance should not exceed a paying spouse’s capacity to provide. Thomas v. Thomas, 76 S.W.3d 295, 302 (Mo.App. W.D.2002).

Husband works at Southwestern Bell Telephone doing installation and repair work. Husband’s base salary, before overtime, is $26 per hour or $54,080 annually. In the past three years, Husband has worked considerable amounts of overtime, increasing his income to $66,336 in 2001, $73,170 in 2002, and $80,470 in 2003. Husband’s supervisor testified that his large amount of overtime was a result of the company not replacing retired employees. This fact, coupled with the considerable storm damage in the past year, required Husband to work many hours. The supervisor further testified that this trend would not continue in the future because Southwestern Bell intended to cut back overtime so that it would amount to no more than a single-digit percentage of the employee’s base salary. Accordingly, Husband contends that his overtime income will not be as great in the future.

The trial court concluded that “the most equitable way to arrive at an income figure for [Husband] for the purpose of analyzing the maintenance issue and for the purpose of child support calculation is to average the last three calendar years, which results in average annual income of $73,305.00. This computes to $6,109.00 per month.” “[Clourts must look at past and present income in toto and consider a party’s complete earning history as evidence of ability to pay maintenance.” In re Marriage of Baker, 986 S.W.2d 950, 955 (Mo.App. S.D.1999). Averaging income to project a continuing level of income is permissible. In re Marriage of Kohring, 999 S.W.2d 228, 234 (Mo. banc 1999). We are unable to conclude that the trial court erred in determining that Husband has the financial ability to satisfy the maintenance awarded to Wife.

Husband also contends in his point relied on that the maintenance award should be reduced by the items Wife overstated in her income and expense statement with the result that her monthly deficit was actually no more than $200 per month. The items he complains about are the amounts of $253.90 he claims Wife could save on her monthly mortgage payment by refinancing the house, $64 in duplicated health insurance, $60 pet care expense, $50 house maintenance expense, and $150 voluntary deductions from her income. These have all been reviewed in our discussion above and, with the exception of the duplication of $64 for health insurance, found to be without merit.

In the argument section of Husband’s brief under this point, he also complains about the inclusion of expenses for the children in Wife’s income and expense statement and thus the consideration of those factors in determining the appropriate amount of maintenance to be paid to Wife. This contention, however, was not included in Husband’s point relied on. The issue presented on appeal is that which is stated in the point relied on, and if it is not contained therein it is considered abandoned. Waldorf Inv. Co. v. Farris, 918 S.W.2d 915, 918 (Mo.App. S.D.1996). Points one and two are therefore denied.

POSTSECONDARY EDUCATION EXPENSE

In his final point, Husband contends that the trial court erred in ordering the parties to “pay a portion of the child(ren)’s postsecondary educational expenses based on each party’s proportionate income as determined by the then applicable child support chart.” He argues that this portion of the judgment was too vague to be enforced as there is no indication what percentage of the children’s college expenses should be paid by each party; there is no indication as to what the financial ability of the parties will be when the children go to college; the provision cannot be enforced by a ministerial computation; and the matter is more suitable for a later motion to modify.

This portion of the judgment was contained in a parenting plan adopted by the trial court. It provided, in pertinent part:

1. Postsecondary Educational Expenses. With regard to the postsec-ondary education expense of the chñd(ren)-defined as postsecondary college, university, vocational, or technical school whether state or private-each party will pay a portion of the child(ren)’s postsecondary educational expenses based on each party’s proportionate income as determined by the then applicable child support chart.
a.) “Postsecondary educational expenses” include the then current cost of tuition, fees, books, and costs for room and board. It does not include room and board while residing with either parent.
b.) The “postsecondary educational expenses”: that the parents are responsible for paying are the actual cost for a child — i.e., if a child receives a scholarship or other aid that reduces postsecondary educational expenses, then the parties obligation to pay “postsecondary educational expenses” will also be reduced. For this purpose, loans to a child are not to be considered a scholarship or other aid.
c.) A child must carry a minimum of at least twelve credit hours each semester.
d.) The maximum cost that the parents will be responsible for in any given school year will be the then current cost for tuition, fees, books, and costs for room and board as an in-state student at the University of Missouri-Columbia, regardless of what institution the child attends.
e.) The parents will not be responsible for the cost of more than eight semesters at any postsecondary school for a child.
f.) A child is expected to apply for all available grants and scholarships to help defer postsecondary educational expenses.
g.) A child is expected to work during the summer vacation to help defray some of the expenses for the following year.

Husband relies heavily on Echele v. Echele, 782 S.W.2d 430 (Mo.App. E.D. 1989), in support of this point. Echele involved a modification of a dissolution decree in which the father was ordered to pay one-half of the cost of vocational/technical school or one-half of the cost of post-secondary education at a state supported college or university for each of his children. Id. at 433. It also provided that if any of the children chose to attend a private college or university, father would be responsible for one-third of the cost of tuition, books and dormitory fees of that college or university. Id. The father contended on appeal that the order was not based on substantial evidence and was an erroneous application of the law in that, among other reasons, it was dependent on future contingencies, was indefinite and uncertain, and was void and unenforceable because subsequent hearings would be required to determine the amount owing. Id. In agreeing that the order was too uncertain and vague to be enforceable, the appellate court undertook an extensive review of the law in this area. Id. at 434-37.

The Echele court noted that the general rule is that a judgment must be definite and certain as to amount without requiring external proof of another hearing in order to be enforceable. Id. at 434. It also noted, however, that those principles have been eroded in several respects. Id. After analyzing eases such as Toomey v. Toomey, 636 S.W.2d 313 (Mo. banc 1982), Payne v. Payne, 635 S.W.2d 18 (Mo. banc 1982), and Bryson v. Bryson, 624 S.W.2d 92 (Mo.App. E.D.1981), the Echele court concluded that:

(1) if a dissolution or modification decree is uncertain or indefinite in the sense that it lacks pristine specificity and (a) a settlement agreement is incorporated in the decree which can make the decree certain by motion and hearing to determine the exact amounts due, or (2) the decree itself can be made certain by a motion and hearing to determine the exact amounts due by ministerial computation or evidence, the decree, upon being reduced to certainty, is sufficiently certain and definite so as to be enforceable .... However, if the decree is so amorphous, indefinite, vague and uncertain that it requires a subsequent hearing to determine its meaning and which involves discretion, the decree is void and unenforceable.

Id. at 436 (emphasis added). Accordingly, the court held that the order that the father pay one-half of the cost of vocational/technical school, one-half of the cost of postsecondary education at a state supported college or university, or one-third of tuition, books and dormitory fees of a private college or university was too uncertain and vague to be enforceable in that it did not set forth any limiting criteria as to costs at a specific college or university, leaving it open-ended. Id. at 436-37. In doing so, it suggested wording that it said would remedy the problems identified in that case. Id. at 437. The suggested order specified, among other things, that the father would be required to pay one-half of the costs of postsecondary college, university or vocational/teehnieal school, state or private; it defined the meaning of “cost” and “one-half’; and it specified that the maximum cost he would be responsible for would be one-half the cost at the University of Missouri at Columbia regardless of the institution attended. Id. at 437.

The distinction between the suggested order in Echele and that entered in the instant case is that here the percentage of costs required to be paid by Husband is not specified. Rather, that is left to a future determination based upon application of “the then applicable child support chart.” Many questions are left unresolved by that phrase such as the source or identity of the chart to be utilized; what time frame is referred to. by the phrase “then applicable” child support chart; and when that calculation is to be made, i.e. when the children start their postsecond-ary educations, at the beginning of each school year, or otherwise.

Assuming that the “then applicable child support chart” refers to the Form 14 chart in use at that time, the calculation of Husband’s obligation will involve more than a mere ministerial calculation or one that automatically applies evidence from a third party, i.e. what are the costs of tuition, fees, books, and room and board at the institution being attended or, at the maximum, such costs for in-state students at the University of Missouri-Columbia. Remembering that Echele held that, other than a situation where a settlement agreement is incorporated into a decree, a decree is sufficiently certain and definite so as to be enforceable if it can be made certain by motion and hearing to determine the exact amounts due by ministerial computation or evidence, but not if that determination involves the exercise of discretion by the trial court, it is necessary that we determine if Form 14 calculations of income involve the application of trial court discretion. Id. at 436. In doing so, we must refer to the present version of Form 14 for we do not know what provisions may be contained in future ones; another indication of the uncertainty inherent in the contested provision.

The calculation of income for the purpose of determining the presumed correct amount of child support using Form 14 can involve the exercise of discretion. Thus, in Ricklefs v. Ricklefs, 39 S.W.3d 865, 875 n. 10 (Mo.App. W.D.2001), the appellate court noted that the trial court, in its discretion, may choose to ignore income history and look at income from a single year if it finds that amount to be an accurate predictor of income. Likewise, inclusion of bonuses and other employment related benefits in gross income for the purpose of computing child support under Form 14 is discretionary. Bridgeman v. Bridgeman, 63 S.W.3d 686, 690 (Mo.App. E.D.2002). The trial court is also permitted, in proper circumstances, to impute income to a parent in calculating child support. Quackenbush v. Hoyt, 940 S.W.2d 938, 942 (Mo.App. S.D.1997). The decision of whether to impute income involves the exercise of discretion. Stanton v. Abbey, 874 S.W.2d 493, 499 (Mo.App. E.D.1994). In fact, in this case the trial court applied its discretion in arriving at a different income figure for Husband than that claimed by him. Thus, the determination of income for the purpose of making the calculations under the present Form 14 involves the exercise of discretion. Accordingly, if the present Form 14 were utilized to determine the proportionate incomes of the parties in this case, those calculations would not necessarily be restricted to mere ministerial computations even after a hearing.

The judgment here relating to college expenses is too vague and is unenforceable as framed. Husband’s third point on appeal has merit and the provisions of the judgment relating to postsec-ondary education are reversed. Husband argues that if we determine that these provisions must be reversed, we should merely reverse them and leave the issue for determination at a later date on a motion to modify. Wife, on the other hand, argues that if these provisions are reversed, the matter should be remanded to the trial court for further proceedings at this time. We agree with Wife in that respect.

In In re Marriage of Eskew, 31 S.W.3d 543, 547 (Mo.App. S.D.2000), this court held that a judgment entered in a modification action relating to the father’s responsibility for postsecondary education expenses was premature because the evidence did not establish, among other things, what the expenses would be when the child would enter college more than three years later, or what the income would be for each parent at that time. In doing so, we noted Tuning v. Tuning, 841 S.W.2d 264, 267 (Mo.App. S.D.1992), where it was said:

Consideration of a child’s college expenses need not wait until he has entered college. In fact, there may be circumstances where, unless those expenses are considered in advance, the child could not attend college. An increase in child support for such future expenses can be made effective at a future date and contingent upon the child’s entry into college.

We concluded that the parties in Eskew could seek a ruling from the trial court on the issue of postsecondary education expenses if the child, upon nearing graduation from high school, decided to attend college. 31 S.W.3d at 548. Here, however, the children are now nearing college age. Uncertainty with regard to such expenses would not be in the best interests of the parties or children. Ponce v. Ponce, 102 S.W.3d 56, 64 (Mo.App. W.D.2003). Accordingly, rather than relegating this issue to a future motion to modify, we reverse the portion of the judgment relating to the payment of postsecondary education expenses and remand to the trial court for further proceedings and entry of an amended judgment in that regard, not inconsistent with this opinion. The judgment is otherwise affirmed.

PREWITT, J., and RAHMEYER, J., concur.

      . Murphy v. Carrón interpreted Rule 73.01 which now appears in substantially the same form in Rule 84.13(d).

      . References to statutes are to RSMo (2000) unless otherwise indicated.