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Conrad v. Conrad6/4/2002
As noted, supra, with respect to the Woolridge procedure, CO overnight visitation is a rejection or calculation factor under Line 11, while NCO overnight visitation is a rebuttal factor. Woolridge, 915 S.W.2d at 379. Hence, in determining its award of child support, the trial court here could only consider the periods of Husband's NCO overnight visitation with Michael in the context of rebutting its PCSA, which it did. The issue, however, in this point, as framed by the parties, is not whether such visitation was a proper subject for rebuttal of the PCSA, determined by the trial court, but whether the proof was sufficient to permit the court's downward rebuttal of the PCSA. This issue necessarily requires us to determine which party had the burden of proof as to the rebuttal of the PCSA on the basis of NCO overnight visitation and whether that burden was satisfied. Specifically, the issue is whether Husband, to rebut the PCSA found by the trial court, had the burden to prove that his NCO overnight visitation with Michael resulted in Husband's incurring additional expenses or whether he could rely on the same expense assumption on which the rebuttal of the Line 11 OVA is predicated.
As discussed, supra, the first step of the mandatory Woolridge procedure requires the trial court to determine the PCSA. Woolridge, 915 S.W.2d at 379. The amount so calculated is presumed to be the correct amount for the trial court to award as child support and is the amount to be awarded, unless in the second step of the procedure the court finds that the PCSA is unjust and inappropriate requiring rebuttal. Rule 88.01; section 452.340.9. The burden of proof in the case of rebuttal of the PCSA is on the child support obligor. Crews v. Crews, 949 S.W.2d 659, 669 (Mo. App. 1997). And, in rebutting the PCSA, unlike rebutting the Line 11 OVA, which is predicated on the exercise of periods of CO overnight custody or visitation, there is no express assumption that the obligor incurs added expenditures by the mere virtue of exercising periods of NCO overnight custody or visitation. Thus, unlike rebutting the Line 11 OVA, where the burden is on the child support obligee to rebut the assumed expenses of the obligor for exercising CO overnight periods of custody or visitation, in the case of rebutting the PCSA on the basis of NCO overnight periods of custody or visitation, the burden should and would logically fall on the obligor to show that as a result of exercising such custody and visitation, he or she would incur additional expenses, rendering the award of the PCSA unjust or inappropriate. Logically, this is so in that for us to rule the other way would effectively shift the burden of proof for rebutting the PCSA, on the basis of the exercise of NCO overnight visitation, to the child support obligee.
Given the foregoing discussion, to rebut downward the PCSA found by the trial court as being unjust or inappropriate on the basis of his NCO overnight visitation with Michael, Husband had the burden to demonstrate that such visitation resulted in his incurring significant additional expenses. In that regard, it is beyond dispute that Husband offered no such evidence. Thus, there was insufficient evidence to support the trial court's downward rebuttal of its PCSA from $198 to $100 on the basis of NCO overnight visitation.
As noted, supra, the trial court, in rebutting the PCSA, not only reduced Husband's monthly child support payment from $198 to $100, but also awarded him the tax exemption for Michael on the same basis as it lowered his payment. In that regard, the court found: "Although Respondent will be designated as Michael's primary custodial parent, the child will be residing with the Petitioner during
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