Bauer v. Bauer, WD 60338.

• Decision Date: 25 June 2002
• Docket Number: No. WD 60338.,WD 60338.
• Citation: 97 S.W.3d 515
• Parties: Michael D. BAUER, Appellant, v. Diana L. BAUER, Respondent.
• Court: Missouri Court of Appeals

97 S.W.3d 515

Michael D. BAUER, Appellant, v. Diana L. BAUER, Respondent.

No. WD 60338.

Missouri Court of Appeals, Western District.

June 25, 2002.

COPYRIGHT MATERIAL OMITTED

Marilyn M. Shapiro, Kansas City, for Appellant.

Meryl L. Lange, Raymore, for Respondent.

Before PAUL M. SPINDEN, C.J., P.J., HAROLD L. LOWENSTEIN and ROBERT G. ULRICH, JJ.

ROBERT G. ULRICH, Judge.

Michael Bauer (Father) appeals from the amended judgment of dissolution entered by the trial court dissolving his marriage to Diana Bauer (Mother). This case returns to this court after it was remanded to the trial court for written findings regarding child custody as required by section 452.375.6, RSMo 2000. Bauer v. Bauer, 38 S.W.3d 449, 456 (Mo.App. W.D. 2001). In his sole point on appeal, Father claims that the trial court erred in awarding Mother primary physical custody of three of the parties' four minor children. The judgment of the trial court is affirmed.

I. Factual and Procedural History

The parties were married on May 1, 1980. Four children were born of the marriage: Stacey, born October 7, 1980; Rachel, born September 6, 1985; Mikey, born May 28, 1992; and Bradley, born August 24, 1995. During the marriage, Father was self-employed in construction and property management. Although Mother occasionally worked outside of the home, she primarily acted as homemaker and caregiver of the children throughout the marriage.

From the beginning, the parties experienced problems in their marriage. Father often worked long hours, and Mother used illegal drugs periodically, mainly methamphetamines. On August 5, 1997, Father applied for and received an ex parte order of protection against Mother, which excluded her from the marital home. During this time, the children remained in the custody of Father. Father only allowed Mother to see the children twice from August 5, 1997, to December 27, 1997, when the trial court entered an order granting Mother supervised visitation.

Father filed his petition for dissolution of marriage on August 7, 1997, seeking, inter alia, dissolution of the marriage, sole custody of the children, and reasonable visitation of the children by Mother. Mother filed her answer and counter-petition on August 20, 1997, seeking, inter alia, sole custody of the children, child support from Father, and reasonable visitation of the children by Father. On July 1, 1998, a guardian ad litem (GAL) was appointed upon the parties' joint motion.

The case was originally heard by the Honorable Thomas M. Campbell in September and October, 1998. Each party presented substantial evidence concerning the misconduct of the other spouse during the marriage. The trial court also interviewed the parties' four children. At the conclusion of all of the evidence, the GAL recommended to the trial court that the parties receive joint legal and physical custody of the children. The GAL specifically recommended that Father receive physical custody of the children during the week and Mother receive physical custody on the weekends during the school year with the arrangement reversed during the summer non-school months.

On November 9, 1998, Judge Campbell declared a mistrial and recused himself from the case. After two changes of judge, the case was eventually assigned to the Honorable Joseph P. Dandurand. The parties stipulated that Judge Dandurand could decide the case solely upon the trial record in the case. After reviewing the record, the trial court entered its order on July 26, 1999, awarding the parties, inter alit, joint legal custody of all four children, with primary physical custody of Stacey to Father and primary physical custody of Rachel, Mikey, and Bradley to Mother with scheduled visitation to Father. During the hearing on Father's motion to amend the judgment, the GAL told the trial court that although she had previously recommended that Father have physical custody of the children during the school year, she wholeheartedly agreed with the trial court's custody determination. Father appealed, and the judgment regarding child custody was remanded to the trial court for written findings as required by section 452.375.6, RSMo 2000. Bauer, 38 S.W.3d at 456. The trial court then entered its amended judgment on June 26, 2001, with the same custody determination as its prior judgment provided and the required written findings. This appeal by Father followed.

In his sole point on appeal, Father claims that the trial court erred in awarding Mother primary physical custody of three of the parties' four minor children because the award was against the weight of the evidence, not supported by substantial evidence, contrary to law, and an abuse of discretion. Specifically, Father claims that the court did not give sufficient weight to Mother's drug use, to Mother's cohabitation with a convicted felon who had been incarcerated for his crime, to the recommendation of the guardian ad litem, and to the environment that he would have provided for the minor children.

II. Standard of Review

An appellate court will affirm the custody determination of the trial court unless there is no substantial evidence to support it, 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); Newsom v. Newsom, 976 S.W.2d 33, 35 (Mo.App. W.D. 1998). An appellate court will not set aside a judgment as "against the weight of the evidence" unless it firmly believes that the judgment is wrong, or if the judgment is clearly against the logic of the circumstances or is arbitrary or unreasonable. Miers v. Miers, 53 S.W.3d 592, 595 (Mo. App. W.D.2001). An appellate court will not disturb the trial court's custody determination unless it is firmly convinced that the welfare of the child requires some other disposition. Id. While an appellate court normally defers to the trial court's credibility determinations, Newsom, 976 S.W.2d at 35-36, such is not the case here where the trial court did not hear the evidence or observe the witnesses but ruled the case strictly upon the transcript, which is now before this court. Dir. of Revenue, State of Mo. v. Christman, 968 S.W.2d 737, 739 (Mo.App. E.D.1998); Ashbaugh v. Sims, 483 S.W.2d 80, 83 (Mo.App. 1972).

III. Applicable Statutory and Case Law

Section 452.375, RSMo 2000, governs child custody. It requires the trial court to "determine custody in accordance with the best interests of the child." § 452.375.2, RSMo 2000. In doing so, the trial court shall consider all relevant factors including:

(1) The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties;

(2) The needs of the child for frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their function as mother and father for the needs of the child;

(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests;

(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;

(5) The child's adjustment to the child's home, school, and community;

(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and the parent or other family or household member who is the victim of domestic violence from any further harm;

(7) The intention of either parent to relocate the principal residence of the child; and

(8) The wishes of a child to the child's custodian.

§ 452.375.2, RSMo 2000.

In addition to the factors in section 452.375.2, RSMo 2000, the trial court may properly consider the character and morals of a parent in determining the custody of a child. Stangeland v. Stangeland, 33 S.W.3d 696, 707 (Mo.App. W.D.2000); Newsom, 976 S.W.2d at 39. Consideration must be given to what conduct a parent may inspire by example or what conduct of a child a parent may foster by condonation. Stangeland, 33 S.W.3d at 707. Thus, consideration of a parent's behavior is not strictly limited to behavior that has, in fact, adversely affected the child. Id. "A good environment and a stable home is generally considered as the most important single consideration in custody cases." Newsom, 976 S.W.2d at 39 (quoting R. v. R., 685 S.W.2d 598, 602 (Mo.App. S.D. 1985)).

IV. Analysis

A. The trial court attributed sufficient weight to Mother's prior use of illegal drugs.

Father first argues on appeal that the trial court did not give sufficient weight to the drug use of Mother and that its decision to award primary physical custody of Rachel, Mikey, and Bradley to Mother was against the weight of the evidence in that Mother's character is deficient and will negatively affect the children if they reside with her. Father presented extensive evidence concerning past drug use by Mother. He testified that he believes Mother used methamphetamines or speed as early as 1982 and continued their use until 1985. Father believes that Mother began using methamphetamines again in 1986, partly to lose weight after the birth of Rachel. He further believes that Mother continued to use illegal drugs until 1992 because of her actions that included rapid speech and the practice of staying up late at night. Father testified that he found drugs in the house and a glass pipe in Mother's purse in the summer of 1997. Father also presented the testimony of Teresa Todd, Kenny Paul, Terri Paul, and Andy Parker, who all testified that they had observed Mother consume or...