Bauer v. Bauer

Decision Date20 February 2001
Docket NumberNo. WD 57671.,WD 57671.
Citation38 S.W.3d 449
PartiesMichael D. BAUER, Appellant, v. Diana Lynn BAUER, Respondent.
CourtMissouri Court of Appeals

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Marilyn M. Shapiro, Russell L. Powell, Kansas City, for Appellant.

Elvin S. Douglas, Jr., Meryl L. Lange, Raymore, for Respondent.

Before SPINDEN, C.J., and EDWIN H. SMITH and NEWTON, JJ.

EDWIN H. SMITH, Judge.

Michael D. Bauer appeals the judgment of the Circuit Court of Cass County dissolving his marriage to the respondent, Diana Lynn Bauer, with respect to the court's awards of child custody, attorney's fees, and property.

The appellant raises four points on appeal. In Point I, he claims in five subpoints that the trial court erred in awarding the respondent primary physical custody of three of the parties' four minor children because it was "against the weight of the evidence, not supported by substantial credible evidence, contrary to law, and an abuse of discretion." In Point II, he claims that the trial court erred in awarding the respondent $10,000 of the $32,000 in attorney's fees she incurred because, in doing so, it failed to consider, as required, the respondent's financial resources to pay her own attorney's fees, and her conduct during the marriage and the dissolution proceeding. In Point III, he claims that the trial court erred in awarding him his non-marital property, as required by § 452.330,1 because in doing so it misapplied the law found in that section, and its award was against the weight of the evidence. In Point IV, he claims that the trial court erred in awarding him his marital property, as required by § 452.330, because in doing so it misapplied the law found in that section, and its award was against the weight of the evidence.

We affirm in part, and reverse and remand in part.

Facts

The parties were married on May 1, 1980. There were four children born during the marriage: Stacey Anne Bauer, born October 7, 1980; Rachel Renae Bauer, born September 6, 1985; Michael Len Bauer, born May 28, 1992; and Bradley Michael Bauer, born August 24, 1995.

Prior to the marriage, both parties were employed. In 1977, the parties opened a joint savings account, with each party contributing to it from his or her earnings. During the marriage, the appellant continued to work, putting in long hours at the family construction and property management business. The respondent worked outside of the home on a limited basis, but mainly acted as a homemaker and caregiver to the children. She sometimes helped the appellant in the business by running errands, buying materials and supplies, helping in the office, and keeping the books. The parties eventually amassed property with a net value of over $5,000,000.

Problems beset their marriage from the beginning. The appellant worked long hours, and the respondent used drugs periodically, mainly methamphetamines. Eventually, on August 5, 1997, the appellant sought and received an ex parte order of protection against the respondent, which excluded her from the marital residence. During this time, the children remained in the custody of the appellant, who only allowed the respondent to see them twice between August 5 and December 27, 1997, when the court entered an order granting her supervised visitation.

The appellant filed his petition for dissolution of marriage on August 7, 1997, requesting, inter alia, that the marriage be dissolved, that he be awarded sole custody of the children, that the respondent be awarded reasonable visitation, that the parties' property be divided equitably, and that each party's non-marital property be set aside to him or her. The respondent filed her answer and counter-petition on August 20, 1997, requesting, inter alia, sole custody of the children, with the appellant to receive reasonable visitation, an award of child support, an award of maintenance, an equitable division of the parties' marital property and debts, and an award of attorney's fees.

Near the end of August 1997, the respondent began cohabitating with David McKnight. McKnight had previously been convicted of receiving stolen property, for which he had served three years in prison. Approximately one week before the trial began, McKnight moved out of the respondent's home, as the respondent felt that it was "in the children's best interest that they live separately."

On August 22, 1997, the respondent filed a motion for temporary custody, child support, maintenance, and attorney's fees, which was heard on October 16, 1997. The court denied the respondent's motion as to temporary custody and instead awarded temporary custody of the children to the appellant. The court, however, awarded the respondent temporary maintenance of $2,500 per month and temporary attorney's fees of $2,375.

On November 18, 1997, the respondent filed a second motion for temporary custody or, in the alternative, for temporary visitation. On December 15, she filed a motion for additional temporary attorney's fees and suit money. The appellant filed a motion to compel the respondent to submit to a physical examination on December 22. The motions were consolidated for hearing on December 23. The respondent's motion for temporary custody was denied, but she was granted temporary supervised visitation with the children. In addition, the court ordered the respondent to submit to drug testing by providing a hair sample.

On July 1, 1998, the parties filed a joint motion for the appointment of a guardian ad litem (GAL), which was granted, with Sharon Westhoff being appointed. The GAL requested a second drug test of the respondent, which was ordered. The test was conducted on August 12, 1998.

The case was tried before the Honorable Thomas M. Campbell who heard evidence on September 8-11, and on October 6, 1998. Both parties presented substantial evidence concerning the misconduct of the other spouse during the course of the marriage. In this regard, the appellant presented extensive evidence concerning the respondent's drug use. Dr. Harold Brown, a psychologist specializing in substance abuse, conducted various tests on the respondent. He testified that the results of the tests indicated that the respondent had most likely not been using addictive drugs in the previous three to four months and may have been drug-free for over a year. Furthermore, the test results indicated that the respondent did not have a drug dependence profile and showed a low pathological risk of a need for drug treatment. However, he did state he felt that she was minimizing her previous drug use and that people who use methamphetamines, such as the respondent, are at a high risk of relapse due to the highly addictive nature of the drug. Dr. Michael Robertson, the forensic toxicologist who conducted the analysis of the respondent's hair specimen, testified that the test indicated multiple uses of methamphetamines from two and one-half to five months prior to the date the sample was taken, which was in December 1997.

Preston Washington, the clinical director for the National Council on Alcoholism and Drug Dependency in Kansas City, Missouri, testified, based on his interviews of the respondent and the results of two tests which he administered to her, that she did not require drug intervention or enrollment in a substance abuse program. He saw no signs or symptoms of drug problems during the past year. Further, he saw no evidence that the respondent was attempting to skew the test results or that she was less than honest about the level of her past drug use.

The court interviewed all four of the parties' children. The boys were interviewed together, but the girls were interviewed separately. Rachel stated that she wanted to live with her mother. Stacey stated that she wanted to live with her father. She also testified that, in her opinion, the boys should live with their father and Rachel with their mother.

The GAL testified that, based upon her investigation, it was her opinion that both parties had problems. As to the respondent, the GAL felt that she minimized her drug use. As to the appellant, the GAL felt that he refused to admit that he had any shortcomings and that he did not effectively parent the children nearly as much as he thought he did. Her recommendation was that the parties receive joint legal and physical custody of the children.

Having taken the case under advisement, Judge Campbell declared a mistrial on November 9, 1998, and recused himself from the case. The matter was then assigned to the Honorable Mary Ellen Young on November 17, 1998. The appellant filed an application for a change of judge on December 8, 1998, which was granted. The case was then assigned to the Honorable Stephen W. Angle on December 14, 1998. On January 5, 1999, the respondent filed an application for a change of judge, which was sustained. Accordingly, on January 12, 1999, the matter was assigned to the Honorable Joseph P. Dandurand, who obtained a stipulation from the parties that he could decide the case based solely upon the record in the case.

On July 23, 1999, the court entered its judgment dissolving the marriage. In its judgment, the court also: (1) awarded joint legal custody of all four children to both parties, with primary physical custody of Stacey Bauer to the appellant and primary physical custody of Rachel, Mikey, and Bradley Bauer to the respondent, with scheduled visitation to the appellant; (2) ordered the appellant to pay the respondent $1,200 per month in child support; (3) divided the marital and non-marital property; and (4) awarded the respondent $10,000 in attorney's fees. On August 16, 1999, the appellant filed a motion to amend the judgment, which was denied on August 24, 1999.

On September 22, 1999, the appellant was granted leave of court to file his appeal out of time. His notice of appeal was filed on October 1, 1999.

Standard of Review

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