Cule v. Cule

Decision Date27 January 2015
Docket NumberNo. ED 100694,ED 100694
Citation457 S.W.3d 858
PartiesGeorge C. Cule, Respondent, v. Odeta C. Cule, Appellant.
CourtMissouri Court of Appeals

James C. Ochs, 149 North Meramec, 2nd Floor, Clayton, MO 63105, for appellant.

Kristin K. Zurek, Three City Place Drive, Suite 600, St. Louis, MO 63141, for respondent.

Patricia L. Cohen, Presiding Judge

Introduction

Odeta Cule (Wife) appeals the judgment and decree of dissolution of marriage to George Cule (Husband) entered by the Circuit Court of St. Louis County. Wife claims that the trial court erred in: (1) awarding joint legal and physical custody of their children without making specific findings as required upon a finding of domestic violence; (2) including in the judgment an abatement provision regarding Husband's support obligation; (3) awarding Husband the rental property as separate property; and (4) denying maintenance to Wife. We affirm in part and reverse and remand in part.

Factual and Procedural Background

Husband and Wife married in September 1994. During their marriage, Wife gave birth to the parties' son, M.C., in 1996 and their son, E.C., in 2001.

At the time Husband and Wife married, they resided in a four-family flat with Husband's aunt, who owned the building (the Jamieson property). In March 1997, Husband's aunt transferred title to the Jamieson property by quit claim deed to Husband. Husband's aunt died in 1998. In September 2002, Husband was a resident alien of the U.S. and Wife was a U.S. citizen. On September 17, 2002, Husband transferred title to the Jamieson property into the joint names of Husband and Wife. Three days later, Husband received his green card.

In 2004, Husband and Wife purchased a house (the marital residence), and the family moved out of the Jamieson property and into the marital residence. Husband continued to use the Jamieson property as a residential rental property.

Husband and Wife separated in March 2010. On March 22, 2010, the trial court issued Wife a full order of protection. The order awarded Husband visitation with the children on alternate weekends.

On August 2, 2010, Husband filed his petition for dissolution of marriage. In his petition, Husband requested sole legal and physical custody of M.C. and E.C. Husband also filed a statement of property in which he claimed the Jamieson property as inherited, separate property. Wife filed her counter-petition, requesting, among other things, that the trial court award: (1) sole legal and physical custody of the children to Wife “due to [Husband's] physical and emotional abuse”; and (2) maintenance to Wife because she was “without sufficient income, funds, and resources to provide for her reasonable needs.” Wife also filed a statement of property showing the Jamieson property as marital property.

On November 1, 2010, the trial court entered an order pendente lite and interim custody order. The order pendente lite ordered Husband to pay Wife $613 per month for support of their children. In the interim custody order, the court awarded Husband custody of the children on Wednesdays from 6:30 to 8:30 pm and Saturdays and Sundays from 10:00 am to 7:00 pm. The order further instructed Husband to pick up and drop off the children at the marital residence.

On April 20, 2011, the court entered an order (referral order) requiring Husband and Wife to exchange custody of M.C. and E.C. at the St. Louis County Exchange Center (Exchange Center). The order also modified Husband's visitation times to Wednesdays at 6:30 p.m. and 8:30 p.m., Saturdays at 10:00 a.m. and 4:00 p.m., and Sundays at 4:00 p.m. and 8:00 p.m.

Starting in May 2011, Wife “frequently” asked Sandra Ford, an Exchange Center employee, to advise Husband to pick up and drop off the children at the marital residence because she was unable to transport the children to and from the Exchange Center. Wife's notice regarding pick up location was often untimely, causing Husband to travel to the Exchange Center and then travel to the marital residence to exercise his visitation rights. On September 10, 2011, Ms. Ford informed Wife that the Exchange Center would no longer be responsible for directing Husband to pick up the children at the marital residence instead of the Exchange Center.

On November 9, 2011, M.C. told Ms. Ford he wished to discontinue visitation with Husband, and he has not participated in visitations with Husband since that date. On March 1, 2012, Husband filed a motion for contempt, alleging, among other things, that Wife failed to enforce the court-ordered schedule for visitation.

On May 11, 2012, the trial court held a hearing on the petition for dissolution. Husband, Wife, M.C., E.C., and the children's guardian ad litem (GAL) testified. In her testimony, the GAL recommended that it was in the children's best interests to “spend time with both parents” and believed that custodial exchanges between Husband and Wife should occur at the Exchange Center.

On June 14, 2013, the trial court issued its 62–page findings, conclusions and judgment of dissolution of marriage. In its findings, the trial court stated that: (1) “Husband has engaged in a pattern of domestic violence during the marriage; nevertheless, the best interests of the minor children require that Husband and Wife be awarded joint legal and joint physical custody of the minor children”; (2) “Wife has intentionally, willfully and contumaciously interfered with the exercise by Husband of his ... right [under the court's order pedente lite and referral order] to visitation with [M.C.] since November 9, 2011; (3) the Jamieson property was separate property belonging to Husband; and (4) Wife had “sufficient property, including marital property apportioned to her, to provide for her reasonable needs and earns, or is capable of earning, an income sufficient to support herself.” Based on these findings, the trial court: (1) awarded joint physical and legal custody of M.C. and E.C.; (2) ordered that Husband's support obligation for either M.C. or E.C. “shall abate from and after November 9, 2011 during each week or month, as the case may be, in which [M.C. or E.C.] fails, or has failed, without good cause, to participate in a court ordered period of physical custody with Husband”; (3) awarded Husband the Jamieson property; and (4) denied Wife's request for maintenance.

In July 2013, Husband and Wife each filed motions to amend the judgment, or in the alternative, motions for new trial. In her motion, Wife alleged, among other things, that the trial court erred in: (1) awarding joint legal and physical custody of the children because substantial evidence did not support the award; (2) including a ‘penalty’ clause against [Wife] that allows child support to abate for each child from and after November 9, 2011; (3) awarding the Jamieson property to Husband as separate property; and (4) denying her maintenance. The trial court held a hearing on Husband's and Wife's motions. Following the hearing, the trial court entered an order denying Wife's claims. Wife appeals.

Standard of Review

We will affirm the trial court's judgment of dissolution of marriage 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We view the evidence and permissible inferences therefrom in the light most favorable to the trial court's judgment and disregard all contrary evidence and inferences. Maninger v. Maninger, 106 S.W.3d 4, 9 (Mo.App.E.D.2003). Where the testimony is in conflict, we defer to the trial court's determinations of witness credibility. Vanderpool v. Vanderpool, 250 S.W.3d 791, 795 (Mo.App.S.D.2008).

Discussion
1. Statutorily required findings regarding pattern of domestic violence

In her first point, Wife asserts that the trial court erred in awarding joint legal and physical custody of M.C. and E.C. without making written findings detailing the relevant factors as required by sections 452.375.61 and 452.375.2(6).2 Specifically, Wife contends that, because the court found a pattern of domestic violence and awarded joint custody, section 452.375.2(6) required the trial court to make specific findings of fact and conclusions of law demonstrating that the custody arrangement: (1) is in the best interests of the children; and (2) best protects the victims of domestic violence. Husband counters that the trial court did not err because the judgment included written findings that “substantially complied” with section 452.375 in that subsection 452.375.2(6) does not “prescribe ... specific standard[s] or factors that the trial court must address in making its ‘specific findings.’

Wife did not preserve her claim that the trial court failed to make written findings required by section 452.375.6. Rule 78.07(c) requires that “allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review.” Rule 78.07(c). To preserve the alleged claim of error, a motion to amend a judgment must “specifically challenge[ ] the failure to make statutorily mandated findings.” In re Holland, 203 S.W.3d 295, 302 (Mo.App.S.D.2006). Wife failed to claim, in her motion to amend the judgment, that the trial court erred in failing to make the statutorily required findings regarding the best interests of the children. Accordingly, her claim is not preserved for our review. See Thomas v. Moore, 410 S.W.3d 748, 755 (Mo.App.W.D.2013).

Wife similarly did not preserve her claim that the trial court failed to make the statutorily required findings under section 452.375.2(6) after finding a pattern of domestic violence and awarding joint custody. In her motion to amend the judgment, Wife asserted that the trial court's award of joint...

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2 books & journal articles
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