Brown v. Shannahan

• Decision Date: 10 August 2004
• Docket Number: No. ED 83007.,ED 83007.
• Citation: 141 S.W.3d 77
• Parties: Brian David BROWN, Appellant, v. Nicole SHANNAHAN, Respondent/Cross Appellant.
• Court: Missouri Court of Appeals

141 S.W.3d 77

Brian David BROWN, Appellant, v. Nicole SHANNAHAN, Respondent/Cross Appellant.

No. ED 83007.

Missouri Court of Appeals, Eastern District, Division Four.

August 10, 2004.

Appeal from the Circuit Court, St. Louis County, Mary B. Schroeder, J M. Zane Yates, Clayton, MO, for appellant.

Robert N. Hamilton, Jennifer R. Piper, St. Louis, MO, for respondent.

LAWRENCE G. CRAHAN, Judge.

Father and Mother cross-appeal the judgment declaring Father to be the father of the minor child Cole Shannahan, ("Son"), awarding joint legal custody, awarding Mother primary physical custody with specified visitation by Father, awarding child support to Mother, denying Mother's claim for necessaries and birthing expenses and changing the child's surname to Father's. We affirm in part and reverse and remand in part.

Mother and Father had a ten-month relationship that resulted in the birth of Son. Mother moved into Father's residence when she learned she was pregnant and remained with him until Son was three months old. During that time Mother worked as a special education teacher and Father worked as a mortgage broker. Mother testified that the two had an agreement that Father would pay the shelter costs and necessaries for Mother during her pregnancy. Son was born July 25, 2001. There is conflicting testimony as to why Father was not at the birth. Both parents testified that they separated in August for about a week. After the separation, Mother moved back into Father's residence and the couple attended some counseling sessions to try to maintain the relationship. Father began a paternity action in September but Mother was never served. Mother testified she knew nothing of that paternity action.

Mother testified that she was not aware that Father was on probation for his second DWI until October when she talked to Father's probation officer. Mother testified that the conversation with the probation officer caused her to doubt Father's ability to appropriately parent Son and she decided to move to Virginia with him to prohibit Father from interacting with Son. She quit her Missouri job, applied for a teacher's license in Virginia and moved to Virginia in early November, 2001. She lived with her brother in Virginia until she was able to set up her own living arrangements. She testified she had no intention of letting Father know where she was.

Father claimed Mother left because she was insanely jealous of Father's first child by another encounter. He testified that Mother knew all along that Father was on probation because she drove him everywhere. He further testified that Mother had vowed to make his visitation with his daughter from the previous relationship as miserable as possible. Father testified that Mother was forcing him to choose between his two children. It was at that point that he told her that she would either need to accept his daughter's visits or find a new place to live. Father ultimately found out where Mother was living. On March 1, 2002, Mother was served with notice that Father had filed action to establish paternity and obtain sole custody of Son.

In its judgment the court established the parent-child relationship between Father and Son, changed Son's surname to that of Father's, awarded Mother primary physical custody in Virginia but awarded joint legal custody, established a visitation schedule and awarded Mother $497.00 child support per month.

Father raises three points on appeal. Father's first point asserts the court erred in allowing Mother to relocate to Virginia. Father contends that section 452.377¹ governs the relocation of children and that the court did not follow that statute when making its decision. Section 452.377 provides for modification of existing custody or visitation arrangements. The language of the statute refers to "any party entitled to custody or visitation of the child" and "revised schedules of custody or visitation." Section 452.377(2). In this case, the parents were not married and paternity was not established at the time of Mother's relocation to Virginia. Thus, Father had no legal rights until the judgment establishing his paternity was entered. Mother's voluntary relocation prior to Father's initiation of the instant proceeding did not require court approval. Point denied.

In his second point, Father alleges the court erred in awarding physical custody to Mother because it did not make written findings of the factors listed in section 452.375.2. Father's third point and final point alleges the court's custody decision was against the weight of the evidence. We decline to review these points because Father's brief does not contain any page references to the transcript or the legal file either in the statement of facts or in the argument for these points² as required by Rule 84.04(i). As the court observed in McCormick v. Carmen Schell Const. Co., 97 S.W.3d 497, 505 (Mo.App. 2002), this requirement is mandatory and essential for the effective functioning of appellate courts, which cannot spend time searching the record to determine if factual assertions are supported by the record. This would effectively require the court to act as an advocate for the non-complying party, a role which we expressly decline. Accordingly, we decline review of Father's second and third points.³ Lombardo v. Lombardo, 120 S.W.3d 232, 246-47 (Mo. App.2003).

Mother presents four points in her cross-appeal. In her first point, she contends that the award of joint custody is against the weight of the evidence. 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. Besancenez v. Rogers, 100 S.W.3d 118, 122 (Mo.App.2003).

Preference for joint custody is not that of forced joint custody in order to induce parents to find common ground, but it is a preference in favor of parents who show willingness and ability to share the rights and responsibilities of child-rearing even after they have dissolved their relationship. J.L.S. v. D.K.S., 943 S.W.2d 766, 774 (Mo.App.1997). "Joint legal custody was not designed to insure that a parent maintains his or her relationship with the child, but was designed to facilitate the best interest of the child by allowing both parents to share in the decision making process." Id. Imperative to the best interests of the child in a joint custody arrangement are the commonality of beliefs concerning parental decisions and the ability of parents to cooperate and function as a parental unit. Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991). If the parties are unable to communicate or cooperate and cannot make shared decisions concerning their children's welfare, joint legal custody is inappropriate. McCauley v. Schenkel, 977 S.W.2d 45, 50 (Mo.App. 1998).

The parents in this case have not communicated regarding their Son or any other matter for thirteen months. Mother testified that she would not have initiated contact with Father had it not been for the court summons. Additionally, Father made no attempt to support or visit Son once he found Son's address. The court's stated purpose in ordering joint custody in this case was to ensure Father's continued relationship with Son. The order states:

Due to the short nature of the relationship of the parties, the contentious nature of their current relationship, and the age of the child it is difficult to determine if the parties agree on important issues concerning the minor child.

However, to grant Mother sole legal custody would serve only to exclude Father from any meaningful participation in major decisions in the minor child's life and would not be in the minor child's best interests.

The order granting joint legal custody is not supported by substantial evidence. Mother's first point is granted. On remand, the trial court is directed to grant sole legal custody to Mother.

In her second point, Mother claims the court's decision to accept Father's child support calculation sheet, Civil Procedure Form No. 14 ("Form 14"), which listed his annual income as $40,000 was against the weight of the evidence. The trial court's judgment must be affirmed unless it is unsupported by substantial evidence, 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). An award of child support is within the sound discretion of the trial court. Bullard v. Bullard, 969 S.W.2d 880, 883 (Mo.App.1998). We will not substitute our judgment for that of the trial court absent a manifest abuse of discretion, and we will not disturb an award of child support unless the evidence is palpably insufficient to support it. Id. We have reviewed the record and find that the trial court's determination as to Father's income is supported by substantial evidence and is not against the weight of the evidence. Mother's second point is...