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Conrad v. Conrad6/4/2002
for the children if that parent exercises visitation or custody for 36 or more periods per year;
(3) duplicated fixed expenditures for the children if that parent exercises visitation or custody for 110 or more overnight periods per year; and
(4) no significant non-duplicated fixed expenditures for the children.
Thus, for purposes of calculating the PCSA, it is assumed that the parent obligated to pay support will begin to incur "variable expenditures" for overnight periods awarded of 36 or more and "duplicated fixed expenditures" for overnight periods awarded of 110 or more. It is further assumed that the obligor will not incur any significant "non-duplicated fixed expenditures" for periods of CO overnight visitation. Applying these assumptions to the OVA table, it becomes clear that the 6%, 9% and 10% adjustments provided for in the table pertain to variable expenditures only; that duplicated fixed expenditures are not considered in the table percentages and would only come into play for purposes of determining the OVA to be allowed where the periods awarded exceed 109; and that non-duplicated fixed expenditures would not come into play at all in determining the OVA.
Comment B of Line 11 does provide for downward rebuttal of the OVA, which is part of the Form 14 calculation of the PCSA and should not be confused with rebuttal of the PCSA that occurs only after the trial court's determination of the PCSA, step 1 of the Woolridge procedure, is complete. In other words, with respect to the Woolridge procedure, CO overnight visitation is a rejection or calculation factor under Line 11 (step 1), while NCO overnight visitation is a rebuttal factor (step 2). Woolridge, 915 S.W.2d at 379. As to rebutting the OVA, Comment B of Line 11 reads:
In any proceeding to establish a child support order or to modify the support payable under an existing order, the adjustment on this line 11 may be rebutted if the parent obligated to pay support:
(1) without fault of the parent entitled to receive support, does not exercise the periods of overnight visitation or custody with the children who are the subject of this proceeding awarded under any order or judgment,
(2) does not incur significant duplicated fixed expenditures as a result of periods of overnight visitation or custody, or
(3) without fault of the parent entitled to receive support, exercises the periods of overnight visitation or custody awarded under any order or judgment with some but not all the children who are the subject of this proceeding.
As to these three bases for rebutting the OVA set out in Comment B, we would note the apparent conflict between limiting the second basis of rebuttal to "duplicated fixed expenditures" and Assumption 12, discussed, supra, which makes it clear that "variable expenditures" are presumed for overnight periods of 36 or more. Given Assumption 12, it makes no sense to limit rebuttal of the OVA to duplicated fixed expenditures when the OVA is clearly predicated on the assumption that before the parent obligated to pay support incurs duplicated fixed expenditures, he or she necessarily is presumed to incur variable expenditures. The answer to this quandary may lie in the fact that the language of Comment B is couched in terms of "may." The use of "may" in this context implies alternate possibilities, State ex rel. Nixon v. Boone, 927 S.W.2d 892, 897 (Mo. App. 1996), and, thus, we interpret it as allowing rebuttal of the OVA on bases others than those specified in Comment B, including a showing that the obligated parent does not incur significant variable expenditures as a result of the overnight periods awarded.
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