author: THOMAS H. NEWTON, Chief Judge.

text:
    J.P. and H.P., by J.P., His Attorney in Fact; D.S. and R.S., by D.S., His Attorney in Fact; V.P. and G.P., by V.P., Her Attorney in Fact; S.M. and V.M., by S.M., Her Attorney in Fact, Appellants, v. MISSOURI STATE FAMILY SUPPORT DIVISION AND ITS DIRECTOR, Janel Luck, Respondents.
    No. WD 70994.
    Missouri Court of Appeals, Western District.
    April 20, 2010.
    Application for Transfer Denied Sept. 21, 2010.

      Barbara J. Gilchrist, John J. Ammann, St. Louis, MO, Mary R. McCormick, Liberty, MO, Dianne M. Hansen, Springfield, MO, Michael C. Week, St. Charles, MO, for Appellants.
    Thais A. Folta, Sarah E. Ledgerwood, Jonathan M. Hensley, Jefferson City, MO, for Respondents.
    Before: Thomas H. Newton, C.J., James M. Smart, Jr., and Cynthia L. Martin, JJ.
   THOMAS H. NEWTON, Chief Judge.

The Missouri State Family Support Division (the Division) denied J.P., H.P.; D.S., R.S.; V.P., G.P.; and S.M., V.M. (the Couples) eligibility for long-term care benefits under Missouri’s Medicaid program because of the ownership of certain annuities. The Couples sought declaratory and injunctive relief in a lawsuit, alleging that the policy applied by the Division was in violation of state and federal law. The trial court denied their claims. At issue is whether a community spouse’s income from a commercial annuity may be considered an available resource in determining an institutionalized spouse’s eligibility for Medicaid assistance. We reverse and remand.

Factual and Procedural Background

Medicaid is a cooperative federal-state program assisting low-income individuals in meeting the costs of their medical care. State v. Knight, 280 S.W.3d 647, 650 (Mo.App. W.D.2009). A state choosing to participate in the program receives reimbursement from the federal government for a portion of the cost of providing medical assistance. In re Estate of Shuh, 248 S.W.3d 82, 84 (Mo.App. E.D.2008). Participation requires the state to comply with federal statutes and regulations and to “ ‘develop[ ] a plan containing reasonable standards ... for determining eligibility for ... medical assistance’ within boundaries set by the Medicaid statute and the Secretary of Health and Human Services.” Wis. Dep’t of Health & Family Servs. v. Blumer, 534 U.S. 473, 479, 122 S.Ct. 962, 151 L.Ed.2d 935 (2002) (quoting Schweiker v. Gray Panthers, 453 U.S. 34, 36-37, 101 S.Ct. 2633, 69 L.Ed.2d 460 (1981)); see also Knight, 280 S.W.3d at 650. Missouri’s state Medicaid program is codified at section 208.001, et. seq. Knight, 280 S.W.3d at 650. In 2007, Missouri’s program was renamed “MO HealthNet.” Oanh Thile Huynh v. King, 269 S.W.3d 540, 542 n. 2 (Mo.App. W.D.2008).

In order to qualify for Medicaid assistance, a person’s available income and assets must be below certain limits. Shuh, 248 S.W.3d at 84. When a married person enters a nursing home (the “institutionalized spouse”), the finances of both the institutionalized spouse and the non-institutionalized spouse (“community spouse”) are considered in determining if the institutionalized spouse is eligible for Medicaid assistance for the costs of long-term care. N.M. v. Div. of Med. Assistance & Health Servs., 405 N.J.Super. 353, 964 A.2d 822, 823 (N.J.Super.Ct.App.Div.2009) (citing 42 U.S.C. § 1396r-5(c)(2)). Consequently, a couple may have to dispose of their assets to reduce them below federal and state limits — also known as “spending down”— before the institutionalized spouse can become eligible for assistance. Shuh, 248 S.W.3d at 84. These “spend down” requirements can pose a hardship on a community spouse, “who face[s] the prospect of being left with virtually nothing to live on once the couple’s income and resources are reduced to the level necessary to qualify for Medicaid.” Id.

In 1988, Congress enacted the Medicare Catastrophic Coverage Act (MCCA), which contains provisions allowing the community spouse to shelter income and a degree of assets from being considered available for the institutionalized spouse’s long-term medical care. Id. In enacting the MCCA, Congress sought to protect the community spouse from poverty, but it also wanted to protect the Medicaid system from abuse. Id. at 86. Thus, because Medicaid’s purpose is to provide medical assistance to needy persons, the MCCA also contained provisions to prevent Medicaid applicants from artificially impoverishing themselves to obtain benefits. McKenzie v. State, Dep’t of Soc. Servs., Div. of Family Servs., 983 S.W.2d 196, 198 (Mo.App. E.D.1998).

After the MCCA’s enactment, when one spouse enters a long-term care facility and another remains in the community, a division of assets is performed. Gee v. Dep’t of Soc. Servs., Family Support Div., 207 S.W.3d 715, 716 (Mo.App. W.D.2006). A portion of the couples’ assets is set aside for the benefit of the community spouse and is not used in calculating the institutionalized spouse’s Medicaid eligibility. Blumer, 534 U.S. at 480-81, 122 S.Ct. 962. This resource allowance is referred to as the “community spouse resource allowance,” or “CSRA.” Id. at 478, 122 S.Ct. 962. “Although the community spouse’s resources must be taken into account in determining whether the institutionalized spouse satisfies the resource eligibility limit, the community spouse’s income may not be considered in determining whether the institutionalized spouse satisfies the income eligibility limit.” N.M., 964 A.2d at 823 n. 1 (citing 42 U.S.C. § 1396r-5(b)(1)) (emphasis added). The community spouse’s income is reserved solely for the benefit of the community spouse. 42 U.S.C. 1396r-5(b)(1); Blumer, 534 U.S. at 480-81, 122 S.Ct. 962.

Congress subsequently enacted the Deficit Reduction Act of 2005(DRA) which “effect[ed] broad changes to the laws governing Medicare and Medicaid coverage.” Vieth v. Ohio Dep’t of Job & Family Servs., No. 08AP-635, 2009 WL 2331870, at *4 (Ohio App. July 30, 2009) (internal quotation marks and citation omitted). The Medicaid Program’s treatment of annuities was among those changes. Id. Also in 2005, the Missouri Legislature enacted section 208.212, which provided that a pre-eligibility investment in an annuity “shall be limited” to those annuities that were: (1) actuarially sound, (2) provided for roughly equal payments over the life of the annuity and excluded balloon-style final payments, and (3) named Missouri as “secondary or contingent beneficiary ... ensuring payment if the individual predeceases the duration of the annuity” for the payments made by the State on the indi-viduál’s behalf. § 208.212 RSMo Cum. Supp.2005.

In July 2007, the Missouri Legislature amended section 208.212. The section now provides that the stream of income from an annuity will not be considered an available resource in determining Medicaid eligibility, provided the annuity meets the prior three requirements (actuarially sound, roughly equal payments over the annuity’s life, Missouri named as remainder beneficiary) and a new requirement: the annuity must “Name and pay the MO HealthNet claimant as the primary beneficiary.” § 208.212.1(4).

The Division is charged with administering Missouri Medicaid policy. Prior to the July 2007 amendment of section 208.212, the Division treated the income stream from an annuity as excluded from the resources available to an institutionalized spouse, so long as the annuity met section 208.212’s three requirements. See Mo. State Family Support Div. Income Maint. Manual § 1030.030.05 (2005). In November 2007, the Division amended the “Income Maintenance Manual” (IMM), which is what its employees rely on in making eligibility determinations. The Division interpreted section 208.212.1(4) to require the income stream from an annuity to be paid to the institutionalized spouse in order to exclude the annuity income from the eligibility determination. Mo. State Family Support Div. Income Maint. Manual §§ 1030.030.05-10.10 (2007). As a result of its interpretation, the Division adopted a definition of “primary beneficiary” which equates the term with the “annuitant” or the initial payee of an annuity. Id. at § 1030.030.05. Consequently, the Division now includes annuities that pay income to the community spouse in the calculation of resources available to the institutionalized spouse. See id. at § 1080.030.10.10.

The Couples were denied Mo HealthNet eligibility because the Division determined that the community spouse’s ownership of an annuity prevented the institutionalized spouse from qualifying for assistance. The Division determined that the annuities were not excluded from the resource computation because the new subsection 208.212.1(4) required that the institutionalized spouse be the recipient of the income stream. The parties do not dispute whether the annuities at issue otherwise met the requirements for exclusion under section 208.212.1. The Couples sought declaratory and injunctive relief. The trial court determined that the Division’s decisions on Medicaid eligibility were consistent with the amended section 208.212 and denied the request for relief. The Couples appeal, raising three points.

Standard of Review

In a bench-tried case, we generally affirm the trial court’s judgment unless there is no substantial evidence to support the decision, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Knight, 280 S.W.3d at 650 (citing Murphy v. Carron, 586 S.W.2d 30, 32 (Mo. banc 1976)). However, in questions of law, our review is de novo, and we give no deference to the trial court. Id. Statutory construction is a question of law, as is the issue of whether a state statute conflicts with federal law. See id.; Bechtel ex rel. Bechtel v. State Dep’t of Soc. Servs., Family Support Div., 274 S.W.3d 464, 467 (Mo. banc 2009).

Legal Analysis

In their first point the Couples argue that the Division’s interpretation of section 208.212 violates federal Medicaid law. The Division states that its interpretation of Medicaid eligibility requirements is consistent with Congressional intent. This point is dispositive of the case; the other points will not be addressed.

When a state accepts federal Medicaid funds, it is required to comply with federal statutes and regulations in administering the program. Mo. State Div. of Family Servs. v. Barclay, 705 S.W.2d 518, 521 (Mo.App. W.D.1985). A state may design its own plan, but the plan must operate within the framework set forth by the federal government. Id. Thus, Missouri is obligated to comply with federal conditions. Id.; see also Shuh, 248 S.W.3d at 84. Missouri law, section 208.010.6, also “explicitly requires that the Agency must comply with federal law ... when determining the eligibility of institutionalized spouses for medical assistance benefits.” Gee, 207 S.W.3d at 721. That provision states:

when determining the eligibility of institutionalized spouses, as defined in 42 U.S.C. Section 1396r-5, for medical assistance benefits as provided for in section 208.151 and 42 U.S.C. Sections 1396a et seq., the division of family services shall comply with the provisions of the federal statutes and regulations.

§ 208.010.6. Federal regulations provide that “[i]n determining the eligibility of individuals under the income standards established under this section, the agency must not take into account income that would be disregarded in determining eligibility for SSI or for an optional State supplement.” 42 C.F.R. § 435.622(b). Federal statutory law further provides that “[t]he methodology utilized to determine eligibility for services by the state cannot be more restrictive than the methodology utilized by the federal government.” Plumb v. Mo. Dept. of Soc. Servs., Family Support Div., 246 S.W.3d 475, 479 (Mo.App. E.D.2007) (citing 42 U.S.C. § 1396a(r)(2)(A)).

We believe the Division’s interpretation of section 208.212, which includes annuity income paid to the community spouse as a resource available to the institutionalized spouse, is contrary to federal Medicaid law. In James v. Richman, addressing an eligibility issue occurring before Congress enacted the DRA, the Third Circuit found that “an irrevocable, non-alienable annuity” payable only to the community spouse could not be included in a calculation of available resources because it “does not fit the statutory definition of an available resource.” 547 F.3d 214, 219 (3d Cir.2008). The court reasoned that because the state’s methodology cannot be more restrictive than the method used by the SSI, “the Department cannot treat as available resources any assets that the SSI regulations would not treat as available resources.” Id. at 218. It concluded that because the annuity could not be transferred without the community spouse incurring legal liability for breach of contract, it did not fit the SSI regulatory definition of an “available resource,” which required that the owner have the power to liquidate the resource. Id. (citing 20 C.F.R. § 416.1201(a)(1)). Although the Department in James argued that the community spouse could sell the rights to the annuity payments, and thus had the power to liquidate, the James court rejected this hypothetical on the basis that the theory supported counting social security income and retirement payments as “available resources” despite Congress’s statutory directive that “no income of the community spouse shall be deemed available to the institutionalized spouse.” Id. at 219 (quoting 42 U.S.C. § 1396r-5(b)(l)).

Following enactment of the DRA, a New Jersey appellate court determined that the value of a community spouse’s annuity could be used in determining an institutionalized spouse’s eligibility for Medicaid. N.M., 964 A.2d at 829. The N.M. court reasoned that in the DRA, Congress sought to close loopholes that allowed the wealthy to hide assets in order to qualify for Medicaid, that the DRA required annuities to be disclosed, and that an agency within the Department of Health and Human Services charged with administering Medicaid had issued a publication stating that “even if an annuity is not subject to [transfer] penalty under the provisions of the DRA, this does not mean that it is excluded as income or resource.” Id. at 828.

N,M.’s interpretation, however, was rejected in both Weatherbee ex rel. Vecchio v. Richman, 595 F.Supp.2d 607, 611-12 (W.D.Pa.2009), and Vieth, 2009 WL 2331870, at *10. The Weatherbee court relied on the reasoning in James and rejected the Department’s argument that James was distinguishable as a result of the DRA.

A community spouse’s income ... is completely protected and does not affect the ... eligibility of the institutionalized spouse. Where the payment of income from a trust or other instrument is made solely in the name of the community spouse, the income is considered to be income to that spouse only, unless the instrument providing the income specifies otherwise. Federal regulations define payments from an annuity as unearned income.

595 F.Supp.2d at 611 (internal citations omitted). The Vieth court similarly found that the DRA did not alter “the longstanding rule under 42 U.S.C. 1396r-5,” which preserves the community spouse’s income from eligibility requirements, nor did it undermine the rationale in James. Vieth, 2009 WL 2331870, at *11. See also Johnson v. Lodge, 673 F.Supp.2d 613, 617 (M.D.Tenn.2009) (approving the “annuity method” of determining CSRA increases).

The Division refers us to subsections 42 U.S.C. § 1396p(c)(l)(F) and (e)(4), enacted in the DRA, for the proposition that federal law prohibits one spouse from transferring all of the couples’ assets into an annuity in order to qualify for Medicaid. However, the provisions the Division cites do not support this proposition. Subsection 42 U.S.C. § 1396p(c)(l)(F) provides that a transfer of assets “shall be treated as the disposal of an asset for less than fair market value” (thereby triggering transfer penalties) unless the annuity names the State as a “remainder beneficiary.” Subsection 42 U.S.C. § 1396p(e)(4) provides, “Nothing in this subsection shall be construed as preventing a State from denying eligibility for medical assistance for an individual based on the income or resources derived from an annuity described in paragraph (1).” This latter paragraph, as cogently stated in Weatherbee:

expressly limits its effect to ‘this subsection.’ It does not purport to alter the well-established rule ... that ‘no income of the community spouse shall be deemed available to the institutionalized spouse.’ 42 U.S.C. § 1396r-5(b)(l). Indeed, 42 U.S.C. § 1396r-5(a)(l) provides that, ‘[i]n determining the eligibility for medical assistance of an institutionalized spouse ... the provisions of this section supersede any other provision of this subchapter ... which is inconsistent with them.’ ... 42 U.S.C. § 1396p(e)(4) simply makes clear that which would otherwise be implied. Namely, that disclosing the purchase of an annuity and naming the state as a remainder beneficiary will not, in and of itself, prevent a state from denying eligibility for income or resources derived from an annuity. A state could, for example, deny eligibility for a variety of reasons including, but not necessarily limited to, lack of an aetuarially sound annuity or where the income from the annuity was not solely for the benefit of the community spouse.

595 F.Supp.2d at 616-17. Indeed, the section delineates “those additional requirements with which a Medicaid applicant must comply in order to successfully transfer assets, without penalty, to an irrevocable annuity.” Id.

We find the reasoning in James, Weath-erbee, and Vieth persuasive. More importantly, we find the relevant federal statutes to dictate a result. Income includes “any payments received as an annuity, pension, retirement, or disability benefit.” 42 U.S.C. § 1382a(a)(2)(B). Title 42 U.S.C. § 1396r-5(b)(l) declares that “no income of the community spouse shall be deemed available to the institutionalized spouse.” Although the DRA added notification and disclosure requirements related to annuities, Congress did not choose to abrogate these standing provisions or the decisions interpreting them. Although the Division argues that Congress did not intend to permit the sheltering of assets in a program designed to benefit the poor, “[i]t is for the Congress to determine if and how this loophole should be closed.” Mertz ex rel. Mertz v. Houstoun, 155 F.Supp.2d 415, 428 (E.D.Pa.2001). Consequently, the Division’s denial of Medicaid eligibility based on the community spouses’ income from these annuities does not comply with existing federal Medicaid eligibility rules. Because both federal law and Missouri law require the Division to comply with federal eligibility rules, the policy cannot stand. See Bechtel, 274 S.W.3d at 468 (reversing and remanding where Department’s denial of benefits was improper under federal Medicaid law, despite Department’s reliance on amended Missouri statute).

The Division, however, argues that it is only implementing changes instituted by the Missouri legislature in the 2007 amendment of section 208.212. It argues that its interpretation of section 208.212 was intended by the Missouri Legislature. In other words, the Division contends that the Legislature intended “primary beneficiary” as used in subsection 208.212.1(4) to mean that the institutionalized spouse must be the person receiving the annuity’s income stream. The Couples, however, argue that the Legislature intended “primary beneficiary” to mean the institutionalized spouse must be designated to receive the income stream in the event of the community spouse’s death.

When interpreting a statute, our primary task is to determine the legislature’s intent. In re Estate of Bruce, 260 S.W.3d 398, 401 (Mo.App. W.D.2008). “The preferred means for doing this is to accord the statute’s language its plain and ordinary meaning.” Id. However, we do not construe a statute narrowly if that interpretation would conflict with the statute’s purpose. PDQ Tower Servs., Inc. v. Adams, 213 S.W.3d 697, 698 (Mo.App. W.D.2007). “Indeed, the [Missouri] Supreme Court has instructed that the primary rule of statutory construction is to glean legislative intent by understanding the statute according to its objective.” Bruce, 260 S.W.3d at 405. Isolated sentences do not guide us: “[W]e look to the provisions of the whole law and its object and policy.” Renner v. Dir. of Revenue, 288 S.W.3d 763, 766 (Mo.App. E.D.2009).

Under these rules of construction, we cannot accept the Division’s interpretation of the isolated phrase “primary beneficiary” in subsection 208.212.1(4). First, the Division’s reading results in the section creating a rule that, in order to be excluded from the resource computation, the annuity must pay the income stream to the institutionalized spouse. We cannot agree with the Division that the Missouri Legislature intended to exclude from the resource computation those annuities which pay income to the institutionalized spouse — the very person receiving Medicaid benefits. We fail to see that such a rule has a plausible rationale within the Medicaid scheme. Moreover, although the Division argues that the intent of section 208.212 is to prevent couples from sheltering assets, it fails to explain how its interpretation of subsection 208.212.1(4) furthers this goal.

Second, given Medicaid’s dual concerns with protecting a community spouse from poverty, while at the same time barring couples from sheltering assets for their heirs, we find it more reasonable that the Missouri Legislature added that an excludable annuity must “[n]ame and pay the MO HealthNet claimant as the primary beneficiary” in order to ensure that an excluded annuity could not pay another heir in the event of the community spouse’s death. Reading the provisions together, as we must, subsection 208.212.1(3) then provides that in the event of the institutionalized spouse’s subsequent death the State shall be the “secondary or contingent beneficiary” for the amounts expended on the institutionalized spouse’s behalf.

Finally, we are obliged to read different “statutes relating to the same subject matter in pari materia, meaning that we interpret and apply them with reference to each other.” State ex rel BPS Tel. Co. v. Mo. Pub. Serv. Comm’n, 285 S.W.3d 395, 405 (Mo.App. W.D.2009). As noted, Missouri’s section 208.010.6 explicitly requires the Division to comply with federal law when determining the eligibility of institutionalized spouses for medical assistance benefits. Gee, 207 S.W.3d at 721. As discussed supra, the Division’s interpretation of section 208.212.1(4) is not in compliance with federal Medicaid law. The Division’s interpretation consequently would place section 208.212 in conflict with section 208.010.6. We are to harmonize sections of statutes, not read them to be in conflict with one another. See PDQ Tower Services, Inc., 213 S.W.3d at 698. Moreover, we read statutes so as to give effect to the legislature’s purpose. Renner, 288 S.W.3d at 765. We find it unreasonable to imagine that the Missouri Legislature amended a statute in order to render it ineffectual through its conflict with federal law. Point one is granted.

Conclusion

For the foregoing reasons, we reverse the judgment of the trial court and remand for the trial court to issue a judgment consistent with this opinion.

SMART and MARTIN, JJ., concur.

      . “Congress later repealed MCCA through the Medicare Catastrophic Coverage Repeal Act of 1989, 103 Stat. 1979, but the spousal impoverishment prevention provisions were retained ...” N.M. v. Div. of Med. Assistance & Health Servs., 405 N.J.Super. 353, 964 A.2d 822, 826 n. 4 (N.J.Super.Ct.App.Div.2009).

      . Initial Medicaid eligibility is governed by different rules than those applying to determine the extent of assistance after eligibility is granted. Blumer, 534 U.S. at 490, 122 S.Ct. 962. "Other provisions specifically address income allocation in the period after the institutionalized spouse becomes Medicaid eligible.” Id. at 481, 122 S.Ct. 962.

      .Section 208.212.1 states:
      1. For purposes of MO HealthNet eligibility, the stream of income from investment in annuities shall be excluded as an available resource for those annuities that:
      (1) Are actuarially sound as measured against the Social Security Administration Life Expectancy Tables, as amended;
      (2) Provide equal or nearly equal payments for the duration of the device and which exclude balloon-style final payments;
      (3) Provide the state of Missouri secondary or contingent beneficiary status ensuring payment if the individual predeceases the duration of the annuity, in an amount equal to the MO HealthNet expenditure made by the state on the individual's behalf; and
      (4)Name and pay the MO HealthNet claimant as the primary beneficiary.

      .‘‘[T]he IMM does not constitute a compilation of valid rules and has no legal controlling force. [It] is a publication distributed to caseworkers and to claimants for guidance in presenting and processing claims.” Couch v. Dir., Mo. State Div. of Family Servs., 795 S.W.2d 91, 93 (Mo.App. W.D.1990) (citation omitted).

      . The Division also argues that the Couples waived their claim that the Division's interpretation conflicts with federal law by failing to raise preemption in the trial court. Preemption is a constitutional claim which must be raised at the earliest opportunity in the litigation. State ex rel. Nixon v. McClure, 969 S.W.2d 801, 803 (Mo.App. W.D.1998). However, we reject the Division’s argument and find it unnecessary to address in detail. First, this is not a preemption case, but rather an issue of statutory construction. Second, the purpose of the requirement to raise constitutional issues at the first opportunity is “to prevent surprise to the opposing party, and to permit the trial court an opportunity to fairly identify and rule on the issue.” Id. (internal quotation marks and citation omitted). Where the purposes of the rule are served, the challenge may be denied. Id, at 804. As the Couples note, Medicaid is a cooperative federal-state program and discussion of state policy necessarily involves federal law. Further, the Couples raised federal Medicaid policy in their "Memorandum in Support of Motion for Preliminary Injunction” and asserted that the MCCA requires the Division to follow federal Medicaid policy in making eligibility determinations in their "Response to Defendants’ Post-Trial Brief.” On its part, the Division raised federal law in its post-trial brief, contending that its interpretation of section 208.212 was consistent with federal Medicaid law and Congressional intent. Numerous other references to the interplay between state and federal Medicaid law and policy run throughout the record. Consequently, even if preemption were at issue, the record is sufficient to support that this issue was raised by implied consent, that there was no surprise to the Division, and that the trial court had an opportunity to respond to the issue. See id., Rule 55.33(b).

      . "Transfer penalties” create periods of ineligibility for assistance: "[m]edicaid applicants may not artificially impoverish themselves to obtain benefits ... if an institutionalized claimant or her spouse disposes of assets for less than fair market value on or after a ... look-back period, a claimant is ineligible for medical assistance for a period of time ...” McKenzie v. State, Dept. of Soc. Servs., Div. of Family Servs., 983 S.W.2d 196, 198 (Mo.App. E.D.1998).

      . The entirety of the subsection states:
      (F) For purposes of this paragraph, the purchase of an annuity shall be treated as the disposal of an asset for less than fair market value unless-
      (i) the State is named as the remainder beneficiary in the first position for at least the total amount of medical assistance paid on behalf of the institutionalized individual under this subchapter; or
      (ii) the State is named as such a beneficiary in the second position after the community spouse or minor or disabled child and is named in the first position if such spouse or a representative of such child disposes of any such remainder for less than fair market value.
      42 U.S.C. § 1396p(c)(l)(F).


source: Caselaw Access Project

author: KAREN KING MITCHELL, Presiding Judge.

license: Public Domain

text:
    Dana Marie MURRAY, Respondent, v. Erick Brian MURRAY, Appellant.
    No. WD 71381.
    Missouri Court of Appeals, Western District.
    May 18, 2010.
    Application for Transfer to Supreme Court Denied June 29, 2010.
    Application for Transfer Denied Sept. 21, 2010.

      Jason Davey, Kansas City, MO, for Appellant.
    James D. Boggs and W. Christian Boggs, Kansas City, MO, for Respondent.
    Before Division I: KAREN KING MITCHELL, Presiding Judge, and LISA WHITE HARDWICK and CYNTHIA L. MARTIN, Judges.
   KAREN KING MITCHELL, Presiding Judge.

Erick Murray (“Father”) appeals the judgment entered by the Circuit Court of Platte County (“trial court”) dissolving the marriage between Father and Dana Murray (“Mother”). Specifically, Father challenges the custodial provisions of the parenting plan and the award of child support. We affirm the judgment of the trial court.

Factual Background

Father and Mother were married on April 4, 2004, in Platte County. Their daughter, M.B.M. (“Daughter”), was born on January 31, 2006. Although both Father and Mother were devoted to Daughter and were very actively involved in her care, their marriage was troubled. Father asked Mother to attend marriage counseling with him, but Mother “wasn’t interested.” In January of 2007, when Daughter was about one year old, Mother took Daughter on a vacation in Florida without Father. During that vacation, Mother met Daniel Cross (“Cross”). When Mother returned to Missouri, she asked Father to move out of the home they shared. Father moved out of the home on Daughter’s first birthday.

Mother eventually moved in with her parents and Father moved back into the couple’s home. Due to Father’s work schedule, Mother would have Daughter on Wednesdays through Saturdays and every other Sunday, and Father would have Daughter on the alternate Sundays, as well as Mondays and Tuesdays. Father’s mother would watch Daughter on Sundays when Father had to work. On the occasions when Father would request to have Daughter on Wednesdays, Mother always agreed. Prior to separation and during the period when this temporary custody schedule was in place, Daughter attended day care.

Mother continued to communicate with Cross after she returned from the vacation during which she met him, and the two visited each other periodically. A relationship ensued. On February 19, 2008, Mother gave birth to a son fathered by Cross. Cross had another son, who also lives in Florida, by a previous marriage. Cross and Mother intended to marry as soon as Mother’s divorce from Father was final. Mother’s desire is to take Daughter and her infant son and move in with Cross and his son. Mother plans to stay at home after she marries Cross and to care for the children full time.

Father is also dating someone. He and his girlfriend, Tiffany Gensler (“Gensler”), also plan to marry and Father will move in with Gensler and her foster son, although no definite plans had been made at the time of the trial. No date had been set, and Father was unsure of when he would be moving in with Gensler. Gensler is attempting to adopt her foster son. Father is not involved in the adoption process. If Daughter were to reside primarily with Father, she would attend day care. Because Father has to be at work at 5:00 a.m., either Father’s mother or Gensler would take Daughter to her day care on the two to three weekdays that Father works each week. Either Gensler or Father’s mother would have to care for Daughter on Saturdays and Sundays while Father worked.

After the trial, the trial court entered a judgment and parenting plan allowing Mother to relocate with Daughter to Florida. The judgment gave Mother and Father joint legal custody and joint physical custody, but preferred Mother’s proposed parenting plan over Father’s. The trial court found that Mother’s proposed parenting plan, which included the relocation to Florida, was in Daughter’s best interests because it allowed for a parent (Mother) to care for Daughter full time, whereas both Father and Gensler worked full time, which would require that Daughter remain in outside day care. Also, the court noted that Mother’s plans with Cross were more definite than Father’s plans with Gensler. The court also found that Daughter’s sibling relation with her infant half-brother favored her relocating to Florida with Mother and the infant.

The parenting plan adopted by the trial court provided for Daughter to be with Father from December 22 to January 2 every other year; Father would also have Daughter for one weekend each January on the weekend closest to Daughter’s birthday; one weekend each October on the weekend closest to Father’s birthday; each spring break; and from June 1 until August 15 each summer. This schedule allows Father roughly the same number of days that he had with Daughter before the trial, the days are just clustered together differently and Daughter will reside with Father on more days when he has to work. Mother and Cross also testified that Father could visit Daughter in Florida whenever he wanted and that Father would be welcome to stay at a home owned by Cross that was located next door to the home Cross and Mother would share. The judgment also awarded Mother child support of $571 per month. Father appeals.

Standard of Review

We affirm the judgment of the trial court unless it is not supported by substantial evidence; it is against the weight of the evidence; or it misstates or misapplies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “There is the presumption that the best interests of the child motivate the trial court.” Buschardt v. Jones, 998 S.W.2d 791, 796 (Mo.App. W.D.1999). A trial court’s determination in a child custody matter is given more deference than in any other type of case. Brandow v. Brandow, 18 S.W.3d 584, 587 (Mo.App. W.D.2000).

Legal Analysis

Father’s first three points on appeal will be addressed together, as Father’s argument of these points reveals that they are all interrelated.

A. Adoption of Mother’s Parenting Plan

The first three points are that the trial court erred by (1) giving preference to Mother because of her sex and financial status and because of the age of the child, in violation of section 452.375.8; (2) considering an “irrelevant and non-statutory” factor (that Mother planned to stay at home to care for Daughter) as an overriding factor in choosing which parent’s proposed parenting plan to adopt; and (3) adopting Mother’s proposed parenting plan in that it was not submitted in good faith and was not in Daughter’s best interests.

1. Age of the child and sex and financial status of the parents

Section 452.375.8 provides that “no preference may be given to either parent in the awarding of custody because of that parent’s age, sex, or financial status, nor because of the age or sex of the child.” Id. The particular portion of the judgment to which Father objects states, “It is true that the father has strong family ties in the Kansas City area, however the more important consideration for a child of this age is the care given and to be given by the mother.” (Emphasis added.) Father claims that this portion of the court’s judgment shows that the trial court impermis-sibly preferred Mother because of her sex, her financial status, and the age of Daughter. We disagree.

We agree that the judgment of the court could have been more artfully worded. The language the court used could easily be construed as the trial court having improperly given preference to Mother because of her sex, in violation of section 452.375.8. We find, however, after reviewing this language in the context of the entire judgment, that the above-quoted section does not establish that the trial court gave preference to Mother because she was a mother (a female) but because it determined that the care of a stay-at-home parent (presumably of either sex) would be beneficial to Daughter. Similarly, we do not find that the trial court’s mention of Daughter’s age automatically indicates reversible error. The statute does not prohibit all court consideration of a child’s age, it merely does away with the “tender years” doctrine, which was an historical presumption favoring maternal care of younger children. In this case, we do not find that the portion of the court’s judgment referring to Daughter’s age shows that the court preferred younger children to be primarily in the care of their mothers, but that, as they are not yet of school age and thus require full-time care, they would particularly benefit from being under the care of a stay-at-home parent (again, presumably of either sex) as opposed to an outside day-care provider.

We also do not find that the trial court improperly considered the financial status of the parents when determining which proposed parenting plan best suited Daughter’s interests. No mention of income was made in the court’s judgment. And although Cross’s income exceeds that of Father, there is no evidence that the trial court was impressed by the disparity. Mother testified that her decision to be a stay-at-home parent would cause the Crosses’ financial situation to be “tight” but that they were going to make it work. Also, Cross’s home, pictures of which Mother presented to the court, is adequate, but modest. We do not find, as Father suggests, that the trial court’s consideration of the fact that Mother plans to stay at home to provide full-time care improperly injects finances into the trial court’s decision. Many parents choose to work outside of the home, although their financial situation does not mandate that choice. Others elect to stay at home, even though it creates a significant financial hardship. Therefore, the fact that a parent elects to work or to stay at home does not directly reflect on the relative financial status of the parties. In addition, a court may consider factors that relate to finances, without the financial status of the parties being an improper factor in the court’s decision. See Malawey v. Malawey, 137 S.W.3d 518, 523 (Mo.App. E.D.2004) (a judgment that expresses concern about a mother’s ability to manage her finances is not a finding as to lack of resources and thus does not violate section 452.375). Therefore, we do not find that by considering that the Mother would stay at home the trial court improperly considered the financial status of either parent.

Accordingly, we do not find that the trial court violated the terms of section 452.375.

2. Mother’s plan to stay at home to provide full-time care

A trial court is obligated to make its decision regarding child custody in accordance with the best interests of the child. In making its decision the trial court is to consider “all relevant factors” including eight factors specifically delineated in section 452.375.2. In this case, the trial court’s Judgment of Dissolution of Marriage made findings as to each of the eight statutory factors. Although the trial court found that four of the enumerated factors in section 452.375.2 weighed relatively equally in favor of both Mother and Father, the trial court found that three of the remaining factors weighed in favor of Mother and that one weighed in favor of Father.

In this case, Mother had definite plans to relocate to Florida. She and Cross were planning to marry and already had a child together. Cross could not easily move to Missouri, as he already had a son in Florida who was established in his school, activities, and community. Therefore, Daughter would not have the continuing option of having both of her parents in the same geographical area. The trial court considered the alternative plans presented by both parents.

In addressing section 452.375.2(1), which requires the court to consider the wishes of the parents and their proposed parenting plans, the trial court noted that both Mother’s and Father’s parenting plans were reasonable but found Mother’s plan to be better for Daughter. In support of this finding, the trial court specifically noted that Mother’s plan “provides for a stay at home arrangement for the child,” in that Mother and Cross had promised to marry each other after the dissolution was concluded and then Mother would be “a full time not employed outside the home parent” for Daughter. By comparison the trial court noted that both Father and Gensler are employed full time outside of the home.

In addressing section 452.375.2(3), which requires the court to consider the interaction and interrelationship of the child with parents, siblings, and other persons significant to the child’s life, the trial court found this factor to favor Mother. Although the court acknowledged that Father has strong family ties in Kansas City, it found more persuasive that Mother’s plan allowed Daughter to have a relationship with her infant half-brother and also stated that the “more important consideration for a child of this age is the care given and to be given by the mother.” As noted above, we find this language to again refer to the fact that Mother will be staying at home.

Finally, in considering Daughter’s adjustment to home and community under section 452.375.2(5), the trial court found that Mother and Cross will reside in an appropriate home but that no evidence was presented as to the type of home in which Father and Gensler will reside once they are married. Similarly, while noting that the residential areas in Florida and Blue Springs are “probably both good surroundings for this child,” the trial court found that no evidence was presented regarding the neighborhood where Daughter would live with Father. However, in finding that this factor favored Mother, the trial court stated that the “overriding factor again is that the mother will be a full time parent to the child.”

The only factor that was found to favor Father was that Mother’s plan involved relocating the child out of state. § 452.375.2(7).

It is clear from reviewing the trial court’s findings that the primary factor that weighed in favor of the Mother’s parenting plan was that she would be a full-time, at-home caregiver, while Father’s and Gensler’s work schedules would require that Daughter continue to attend day care two to three days a week and would require that Daughter be cared for by someone other than the Father on Saturdays and many Sundays. Although at-home care is not, as Father points out, an enumerated factor that the court must consider under section 452.375.2, that section specifically requires that the trial court determine the best interests of the child “considering] all relevant factors.” (Emphasis added.) The identity of the primary care provider and whether that provider is a stay-at-home parent are factors that may be considered in determining the best interests of the child and are facts that can be considered in evaluating the eight enumerated factors in section 452.375.2. In Weaver v. Kelling, this court found that the ability of a parent to provide full-time at-home care contributed to a conclusion that relocation was in the best interests of the children, despite the fact that the Missouri parent opposing the relocation had been actively involved in the lives of the children. 53 S.W.3d 610, 613 (Mo.App. W.D.2001).

While we are concerned about the apparent disproportionate weight that the trial court gave to the fact that Mother would be staying at home, and we take exception with the trial court’s characterization of the fact that Mother will be a full-time parent as “[t]he overriding factor” in determining which home environment is better for Daughter, we affirm the trial court’s Judgment that adopted an amended version of Mother’s parenting plan because there is other evidence that supports the Judgment. The trial court found that Mother’s parenting plan allowed Daughter to have a frequent and continuing relationship with her infant brother; provided her with a safe and stable home in a good community; and still allowed Father to have approximately the same number of days with Daughter in his physical custody as he has enjoyed with Daughter living in Missouri, albeit less evenly interspersed.

Father’s proposed plan, while also reasonable, was more indefinite. Father could not say with certainty when he and Gensler planned to marry, when he planned to move in with Gensler, what Daughter’s day-care situation would be, or whether he would be able to reduce his work hours or secure more regular hours. While Father hoped to adopt Gensler’s foster son with her, he was not part of any of the adoption process and nothing had been formalized regarding Father’s involvement in the adoption. Moreover, Father did not provide the type of detailed evidence as to the suitability of Gensler’s residence or neighborhood that Mother presented to the trial court with respect to the home that she and Cross would share with Daughter and her brother. Therefore we find, for all of the above reasons, that the trial court’s determination that Mother’s proposed parenting plan was in Daughter’s best interests was supported by substantial evidence.

3. Good-faith request to relocate

Finally, Father claims that Mother’s request to relocate Daughter to Florida was not in good faith. While Father’s argument in this respect is not clearly articulated, he appears to claim that Mother’s desire to relocate with Daughter is not actually motivated by what is best for Daughter but, instead, is motivated by Mother’s desire to live on the beach in Florida, and by her desire to live with her fiancé and their son. Importantly, what Father never alleges is that Mother’s desire to relocate is motivated by a desire to limit Father’s contact with Daughter. When a court considers whether a parent’s desire to relocate with a child is in “good faith,” the question is whether “the relocating parent’s motive or purpose for relocating [is] something other than to disrupt or deprive the non-relocating parent of contact with the [child].” Swisher v. Swisher, 124 S.W.3d 477, 481 (Mo.App. W.D.2003). While Father claims that Mother’s relocation will have a negative effect on Daughter’s maintaining a frequent and meaningful relationship with Father, he does not claim that the effect was intentional. Accordingly, we find that Mother’s request to relocate was made in good faith.

B. Sufficiency of Details in Parenting Plan

Father’s next point on appeal is that the trial court erred in adopting Mother’s parenting plan in that the plan failed to include all of the details required by section 452.310. Specifically, Father claims that the plan fails to include: (1) the major holiday schedule for each party; (2) provisions for Father’s Day; (3) the times and places for transfer of the child; (4) appropriate times for telephone access; (5) educational decisions; (6) extracurricular activities; (7) child-care providers; (8) dispute resolution; (9) the reasons that Mother should be given sole decision-making authority for religious upbringing and child-care providers; (10) who is to maintain health insurance; and (11) the payment of educational, extraordinary, and child-care expenses. Father is correct in his assertion that all of the above-enumerated items are required to be included in any proposed parenting plan submitted to a trial court. § 452.310.8. Before considering the merits of this point, we must determine whether Father has preserved it for appellate review. Because Mother’s brief fails even to address this point, let alone object to its not having been preserved, we undertake this analysis sua sponte. See Crow v. Crow, 300 S.W.3d 561, 564 (Mo.App. E.D.2009).

Rule 78.07(c) requires that “allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review.” Omissions of items required by section 452.310, such as those Father alleges, are included in those covered by Rule 78.07(c). See Alred v. Alred, 291 S.W.3d 328, 331 (Mo.App. S.D.2009) (holding that Rule 78.07(c) applied to a claim of error made pursuant to section 452.400). The reason for the rule is “to reduce and discourage appeals and subsequent technical reversals for errors in the form of judgments that could easily be corrected by bringing them to the attention of the trial judge.” Wilson-Trice v. Trice, 191 S.W.3d 70, 72 (Mo.App. W.D.2006). Father’s motion for new trial or for reconsideration of the judgment does not include the above alleged omissions. Father never brought these alleged omissions to the attention of the trial court and thus has not preserved the issue for appellate review. Point denied.

C. Child Support

Father’s final point on appeal is that the trial court erred in its award of child support in that the award failed to include Father’s work-related child-care costs; underestimated Father’s visitation travel expenses; and allowed Mother to claim the dependent tax exemption when she has no income. Father claims work-related child-care costs of $240 per month and provides as evidence the Form 14 that Father submitted to the trial court. This form presumably is based upon Daughter’s past day-care expenses. Because of the change in child custody, the $240 monthly figure submitted by Father no longer accurately represents Father’s work-related child-care costs, which would now cover Daughter’s care only for the summer months when Daughter is with Father, along with the week she is in Missouri for spring break, and Father’s time during the winter break every other year. Father apparently has submitted no evidence as to what the amount of these child-care costs would be. Therefore, we find no error with the support award with respect to Father’s work-related child-care costs.

We also find that substantial evidence supports the trial court’s $230 monthly estimate for travel costs. The information provided by Father shows that round-trip flights from Kansas City to Orlando range from $98 to a high Thanksgiving-week price of $885. Assuming that Father flies to Orlando to accompany Daughter to Kansas City (and then home again) for her summer visit, spring break visit, and odd-year winter visit, and that he incurs lodging costs for his weekend visits in October and January of $198 per visit, which is also his figure, the $230 monthly allowance determined by the court is within the range of monthly travel costs of $110 on the low end to $338 on the high end.

Father’s final argument is that the trial court should have allowed Father to claim Daughter as a dependent for tax purposes because Mother has no income. The only authority Father cites for this proposition is section 452.340.6. That section, however, does not apply to the parties in this case. It provides:

The court shall consider ordering a parent to waive the right to claim the tax dependency exemption for a child, enrolled in an institution of vocational or higher education in favor of the other parent if the application of state and federal tax laws and eligibility for financial aid will make an award of the exemption to the other parent appropriate.

§ 452.340.6 (emphasis added). Daughter is not enrolled in an institution of vocational or higher education. Therefore, this provision has no application to the case at bar. The child support awarded by the court is supported by substantial evidence. Accordingly, Father’s final point is denied.

For the above-stated reasons, we affirm the judgment of the trial court.

LISA WHITE HARDWICK, Judge, and CYNTHIA L. MARTIN, Judge, concur.

      .Father's work is scheduled on a two-week cycle. Father works from 5:00 a.m. to 5:00 p.m. On his “short weeks” he works Thursday, Friday, and Saturday, for a total of 36 hours, not including overtime. On his “long weeks” he works Wednesday, Thursday, Friday, and Saturday, for a total of 48 hours, not including overtime. He often has overtime on Sundays; sometimes it is optioned, sometimes it is mandatory, and the hours vary depending on the workload. Father estimates that there are roughly sixteen Sundays per year that he does not work.

      . Cross’s older son spends roughly half of his time with Cross and the other half with his mother, who lives nearby.

      . It appears that Mother plans to move to Florida regardless of what this court decides and thus allowing relocation facilitates the development of a sibling relationship.

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

      . Father stated that he believed that he would, at some point, be able to get more regular “nine to five” hours, but he could not provide any definite details.

      . Father's argument implies that the travel cost estimate of $230 determined by the trial court is intended to represent Father’s travel costs per trip. Instead, the total estimated travel costs for the year are added up and then averaged to arrive at a per-month figure.

      . Father also has submitted information pertaining to expenses for meals and entertainment. Father would presumably have these costs whether he visited Daughter in Florida or in Missouri, and we do not include them in his estimated travel expense figures.