Bowers v. Bowers

Decision Date30 May 2017
Docket NumberED103176
PartiesJASON BOWERS, Respondent, v. JESSICA BOWERS, Appellant.
CourtMissouri Court of Appeals

JASON BOWERS, Respondent,


Missouri Court of Appeals Eastern District DIVISION ONE

May 30, 2017

Appeal from the Circuit Court of the City of St. Louis

Honorable Elizabeth B. Hogan


Jessica Bowers ("Jessica") appeals from the judgment of the trial court dissolving her marriage to Jason Bowers ("Jason") and granting Jason third-party sole legal and physical custody of minor child J.B. (J.B.), pursuant to Section 452.375.5(5).1 We affirm.


I. Factual Background

In October 2007, when Jessica and Jason began their romantic relationship, it is undisputed that Jessica was pregnant with a child conceived with her former paramour, Stephen

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Nugent ("Stephen").2 During Jessica's pregnancy, she and Jason jointly concluded that Jason should be the father of the child, rather than Stephen. Jessica was concerned about Stephen's ability to take responsibility and be a parent due to Stephen's propensity to eschew his parental responsibilities towards his other children that he has sired with other women. Stephen acquiesced to Jessica's request that he remain uninvolved in the life of J.B. and voluntarily permitted Jason to act as J.B.'s father.

Jason attended prenatal medical appointments with Jessica and was present in the delivery room when Jessica gave birth to a girl, J.B., on April 28, 2008. Four days after the birth of J.B., Jessica and Jason, now cohabitating, executed a Missouri Affidavit Acknowledging Paternity ("Acknowledgment"), which resulted in the State of Missouri issuing a birth certificate naming Jason as the "father" of J.B.3

Approximately two years after J.B.'s birth, Jason and Jessica wed on April 3, 2010. Jessica, Jason, and J.B. resided together as a family from prior to J.B.'s birth until the parties separated in August 2012. For the entirety of J.B.'s life, Jason fulfilled his role as her father: he taught J.B. how to walk and ride her bike; he attended her medical appointments; he accompanied J.B. to church services; he danced, sang, and cooked with J.B.; and he provided for J.B.'s financial support. At no time during the first five years of J.B.'s life did she have any interaction or contact with Stephen, nor did Stephen provide any financial support for J.B.

II. Procedural Background

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On May 10, 2013, Jason filed a "Petition for Dissolution of Marriage, for Determination of Physical and Legal Custody and for Order of Child Support" (hereinafter, "Petition for Dissolution"). Jason alleged J.B. was "born of the marriage," and prayed the trial court award joint legal and physical custody of J.B. to Jason and Jessica, pursuant to the authority of the Missouri Uniform Parentage Act ("MoUPA"), Section 210.817, et seq.

Thereafter, Jessica filed two pleadings: (1) her Answer to Jason's Petition for Dissolution, denying the allegation that J.B. was "born of the marriage;" and (2) her "Cross Petition for Dissolution of Marriage," claiming J.B. to be born prior to the marriage, but designating Jason as the "legal father" based upon the executed Acknowledgement. Jessica requested, inter alia, the trial court award her sole legal and physical custody of J.B. with rights of visitation to Jason, under the authority of Chapter 452, the Dissolution of Marriage Act.

In January 2014, Stephen made his first appearance in J.B.'s life, vis-à-vis the dissolution proceedings, by filing a "Motion to Intervene and Third-party Respondent's Petition for Determination of Father-Child Relationship and Judgment and Order of Custody" (hereinafter, "Motion to Intervene"). Stephen sought, inter alia, to establish his own paternity and an award of joint legal and physical custody of J.B., pursuant to the MoUPA. Over Jason's objections, the trial court granted Stephen's Motion to Intervene.

Genetic testing revealed there was a 99.9% probability Stephen was the biological father of J.B. Consequently, Jessica filed a motion to dismiss Jason's requests for J.B.'s custody and support. Jason filed an "Alternative Motion for Third-Party Custody pursuant to [Section] 452.375.5(5)," seeking sole legal and physical custody of J.B.

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III. Judgment of the Trial Court

Following a bench trial on the respective petitions and motions of Jessica, Jason, and Stephen regarding dissolution, paternity, custody, and visitation, and during which all interested parties were present, the trial court entered its Findings of Fact, Conclusions of Law, and Judgment (hereinafter, "Judgment"). The trial court found Jessica and Stephen credible solely in their admissions that they repeatedly violated court orders during the pendency of this litigation. Stephen was found unfit, unsuitable, and unable to be the custodian of J.B. Similarly, Jessica's conduct, in contravention of numerous court orders, demonstrated her shortcomings as a parent. Specifically, the trial court found Jessica was unlikely to obey court orders requiring J.B. continue frequent and meaningful contact with Jason. During the course of litigation, Jessica attempted, on numerous occasions, to sever J.B.'s ties with Jason, without regard for the detrimental consequences of her actions upon her child.

The trial court found Jessica and Jason were unable to co-parent, thus rendering joint physical and legal custody impossible. The trial court awarded sole legal custody and physical custody of J.B. to Jason as a third-party custodian, pursuant to Section 452.375, with rights of visitation to Jessica. Stephen was not awarded any rights of custody or visitation. However, the trial court ordered J.B.'s birth certificate be amended to reflect Stephen, not Jason, as her father. Jessica now appeals.


On appeal, Jessica assigns two points of error. In her first point, Jessica maintains the trial court erred in awarding sole legal and physical custody to Jason as a third-party custodian, because the finding of the Judgment that Jessica was "unfit, unsuitable, or unable to be a custodian" was

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against the weight of the evidence and was not supported by substantial evidence. In her second point, Jessica contends the trial court erred as a matter of law in designating Jason as a third-party custodian because Jason was already a party in the dissolution pursuant to Section 452.375. No cross-appeals were filed by Jason or Stephen. Fully cognizant of the extraordinarily complicated set of circumstances in this case, we stress that throughout this opinion we have only addressed those issues presented to this Court on appeal. Although discussed at length in the dissenting opinion, we are not addressing the Mo. Acknowledgment of Paternity Statute found in Section 210.823, the paternity presumptions in Section 210.822.2 concerning "weightier considerations of policy and logic", nor equitable parenting, since these issues were not raised in Jessica's appeal.


In a bench tried case, the judgment of the trial court will be affirmed unless there exists no substantial evidence to support it, it is against the weight of the evidence, or it erroneously applies or declares the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); see also Richmond v. Richmond, 164 S.W.3d 176, 178 (Mo. App. E.D. 2005). However, we review de novo, any points which turn upon the interpretation of statutes and Missouri Supreme Court Rules and the application of the same to specific facts. Belden v. Belden, 389 S.W.3d 717, 722 (Mo. App. S.D. 2012); see also Muhm v. Myers, 400 S.W.3d 846, 849 (Mo. App. E.D. 2013) (de novo review applicable to the interpretation of Missouri Supreme Court Rules).


At the outset, we address the procedural issues in this case. In 2004, the Supreme Court of Missouri adopted an Operating Rule 4.05.3 which states: "Dissolutions and paternity actions shall be filed separately. A separate case number shall be assigned for each dissolution and each

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paternity action filed and shall be related in the automated case management system for scheduling and other processing." However, Section 210.829.1 of the MoUPA grants courts the authority to join a course of action under the MoUPA "by separate document with an action for dissolution of marriage, annulment, separate maintenance, support, custody, or visitation ..." While seemingly contradictory, we do not find Operating Rule 4.05.3 and Section 210.829.1 to be in conflict. Operating Rule states these actions should be filed separately; however, nowhere does it limit the joining of any related custody or visitation matters for trial.

In the matter before us, the dissolution, paternity action, and Section 452.375.5 petition all regarded the custody and visitation of J.B. and were tried together. As the trial court found, the resolution of these matters together promoted judicial efficiency. Although ideally separate files should have been maintained, because this issue and the joint nature of the trial were not raised as points in this appeal, we need not address this further.


In her first point on appeal, Jessica argues the trial court erred in finding there was substantial evidence to support that she was unfit or unsuitable to have custody of J.B. We disagree.

We view the evidence and inferences therefrom in the light most favorable to the judgment, and we disregard all contrary evidence and inferences. Kropf v. Jones, 489 S.W.3d 830, 834 (Mo. App. E.D. 2015) (citing Potts v. Potts, 303 S.W.3d 177, 184 (Mo. App. W.D. 2010). "Judging credibility and assigning weight to evidence and testimony are matters for the trial court, which is free to believe none, part, or all of the testimony of any witnesses." Id. Consequently, we defer to the trial court's credibility determinations. Id.

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Here, in its Judgment, the trial court found Jessica was unfit to have sole legal and physical custody of J.B. The trial court also determined that Stephen was the biological father of J.B. but was unfit to have custody of J.B. Stephen did not appeal...

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