Brandow v. Brandow

• Decision Date: 30 May 2000
• Citation: 18 S.W.3d 584
• Parties: (Mo.App. W.D. 2000) Angela L. Brandow, Respondent, v. Brian L. Brandow, Appellant. WD57156 0
• Court: Missouri Court of Appeals

18 S.W.3d 584 (Mo.App. W.D. 2000)

Angela L. Brandow, Respondent, v. Brian L. Brandow, Appellant.

WD57156

Missouri Court of Appeals Western District

05/30/2000

Appeal From: Circuit Court of Randolph County, Hon. Channing D. Blaeuer

Counsel for Appellant: Jean E. Goldstein

Counsel for Respondent: Clifford A. Falzone

Opinion Summary: Brian L. Brandow appeals from the trial court's judgment and decree of dissolution of marriage relating to child support and custody.

Division III holds: The trial court erred in awarding Brandow's ex-wife retroactive child support from the date of separation because section 452.340.1 provides that retroactive child support may be ordered to the date of filing the petition, not the date of separation.

The trial court's parenting plan did not include all the terms required to be included under section 452.310.7. Therefore, the trial court's judgment is not in compliance with section 452.375.9.

The trial court's judgment is not in compliance with section 452.375.6 because it did not make a written finding detailing the specific relevant factors that made its custody arrangement in the best interest of the children, and it did not make a written finding detailing the specific relevant factors resulting in rejection of the parties' proposed custody arrangements.

The factors set forth in section 452.375.2 support the trial court's custody determination.

Victor C. Howard, Judge

Brian L. Brandow appeals from the trial court's judgment and decree of dissolution of marriage. Appellant raises two points on appeal. First, he contends that the trial court erred in awarding Respondent retroactive child support from the date of separation, because section 452.340 RSMo¹ provides that retroactive child support may be ordered to the date of filing the petition, not the date of separation. Second, he contends that the trial court erred in awarding Respondent physical custody of the children because its ruling was against the weight of the evidence and it misapplied the law as set out in section 452.375 in that it did not 1) adopt either party's parenting plan; 2) list the factors it used to determine custody after first considering joint legal and physical custody; and 3) enter a parenting plan as required by section 452.310.7.

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

Facts

Brian L. Brandow and Angela L. Brandow were married on September 2, 1989. They have two children: Andrews, born April 24, 1990, and Joseph, born November 20, 1991. The parties separated on or about April 12, 1998. Respondent filed her petition for dissolution of marriage on September 25, 1998. She sought, among other things, legal and physical custody of the children and child support retroactive to the date of separation.

Following trial, the trial court awarded the parties joint legal custody of the children, with primary physical custody to Respondent, subject to Appellant's right of reasonable visitation and temporary custody as provided in the order and judgment. The court ordered the following: 1) Appellant would have visitation with the children the first and third weekends of each month; 2) the parent who does not have visitation with or custody of the children on their birthdays will have four hours of visitation with the children on their birthdays; 3) Appellant will have custody of the children for five weeks in the summer, half of spring break vacation, alternate school holidays except Christmas, and one week at Christmas; and 4) the children will have the right to contact either parent by telephone at reasonable times and with reasonable frequency. The trial court further ordered Appellant to pay child support in the amount of $425 per month, retroactive to April 12, 1998. This appeal followed.

Point I

The first point on appeal is that the trial court erred in awarding Respondent retroactive child support from the date of separation, because section 452.340 provides that retroactive child support may be ordered to the date of filing the petition, not the date of separation.

The trial court has considerable discretion in making child support awards retroactive, and its judgment will not be reversed absent an abuse of its discretion. Homfeld v. Homfeld, 954 S.W.2d 617, 623 (Mo.App. W.D. 1997).

Section 452.340.1 provides, in relevant part, that "[i]n a proceeding for dissolution of marriage, legal separation or child support, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable or necessary for the support of the child, including an award retroactive to the date of filing the petition . . . ."

The parties separated on April 12, 1998. Respondent filed her dissolution petition on September 25, 1998. The trial court awarded Respondent child support retroactive to April 12, 1998, the date of separation. The plain language of section 452.340.1 provides that the court may grant retroactive child support to the date of filing the petition, not to the date of separation. Therefore, the trial court erred in awarding child support retroactive to April 12, 1998. Point I is granted.

Point II

The second point on appeal is that the trial court erred in awarding Respondent physical custody of the children because its ruling was against the weight of the evidence and it misapplied the law as set out in section 452.375 in that it did not 1) adopt either party's parenting plan; 2) list the factors it used to determine custody after first considering joint legal and physical custody; and 3) enter a parenting plan as required by section 452.310.7.

"We will sustain the court's judgment on custody unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law." Graves v. Graves, 967 S.W.2d 632, 640 (Mo.App. W.D. 1998). The trial court's determination in child custody proceedings is given greater deference than in any other type of case. Burkhart v. Burkhart, 876 S.W.2d 675, 678 (Mo.App. W.D. 1994). We will not disturb the trial court's judgment unless we are firmly convinced that the welfare of the child requires some other disposition, id., or unless it is clearly against the logic of the circumstances or is arbitrary or unreasonable. Graves, 967 S.W.2d at 640. We review the evidence in the light most favorable to the trial court's decision. Id.

Section 452.375.9 provides as follows:

Any judgment providing for custody shall include a specific written parenting plan setting forth the terms of such parenting plan arrangements specified in subsection 7 of section 452.310. Such plan may be a parenting plan submitted by the parties pursuant to section 452.310 or, in the absence thereof, a plan determined by the court, but in all cases, the custody plan approved and ordered by the court shall be in the court's discretion and shall be in the best interest of the child.

Section 452.310.7(1) sets forth the arrangements that must be covered in every parenting plan detailing custody, visitation, and residential time. Section 452.310.7(2) sets forth the specific factors which must be included in detailing how the decision-making responsibilities will be shared.

Appellant contends that the trial court's custody order does not comply with section 452.375.9 because it does not state which party is to have which holiday, and it does not include school holidays, Mother's Day or Father's Day, the places for transfer, the time for holidays, a plan for sharing transportation duties, a plan for procedures for notifying the other party of needed changes in the schedule as required by section 452.310.7(1), or anything about how the joint legal custody is to work, as required by section 452.310.7(2).

When construing a statute, we ascertain the intent of the legislature from the language used and give effect to that intent, if possible, and consider the words used in their plain and ordinary meaning. Butler v. Mitchell-Hugeback, Inc., 895 S.W.2d 15, 19 (Mo. banc 1995). According to the plain language of section 452.375.9, the trial court's judgment was required to include "a specific written parenting plan setting forth the terms of such parenting plan arrangements specified in subsection 7 of section 452.310." The trial court's judgment does not include all the terms set forth in section 452.310.7.² Therefore, the trial court's judgment is not in compliance with sections 452.375.9 and 452.310.7.³

Appellant next argues that the trial court did not comply with section 452.375.6. Section 452.375.6 provides as follows:

If the parties have not agreed to a custodial arrangement, or the court determines such arrangement is not in the best interest of the child, the court shall include a written finding in the judgment or order based on the public policy in subsection 4 of this section and each of the factors listed in subdivisions (1) to (8) of subsection 2 of this section detailing the specific relevant factors that made a particular arrangement in the best interest of the child. If a proposed custodial arrangement is rejected by the court, the court shall include a written finding in the judgment or order detailing the specific relevant factors resulting in the rejection of such arrangement.

According to the plain language of the statute, when the parties have not agreed to a custodial arrangement, the court is required to include in its judgment a written finding based on the public policy in section 452.375.4 and the factors listed in section 452.375.2(1) to (8), detailing the specific relevant factors that made the chosen arrangement in the best interest of the child. Furthermore, the statute requires that if a proposed custodial arrangement is rejected by the court, the court shall include a written finding in the judgment detailing the specific relevant factors resulting...