Cerna-Dyer v. Dyer
| Decision Date | 20 February 2018 |
| Docket Number | WD 80312 |
| Citation | 540 S.W.3d 411 |
| Parties | Nelly Sobeida CERNA–DYER, Respondent, v. Scott Alexander DYER, Appellant. |
| Court | Missouri Court of Appeals |
Stephen G. Mirakian, Kansas City, MO, for respondent.
Brittany A. Brown, Chesterfield, MO, for appellant.
Before Division Three: Gary D. Witt, Presiding Judge, Lisa White Hardwick, Judge and Edward R. Ardini, Jr., Judge
Scott Dyer ("Father") appeals the judgment of the Circuit Court of Jackson County dissolving his marriage to Nelly–Cerna Dyer ("Mother") and granting Mother joint physical and joint legal custody of the parties' son A.D. ("Child"). Father argues that the court erred in failing to award equal parenting time for each party with Child. Finding no error, the trial court's judgment is affirmed.
Father and Mother were married on May 30, 2009. Child was born to the marriage and is now five years old.
On approximately April 10, 2015, Mother and Father separated. Following the separation, Mother and Child sought an alternative residence while Father remained at the residence owned by Father's mother, Dr. Diann Taylor ("Taylor"). Mother filed a Petition for Dissolution of Marriage on April 15, 2015, along with a Proposed Parenting Plan providing for joint custody and asserting that Mother's address should be used for educational and mailing purposes.
In response, Father filed a counter Petition for Dissolution of Marriage on April 24, 2015. Father filed his Proposed Parenting Plan requesting joint legal and physical custody on April 29, 2015. Father's Proposed Parenting Plan asserted that his address should be used for educational and mailing purposes on behalf of Child and provided equal parenting time under which both parents would alternate parenting time on a weekly basis.
During the time of separation, Father had parenting time with Child on alternating weekends from Friday at 4:00 p.m. to Sunday at 6:00 p.m. and weekly from Wednesday at 4:00 p.m. until Thursday at 6:00 p.m. At all other times, except designated holidays and extended parenting time in the summer, Child was in Mother's care. A Guardian ad Litem ("GAL") was appointed.
A trial was held on August 5, 2016 and August 26, 2016. Mother testified that she was concerned with Father's drinking because when she lived with him, he would drink enough to be intoxicated on a daily basis. Father testified that he drank on a situational basis and Taylor testified that Father drank only one or two drinks a week. Anna Kobe ("Kobe"), Taylor's caretaker, testified that she had only witnessed Father drink one beer during the several year period that she had been caring for Taylor in the same home where Father lived. Mike Bledsoe ("Bledsoe"), Father's friend and Child's godfather, testified that on a night when Father was possibly going to have parental time with Child, Father consumed approximately six beers.
GAL presented a Proposed Parenting Plan, which included that "neither parent shall consume alcohol or other intoxicating substance while the [C]hild is in their care" and that "neither parent shall consume alcohol within 12 hours of residential parenting time." Father testified that he was not in agreement with the language because he wanted the opportunity to have a beer, if he wanted, while Child was in his care.
Mother testified that she was also concerned with Father's firearms. Father had approximately three firearms in the marital residence, one of which was kept loaded. None of the firearms had child safety locks or any other safety device on them that would prevent an individual from pulling the trigger. One of the firearms is a shotgun which was stored under the bed. Mother testified that Child was able to crawl under the bed and touch the shotgun. Father testified that the only weapon in the home which was loaded was in the kitchen out of reach of Child and that all other firearms were stored with the firearm separated from the ammunition. Father is a competitive shooter. Mother also owned at least one firearm she kept in her home.
From July 2015 to July 2016, either Taylor or Mother's mother provided childcare for Child. Father did not agree with enrolling Child in daycare due to the costs and availability of Taylor to provide childcare at no cost. Over Father's objection, Child has been attending Creative World School for childcare since July 2016. Mother testified that she was happy with Creative World School and that Child seemed happy with the program. Father did not take Child to Creative World School during his parenting time but had Taylor provide care for Child when Father was at work.
Taylor suffers from a chronic medical condition which requires her to have a medical caregiver (Kobe) each day because her medical condition precludes her from standing for extended periods of time and periodically results in disabling headaches that require her to lay in bed until the headache passes. Kobe is prohibited by her contract as a caregiver for Taylor, from caring for Child. When Taylor has one of her debilitating headaches she is unable to provide care for Child until the headache passes.
On November 11, 2016, the court entered its Judgment of Dissolution of Marriage ("Judgment"). Within the Judgment, the court considered the appropriate custody arrangement pursuant to section 452.375.52 , as well as all relevant factors, including those specifically contained in section 452.375.2.
There were several factors which the court found did not favor either party.3 These factors are not at issue on appeal. In determining "[t]he needs of the [C]hild for a frequent, continuing and meaningful relationship with both parents" pursuant to section 452.375.2(2), the court acknowledged that both parties have demonstrated the ability and willingness to perform their functions as Mother and Father. However, the court also found that Father regularly drank alcohol while Child was in his custody. The court placed great weight on this factor, especially considering Father's possession of unsecured loaded firearms. The court found this factor favored Mother.
In analyzing "which parent is more likely to allow the [C]hild frequent, continuing and meaningful contact with the other parent" pursuant to section 452.375.2(4), the court acknowledged that both parties have issues with this obligation. The court found that when Mother left the marital residence following the initial separation she denied Father any access to Child for a period of 18 days. The court also found that Father refused to agree to allow Child to attend Creative World School unless Mother agreed to his Proposed Parenting Plan. Ultimately, the court found that this factor favored neither party.
In determining the "[C]hild's adjustment to the [C]hild's home, school, and community" pursuant to section 452.375.2(5), the court acknowledged that Child had spent a significant amount of time since the separation at Mother's residence. As a result, the court acknowledged that Child is adjusted to Mother's home and community. Thus, this factor was found to favor Mother.
Upon review of these factors, the court found both Mother and Father were "fit and proper persons to share joint legal and joint physical custody of the minor child." The court determined that the GAL's Proposed Parenting Plan, as amended by the court, was in the best interests of Child. Father was awarded parenting time on alternating weekends from Friday evening until Monday morning and Wednesdays at 6:00 p.m. until Fridays at 9:00 a.m. on the weeks he does not have parenting time on the weekend. Father and Mother were awarded periods of extended summer parenting time, as well as alternating holidays. Further, the court prohibited either party from consuming intoxicating substances within six hours of transporting Child, and prohibited either party from drinking to the point of intoxication while Child was in that party's care.
Father brings one point on appeal alleging that the trial court erred in not awarding equal parenting time with each party because the trial court's judgment was against the weight of the evidence.
Before turning to Father's arguments, we must first determine Father's claim of error. Father raises an "against-the-weigh-of-the-evidence" challenge in his point relied on but argues in his sub-points and throughout his argument that the court's findings were not supported by sufficient evidence. A challenge of "insufficient evidence" requires the appellant to demonstrate that there was no substantial evidence to support the trial court's decision as opposed to a challenge that the trial court's judgment was "against the weight of the evidence" which presupposes that there is sufficient evidence to support the judgment. G.E.R. v. B.R. , 441 S.W.3d 190, 196 (Mo. App. W.D. 2014). Father effectively raises an "against-the-weight-of-the-evidence" challenge in his point relied on but argues a "not-supported-by-substantial-evidence" challenge throughout the rest of his brief.
Missouri courts have repeatedly explained that an "against-the-weight-of-the-evidence" challenge is not the same as a "not-supported-by-substantial-evidence" challenge. See, e.g., Hopkins v. Hopkins , 449 S.W.3d 793, 802–03 (Mo. App. W.D. 2014) ; Sauvain v. Acceptance Indem. Ins. Co. , 437 S.W.3d 296, 299 n.1 (Mo. App. W.D. 2014) ; accord Ivie v. Smith , 439 S.W.3d 189, 199 n.11 (Mo. banc 2014). Rather, they are "separate and distinct challenges." Hopkins , 499 S.W.3d at 802. We are "restricted to the issues raised in the points relied on." White v. RPM Mgmt., Inc. , 186 S.W.3d 497, 501 (Mo. App. S.D. 2006). Therefore, we will review Father's claim of error under the "against-the-weight-of-the-evidence" standard, as this is the standard he argues in his point relied on.
We review the trial court's judgment in determining child custody and in determining child support using the same standard as for all cou...
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