John M. Kohl v. Jill M. Kohl

John Kohl ("Father") appeals from a judgment entered in the Circuit Court of Cole County granting Jill Kohl's ("Mother") motion to modify child support. For the following reasons, the appeal is dismissed, and the case is remanded for further proceedings. Father and Mother were married on November 21, 1992. Four children were born of the marriage.

On May 26, 2005, the circuit court entered its judgment dissolving the marriage between Father and Mother. The court awarded Father and Mother joint legal and physical custody of the four minor children and incorporated into its judgment the Separation Agreement and Joint Parenting Plan agreed to by the parties. In the settlement agreement, the parties expressly agreed that "the presumed child support amount, as calculated pursuant to Rule 88.01, Section 452.340, and Form 14 is unjust and inappropriate." The separation agreement provided that Father would pay $565.00 per month in child support1 and awarded him two of the four available tax dependency exemptions.

On December 21, 2006, again pursuant to an agreement between Father and Mother, the court entered a judgment increasing Father's child support obligation to $1,309.00 per month. In all other respects, the decree of dissolution was left in full force and effect. On August 27, 2010, Mother filed a motion to modify the custody and child support. She claimed that circumstances had changed in that (1) the parties' incomes had changed to where there would be more than a twenty percent change in child support, (2) Father was not exercising his Sunday overnight parenting time, (3) business trips caused Father to miss approximately three weeks per year of his parenting time, and (4) more than three years had passed since the last modification.

Following an evidentiary hearing, on July 13, 2011, the circuit court entered its judgment modifying the custody and child support provisions of the previous judgment. In its judgment, the court stated that it was adopting "the attached Form 14" and changing Father's child support obligation to the presumed amount calculated therein.

There are actually two different Form 14s attached to the court's judgment but, based upon the amount awarded in the judgment, it is apparent which the court meant to adopt. As to child custody, the court found "that it would be in the best interest of the minor children that the custody/visitation schedule be amended as set forth in the attached parenting plan" and decrees that Father and Mother "are awarded Joint Physical Custody of the minor children as set forth in the attached Parenting Plan." But no parenting plan is attached to the judgment.

Father filed a Motion to Correct or Amend the Judgment. In his motion, Father noted the attachment of two different Form 14s to the judgment and the lack of an attached parenting plan.2 He argued that the failure to attach the referenced parenting plan results in the judgment not being final. The record does not reflect any subsequent action taken by the trial court in response to Father's motion.

While concluding that it was in the best interests of the children to change the custody schedule and stating that it was adopting an attached parenting plan that it found to be in the best interests of the children, the trial court failed to attach any such plan to the judgment, and nothing in the judgment, the transcript, or anywhere else in the record identifies or describes the parenting plan being adopted by the court.6

Section 452.375.94 dictates that "[a]ny judgment providing for custody shall include a specific written parenting plan setting forth the terms of such parenting plan arrangements specified in subsection 7 of section 452.310."5 See also In re Marriage of Peterson, 39 S.W.3d 580, 582-83 (Mo. App. S.D. 2001) (dismissing appeal where the judgment claimed to adopt an attached parenting plan but no parenting plan was attached and the particulars of the parenting plan could not be gleaned from the record). While concluding that it was in the best interests of the children to change the custody schedule and stating that it was adopting an attached parenting plan that it found to be in the best interests of the children, the trial court failed to attach any such plan to the judgment, and nothing in the judgment, the transcript, or anywhere else in the record identifies or describes the parenting plan being adopted by the court.6

"An appellate court has jurisdiction only over final judgments." In re Marriage of Peterson, 39 S.W.3d at 584 (internal quotation omitted). "A judgment, order, or decree of the trial court is final and appealable only when it disposes of all the issues for all the parties in the case and leaves nothing for future determination." Id. (internal quotation omitted).

In this case, among other issues, Mother asked the court to modify the custody schedule and to modify the original decree to award all four dependency tax exemptions to her. These issues were not resolved in the judgment entered by the trial court, at least in the absence of the parenting plan the court sought unsuccessfully to attach thereto. Accordingly, the appeal must be dismissed, and the case must be remanded for further proceedings consistent with this opinion.

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See: http://www.courts.mo.gov/file.jsp?id=57862

Accordingly, the appeal must be dismissed, and the case must be remanded for further proceedings consistent with this opinion.