## Facts

- Francis E. Sherman (Husband) and Janet A. Sherman (Wife) married on April 28, 1983, and had two children, Nicole (born May 20, 1984) and Alicia (born August 4, 1987).
- During the dissolution proceedings, the trial court had to determine Husband’s child-support obligation to Wife.
- Husband worked for Carondelet Health Center (and related entities) and earned annual gross income of $76,646.38 at the time of trial.
- During the marriage, the parties started FNJ Maintenance Company (FNJ), a family business.
- FNJ earned more than $52,000 in its first year, but its income declined significantly for several years before the dissolution case.
- In the last three years of FNJ’s operation, FNJ earned approximately $26,000, $9,000, and $9,000.
- FNJ lost its last contract. Husband decided not to rebid that contract and did not seek other contracts, citing competition, costs, and being tired of the business; he testified FNJ was no longer a going concern.
- No evidence was introduced that other contracts were available or that FNJ could generate income comparable to earlier years.
- Wife testified there was some evidence FNJ was still paying Husband income.
- For its Form 14 worksheet, the trial court imputed to Husband an additional $1,000 per month in gross income from FNJ.
- The trial court found the presumed child-support amount unjust and inappropriate because it was not sufficient to cover the children’s reasonable needs and ordered Husband to pay $1,500 per month.
- Husband also challenged the trial court’s division of marital property, including the allocation of FNJ to him.

## Issues

1. Did the trial court err by imputing $1,000 per month in gross income to Husband from FNJ for purposes of the Form 14 child-support calculation, where the evidence showed FNJ’s steep decline and no proof of available replacement contracts?
2. Did the trial court err under Rule 88.01 by rebutting the presumed child-support amount as unjust and inappropriate and setting support at $1,500 per month?
3. Did the trial court abuse its discretion under § 452.330 RSMo by dividing the marital property in a manner Husband claimed was unfairly weighted toward Wife?

## Decision

- The Missouri Court of Appeals, Western District held that imputing $1,000 per month of income from FNJ was not supported by substantial evidence.
- Because the Form 14 calculation relied on the unsupported imputed income, the child-support award could not stand; the court reversed and remanded the child-support award for further consideration and recalculation.
- The court affirmed the remainder of the dissolution judgment, including the marital property division, finding no abuse of discretion.
- Disposition: affirmed in part; reversed and remanded in part (child support).

## Legal Principles

- Imputation of income for child support must be supported by substantial evidence that the parent actually earns the imputed amount or can realistically earn it under the circumstances; a specific imputed figure cannot rest on speculation.
- Imputed income is used to prevent a parent from avoiding a child-support duty by deliberately reducing earnings, but the record must still show a factual basis for the earning capacity attributed to the parent.
- Rule 88.01 requires the court to determine the presumed child-support amount using Form 14 and permits deviation only if the presumed amount is found unjust or inappropriate after considering relevant factors; if the Form 14 inputs are wrong, the resulting support award must be reconsidered.
- In a dissolution case, the division of marital property under § 452.330 RSMo is reviewed for abuse of discretion; an unequal distribution may be affirmed if it falls within a reasonable range supported by the record.

## Conclusion

The appellate court reversed and remanded the child-support award because the trial court lacked substantial evidence to impute $1,000 per month of income to Husband from the parties’ declining family business, FNJ, making the Form 14 calculation unreliable and requiring a new child-support determination, while affirming the marital property division as within the trial court’s discretion.


Sherman v. Sherman, 160 S.W.3d 381 (2004)