Aurich v. Aurich

• Decision Date: 31 July 2003
• Docket Number: No. WD 60572.,No. WD 60601.,WD 60572.,WD 60601.
• Citation: 110 S.W.3d 907
• Parties: Lawrence AURICH, Appellant-Respondent, v. MARIA E. AURICH, Respondent-Appellant.
• Court: Missouri Court of Appeals

110 S.W.3d 907

Lawrence AURICH, Appellant-Respondent, v. MARIA E. AURICH, Respondent-Appellant.

No. WD 60572.

No. WD 60601.

Missouri Court of Appeals, Western District.

July 31, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Leonard L. Meyer, Independence, MO, for appellant-respondent.

Anita I. Rodarte, Kansas City, MO, for respondent-appellant.

Before ELLIS, C.J., BRECKENRIDGE and SMITH, JJ.

PATRICIA BRECKENRIDGE, Judge.

Lawrence Aurich (Husband) appeals the trial court's judgment dissolving his marriage to Maria E. Aurich (Wife). On appeal, Husband alleges error in (1) the custody order; (2) the award of maintenance to Wife; (3) the award of attorney's fees to Wife; and (4) the calculation of child support. Wife cross-appeals, claiming that the trial court erred in limiting the duration of the maintenance award to sixty months. This court finds that the trial court did not err in making the custody order, awarding Wife maintenance, awarding Wife attorney's fees, or in calculating child support. The trial court did, however, err in limiting the duration of Wife's maintenance to sixty months. Accordingly, the judgment of the trial court is affirmed, in part, and reversed, in part, and remanded.

I. Factual and Procedural Background

Husband and Wife were married on June 7, 1986. They have two children. Wife also has another daughter, who was born before the marriage and was legally adopted by Husband. All three children are unemancipated.

Husband and Wife separated on December 23, 1997. Approximately one month later, Husband filed a petition for dissolution of marriage. In his petition, Husband asked, inter alia, to be granted sole legal and physical custody of all three of the parties' children. Subsequently, Wife filed a cross-petition for dissolution of marriage. In her petition, Wife also asked to be awarded sole legal and physical custody of the parties' children. In addition, Wife requested child support and maintenance.

A hearing was held before a commissioner on February 13 to 16, 2001, and March 9, 2001. On September 4, 2001, the commissioner entered his findings and recommendations for judgment of dissolution of marriage, which were adopted by the trial court as its judgment. In its judgment, the trial court awarded Husband and Wife joint legal and physical custody of the children, with Wife's residence designated as the children's residential address for mailing and educational purposes. Husband was awarded frequent and regular parenting time with the children, and he was ordered to pay child support in the amount of $1,230 per month. Concerning Wife's request for maintenance, the trial court ordered Husband to pay Wife $1,000 per month as maintenance for a period of sixty months and made this order modifiable. The trial court also ordered Husband to pay 83,000 of Wife's attorney's fees. Husband and Wife both appealed.

Before addressing the parties' points on appeal, this court will address Wife's motion to strike Husband's brief because his statement of facts does not comply with Rule 84.04, in that it is "conclusory, argumentative, omit[s] all references to any facts which would support the judgment or which contradict his characterization of the facts and, in other instances, fail[s] to contain any specific reference to the legal file or the transcript." This court agrees that Husband's statement of facts is deficient. Nevertheless, because the appeal involves child custody, this court will deny Wife's motion.

II. Standard of Review

"This court will review the judgment of the trial court under the standard of review applicable to any other court-tried case." Eckhoff v. Eckhoff, 71 S.W.3d 619, 622 (Mo.App.2002). The judgment will be affirmed unless it is not supported by, substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

III. Husband's Appeal

A. No Error in Custody Order

In his first point, Husband claims that the trial court erred in making its custody order. When reviewing custody awards, this court gives the trial court "greater deference in child custody matters than in other matters." Bedwell v. Bedwell, 51 S.W.3d 39, 41 (Mo.App.2001). As such, this court must "defer to the trial court's assessment of witness credibility[,] accept its resolution of conflicting evidence[,]" and "presume that it reviewed all of the evidence and decided the matter in the children's best interests." Riley v. Campbell, 89 S.W.3d 551, 552 (Mo.App. 2002). Therefore, this court "will not disturb the trial court's judgment absent a showing that the welfare of the children requires a different disposition or the judgment is manifestly erroneous." McDonald v. Burch, 91 S.W.3d 660, 663 (Mo. App.2002).

In this case, the trial court stated that it made its custody determination after considering the public policy of this state, as set forth in section 452.375.4, RSMo 2000,¹ and the specific factors listed in section 452.375.2.² Because it rejected both parties' parenting plans, the trial court included detailed findings regarding each factor in section 452.375.2. Based on its findings, the trial court concluded that it was in the children's best interests to award joint legal and physical custody to Husband and Wife. The trial court designated Wife's residence as the children's residence for mailing and educational purposes. The trial court also awarded Husband frequent and regular parenting time with the children.

It should be noted that although the trial court awarded Husband and Wife joint physical custody of the children, both parties refer to the custody order as awarding Wife "primary physical custody" or "primary custody" of the children. This court has recently clarified, however, that the only types of custody provided for by section 452.375.1(1) are "`joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof.'" Loumiet v. Loumiet, 103 S.W.3d 332, 336 (Mo.App.2003) (quoting section 452.375.1(1)). This court explained that "[i]n the context of joint physical custody, `primary physical custody' is sometimes used to describe the custodial award where, although both parents are awarded significant periods of custodial time, one receives substantially more time, and `primary physical custodian' is used to describe that parent." Id. at 338. Yet, this court went on to say that because of the confusion "this phraseology" can engender and "the stigma that some parents attach to one parent being designated the primary custodian[,]" "it would seem appropriate to abandon the `primary' nomenclature in custody cases and employ the joint and sole terminology[.]" Id. Thus, since there is no "primary physical custody" or "primary physical custodian," this court will assume that Husband is actually challenging the custody time awarded to both parents because, although both parties share joint physical custody, Wife was awarded more time with the children under the parenting plan than he.

In challenging the custody award, Husband first claims that the trial court erred in finding that there was no abuse by either party. In making a custody determination, the trial court must consider "[t]he mental and physical health of all individuals involved, including any history of abuse of any individuals involved." Section 452.375.2(6). Concerning this factor, the trial court found, "Neither party suffers from any significant mental or physical health condition that would impair his or her parenting of the children. The Court finds no abuse by either party."

Husband claims that the finding of no abuse is not supported by substantial evidence, is against the weight of the evidence, and constitutes a misapplication of the law and an abuse of discretion. Husband alleges that the evidence showed that Wife engaged in "a pattern of domestic violence," which included "smash[ing] dishes" in the presence of the children, "yell[ing], scream[ing] and curs[ing]" in the presence of the children, "smash[ing] the car into the garage wall, damaging drywall and a panel in the family room," "chok[ing]" Husband, "[striking] [Husband] in the face with the television remote control," and making "at least five (5) unfounded claims of sexual abuse." Thus, Husband contends that "[t]he court should have determined that domestic violence had occurred, because it was undisputed that it had occurred[.]"

Contrary to Husband's argument, the record reflects that the evidence of an alleged "pattern of domestic violence" was, in fact, disputed. Indeed, Wife testified regarding each instance of "domestic violence" raised by Husband and characterized the incidents differently than Husband. For example, while Husband testified that Wife "smashed" the car into the garage, Wife explained that she accidentally, rather than intentionally, hit the garage wall with her car. In addition, while Husband said that Wife "choked him" when he tried to wake up their daughter for school, Wife stated that Husband was trying to pull their daughter out of bed by her arm, so she "grabbed him by the collar and [she] just tried to shove him away from [the daughter], so that he can leave her alone." As for the remote control incident, Husband stated that when he turned off the television so he could talk to Wife, he "was met by her flailing arms" and she "struck [him] in the mouth" with the remote control, splitting his lip. Wife, on the other hand, testified that while she and Husband were watching television, she asked him if she could change the channel, and he handed her the remote control "in a very rough manner." She further testified that she then changed her mind about changing the channel, so she "tossed [the remote control] back to him," and, while it hit him in the lip, she did not intentionally try to hurt him. Wife also testified that although on one occasion she had broken two...