Alberswerth v. Alberswerth

• Decision Date: 24 January 2006
• Docket Number: No. WD 65322.,WD 65322.
• Citation: 184 S.W.3d 81
• Parties: Robbie Arthur ALBERSWERTH, Respondent, v. Teresa Leann ALBERSWERTH, Appellant.
• Court: Missouri Court of Appeals

184 S.W.3d 81

Robbie Arthur ALBERSWERTH, Respondent, v. Teresa Leann ALBERSWERTH, Appellant.

No. WD 65322.

Missouri Court of Appeals, Western District.

January 24, 2006.

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Weldon W. Perry, Jr., Lexington, MO, for Appellant.

Wanda A. Hansbrough, Parkville, MO, for Respondent.

Before ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE and JAMES M. SMART, JJ.

ROBERT G. ULRICH, Presiding Judge.

Teresa Alberswerth appeals the Lafayette County Circuit Court's Judgment of Modification, which modified a Judgment Decree of Dissolution of Marriage. Ms. Alberswerth presents four points on appeal. First, she claims the modification judgment does not contain sufficient written findings with regard to the modification of child custody. Second, she claims the trial court's award of sole physical custody of the two minor children, born to the parties during their marriage, to Mr. Alberswerth was not supported by substantial evidence and was against the weight of the evidence. Third, she claims the trial court erred in assessing attorney's fees and Guardian Ad Litem fees against her. Finally, she claims the trial court erred in allowing certain documents to be admitted during trial. Ms. Alberswerth's first point and third point, with respect to attorney's fees, are granted and the judgment is reversed and remanded. Her second point is not reached, and her third point, with respect to Guardian Ad Litem fees, and fourth point are denied.

Facts

Robbie and Teresa Alberswerth were married on April 20, 1985. They had two sons during the marriage; Chance Alberswerth was born December 31, 1990, and Trace Alberswerth was born October 7, 1993. The marriage was dissolved on October 25, 2002.

Ms. Alberswerth is a schoolteacher and Mr. Alberswerth owns and operates a brickyard. They live approximately two blocks from one another and from the children's school. Trace Alberswerth has been diagnosed as having Attention Deficit Disorder with Oppositional Defiance Disorder. He has been and continues to be under the care of both a psychiatrist and a psychologist and takes medication to treat his behavioral issues.

In the Judgment Decree of Dissolution of Marriage, the trial court awarded no child support to either party, awarded Mr. Alberswerth sole legal custody of the children, and designated Mr. Alberswerth the primary residential parent for the two children.¹ Ms. Alberswerth was awarded parenting time with the two children from 3:00 p.m. to 6:00 p.m. on weekdays during the school year. Ms. Alberswerth also was awarded parenting time with the children overnight on Thursdays. Mr. Alberswerth was awarded parenting time with the children the remainder of the time during the week. The children alternated weekends between Mr. and Ms. Alberswerth. The Judgment further decreed that Mr. Alberswerth was to call Ms. Alberswerth every Sunday at 7:00 p.m. to review their calendars and their sons' activities for the upcoming week.

The physical custody schedule during the summer was as follows: During the week, Mr. Alberswerth had parenting time with the children from 6:00 p.m. to 9:00 p.m. and Ms. Alberswerth had parenting time with the children the remainder of the time. The weekend physical custody schedule was the same as during the school year, with the children alternating weekends between Mr. and Ms. Alberswerth. The Judgment additionally provided for physical custody arrangements for holidays and birthdays and made other provisions consistent with a comprehensive parenting plan.

The Judgment also contained a right of first refusal, which read as follows:

Each party shall grant to the other a "right of first refusal" for parenting time with regard to care of the minor children. Said right of first refusal would "vest" if the children are to be outside the custody of the parent with the children for two hours or more.

Further, the Judgment contained a provision stating that the parents had the right to alter, modify, and otherwise arrange for specific custody periods on terms and conditions conducive to the best interests and welfare of the children.

On November 7, 2003, Ms. Alberswerth filed a Motion to Modify Judgment of Dissolution of Marriage alleging that the circumstances of her sons and Mr. Alberswerth had changed substantially and on a continuing basis such that the children's best interest required modification of custody, visitation, and support as set forth in the Judgment of Dissolution. Ms. Alberswerth alleged, inter alia, that Mr. Alberswerth behaved inappropriately toward or in the presence of Trace Alberswerth and that he refused to offer her the right of first refusal set forth in the dissolution judgment. She prayed for legal and physical custody of the children, child support, attorney's fees, and costs.

Because of the allegations of abuse or neglect, the court appointed a Guardian Ad Litem. In her proposed parenting plan, filed with the court on January 16, 2004, Ms. Alberswerth sought joint legal custody and primary physical custody,² with Mr. Alberswerth having visitation one weekday per week from 3:00 p.m. to 9:00 p.m., every other weekend, and six weeks during the summer.

On June 8, 2004, trial was scheduled for September 17, 2004. On September 1, 2004, Ms. Alberswerth received notification that Mr. Alberswerth would call Dr. Kevin Mays at trial as an expert witness and that his deposition was scheduled for September 8, 2004. Dr. Mays was Trace Alberswerth's treating psychologist. On September 2, 2004, the next day, Ms. Alberswerth filed several relevant motions with the trial court; these were a Motion to Strike Expert Witness Opinion and Testimony, a Motion to Quash Depositional Notices, and a Motion in Limine. The trial court conditionally granted the Motion to Strike Expert Witness Opinion and Testimony, granted the Motion to Quash Depositional Notices, and denied the Motion in Limine.

Trial was had on September 17, 2004. During trial, a redacted letter written by Dr. Mays was admitted into evidence, pursuant to a pretrial stipulation. Certain medical records of Dr. Mays were also admitted, over Ms. Alberswerth's objections.

On October 18, 2004, the trial court rendered its Judgment of Modification. The court found that modification was required because "since the dissolution of the marriage, the parties have interacted in a manner which is not in the best interest of the minor children." The trial court also found that Ms. Alberswerth "has demonstrated an inability to properly care for and handle Trace Alberswerth's needs." Finally, the trial court found that "the best interest of the minor children warrants and demands a modification of the original judgment to reduce the interaction of parties around and including the minor children."

The trial court left Mr. Alberswerth's sole legal custody of the children unchanged but modified the physical custody arrangement.³ During the school year Ms. Alberswerth was awarded parenting time with the children from 3:00 p.m. on Thursdays until 3:00 p.m. on Fridays and every other weekend. During the summer, Mr. and Ms. Alberswerth were awarded parenting time with the children in alternating two-week periods, with the parent not currently with custody having custody of the children over the interim weekend of the two-week period. The right of first refusal was changed to go into effect when the child or children are to be outside the custody of a parent for more than eight hours, as opposed to two hours as set forth in the original dissolution judgment.

The trial court also awarded the Guardian Ad Litem her fee of $5,175.00 and ordered Ms. Alberswerth to pay the full amount. Mr. Alberswerth was additionally awarded his attorney's fees in the amount of $7,837.00. The remainder of the Judgment remained unchanged or is of no interest in this matter.

Point I

In her first point on appeal, Ms. Alberswerth argues that the modification judgment does not contain the required detailed written findings of relevant statutory factors relied upon in modifying the custody arrangement.⁴ Ms. Alberswerth is correct. The trial court erred as a matter of law because it failed to make the required findings in compliance with section 452.375.6.

When reviewing a modification of child custody, the judgment of the trial court will be affirmed if it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Speer v. Colon, 155 S.W.3d 60, 61 (Mo. banc 2005). An appellate court defers to the trial court's superior ability to assess witness credibility and views all facts and reasonable inferences in a light most favorable to the trial court's decision. Dunkle v. Dunkle, 158 S.W.3d 823, 832-33 (Mo.App. E.D. 2005). A trial court has broad discretion with respect to custody issues and custody decisions are given greater deference than civil cases. Id. at 833. An appellate court presumes the trial court awarded custody in accordance with the children's best interest after a thorough review of the evidence and a trial court's judgment will be reversed only if the appellate court is firmly convinced that the welfare and best interests of the children require a different disposition. Id. Each case is reviewed in light of its own unique facts. Huber ex rel. Boothe v. Huber, 174 S.W.3d 712, 714 (Mo.App. W.D.2005).

"Determining custody and custodial arrangements of children in dissolution actions is one of the most important and most sensitive duties of the court." Buchanan v. Buchanan, 167 S.W.3d 698, 702 (Mo. banc 2005). Section 452.375⁵ governs child custody. Cerutti v. Cerutti, 169 S.W.3d 113, 115 (Mo.App. W.D.2005); § 452.375. When awarding child custody, the trial court must determine the best interests of the child. Cerutti, 169 S.W.3d at 115; § 452.375.2. To determine what custody arrangement would be in the child's best interest, the...