Besancenez v. Rogers

• Decision Date: 18 March 2003
• Docket Number: No. ED 80980.,ED 80980.
• Citation: 100 S.W.3d 118
• Parties: Thomas J. BESANCENEZ, and Sommer Nichole Singletary, By and through her Next Friend Thomas J. Besancenez, Appellants, v. Debra Lynn ROGERS, f/k/a Debra Singletary, Respondent.
• Court: Missouri Court of Appeals

100 S.W.3d 118

Thomas J. BESANCENEZ, and Sommer Nichole Singletary, By and through her Next Friend Thomas J. Besancenez, Appellants, v. Debra Lynn ROGERS, f/k/a Debra Singletary, Respondent.

No. ED 80980.

Missouri Court of Appeals, Eastern District, Division Three.

March 18, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michael P. Cohan, St. Louis, MO, for appellant.

Lawrence G. Gillespie, Clayton, MO, for respondents.

MARY R. RUSSELL, Presiding Judge.

Thomas J. Besancenez ("Father") appeals a judgment granting Debra Lynn Rogers f/k/a Debra Singletary ("Mother") primary physical custody of Sommer Nichole Singletary ("Daughter") and awarding Mother attorney's fees and reimbursement for necessaries purchased for Daughter. We find no error and affirm.

Father filed a petition for determination of paternity and an order of child custody and child support. Father requested that he and Mother have joint legal custody, that he obtain primary physical custody, and that Mother receive visitation rights. In the event Father received primary physical custody of Daughter, he petitioned for child support from Mother.

Father filed his petition on January 18, 2000, when Daughter was 12 years old. A guardian ad litem ("GAL") was appointed to represent Daughter's interest in the proceedings, which included six days of testimony. The trial court rendered its judgment on November 20, 2001. Pursuant to the trial court's judgment, Mother has primary physical custody, Father has visitation rights, and they share joint legal custody of Daughter.

The trial court found that the sum of Daughter's necessary expenditures paid for by Mother from January 1995 to July 28, 2000, was $20,426.70. Father received credit for $4,367.14 he paid for her necessaries during that time. The trial court ordered Father to reimburse Mother for the remaining $16,059.56. Father was ordered to pay $4,613.00 as increased child support in addition to what he paid during the pendency of the suit. The judgment further ordered Father to pay $427.00 per month to Mother for child support, effective on the judgment date. The trial court awarded Mother $12,000.00 for attorney's fees she incurred in Father's paternity, child custody, and child support proceeding. Father now appeals.¹

Father alleges four errors on appeal. In his first point, he argues that the trial court improperly considered the gender of Mother, Father, and Daughter in awarding primary physical custody to Mother, which is a misapplication of section 452.375.8 RSMo 2000.² Father contends in his second point that the trial court failed to issue eight specific factual findings as required by section 452.375, and the evidence demonstrated that the "application of those factors, on balance, as well as other relevant evidence," favored granting Father primary physical custody of Daughter. In his third point, Father alleges that the trial court misapplied the law and abused its discretion in its award of attorney's fees because it failed to consider the financial situation of both parents and because the evidence demonstrated that Father had insufficient resources to pay the award. Father argues in his fourth point that the trial court misapplied the law and abused its discretion in awarding necessaries to Mother because the award was inconsistent, unsupported by the evidence, and against the weight of the evidence.

The same standard of review applies to Father's first, second, and fourth points on appeal. We will affirm the trial court's custody determination 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. Edmison ex rel. Edmison v. Clarke, 988 S.W.2d 604, 607 (Mo.App.1999); Shadwick v. Byrd, 867 S.W.2d 231, 235 (Mo.App. 1993). The trial court possesses broad discretion in child custody matters, and its decision will only be reversed if we are firmly convinced the welfare and best interests of the child require otherwise. Edmison, 988 S.W.2d at 607; Shadwick, 867 S.W.2d at 235.

Do Trial Judge's Remarks Indicate an Improper Preference?

Father alleges in his first point that remarks made by the trial judge to Daughter following closing arguments revealed that the trial court improperly conferred a preference upon Mother's receiving custody strictly because of her gender. Father argues that section 452.375.8 specifically prohibits favoring one parent over another based solely on sex and that custody determinations should be made entirely on the best interests of the child pursuant to section 452.375.2.

The statements Father finds objectionable were made by the trial court following Mother's and Father's closing arguments. The transcript indicates that Daughter was excluded from the trial aside from her own testimony and the closing arguments and that, at the close of testimony each day, the trial court warned all those involved not to discuss the case with Daughter or in her presence. After the closing arguments, the trial judge called Daughter to stand before him so he could speak directly to her. The judge then made the following remarks, among others, to Daughter:

Well, up until that time, up until the time that the Court, the judge, me in this case, makes a decision, one thing is clear under the law and that is — one person, one person has the authority over the child. One person cares for the child. One person makes decisions for the child. One person does the parenting for the child and that's the mother. That's the mom.... Until I enter an Order in this case your mom has all the authority over you; has always had all the authority over you. And people who have tried to exercise authority over you, without her consent, don't have any business doing it.

People who have derided her in your presence, who have questioned her living circumstances, who have been critical of her way of life, don't have any power to do anything about it and shouldn't even try. They just make it more confused and more difficult for you.... Anyone, whether it is either of your parents or anyone around who talks negatively about your parents, in your presence, is not doing you a favor. They are being insensitive. They are selfish. And they're really going to hurt you in the long run.

. . . .

Do[] she and your father have the right to control what you do? Yes. Because you're the child and they are the parents. Those titles apply.

. . . .

People say in these situations, where there is a lot of stress with parents or between parents, that the children manipulate the parents. They try to get the best out of each parent to their own advantage. I'm sure you never thought of that. Have you? You know. Have you done it?

This record is replete with examples of it and you probably don't see it that way.

. . . .

Now, there are defined roles for people. Before there [weren't]. Now, people who try to interfere with the authority of your mother or your father, as I said before, are undermining your interest. They are making life more difficult for you.

Father relies on Russell v. Russell, 782 S.W.2d 406 (Mo.App.1989), for his argument that the remarks made by the trial court constituted an improper award of custody based solely on the application of an improper preference to Mother based entirely on her gender. We concur with Father's contention that section 452.375.8 indubitably prohibits any presumption in favor of either parent based on gender: "As between the parents of a child, no preference may be given to either parent in the awarding of custody because of that parent's age, sex, or financial status, nor because of the age or sex of the child." Our agreement with Father, however, is limited to his statement of the applicable law, and we find Russell wholly distinguishable from the instant case.

In Russell, "[t]he trial judge expressed grave misgivings about the mother's conduct but expressly based his custody award upon the need for the girls to be under the care and guidance of a mother." Russell, 782 S.W.2d at 407. The trial court specifically warned the mother that the girls would be removed from her custody if she failed to alter her ways considerably. Id.

In reversing the trial court's decision and granting sole custody of the two girls to the father, the appellate court found that the mother's behavior "demonstrated a conspicuous lack of judgment" and could be "described in a word as irresponsible." Id. It stated that the mother's discipline of her daughters was erratic; she had been sexually promiscuous before her separation from the father and throughout the dissolution; she failed to care adequately for her daughters' health; and her boyfriend was violent and scared the girls, who were six and eight years old when the appellate decision was written. Id.

In contrast to the mother's "rather bizarre behavior," the appellate court found that the father was well qualified to have custody of his daughters. Id. It noted that the few negative snippets of evidence that cut against his ability to provide a healthy home for the girls were "insignificant when compared to the mother's pattern of conduct." Id. Unlike the instant case, the trial court's custody award in Russell disregarded the girls' best interests and flagrantly contradicted the statutory prohibition against favoring one parent over the other solely because of the sex of either that parent or the child. See id.

Father argues that the trial court's remarks reveal its misapplication of the law and that it looked unfavorably upon him for doing things that section 452.375.2 expressly states are in Daughter's best interests. Father claims the trial court's statements necessarily evidence its "belief that a father, prior to entry of a paternity judgment, should not attempt to be a parent," which results "in an automatic custodial preference to the mother" in violation of 452.375.8. He asserts that an award is not protected from reversal when...