Cunningham v. Cunningham

• Decision Date: 07 September 2004
• Docket Number: No. ED 83767.,ED 83767.
• Citation: 143 S.W.3d 647
• Parties: Robert Eugene CUNNINGHAM, Respondent, v. Amy Ann CUNNINGHAM, Appellant.
• Court: Missouri Court of Appeals

143 S.W.3d 647

Robert Eugene CUNNINGHAM, Respondent, v. Amy Ann CUNNINGHAM, Appellant.

No. ED 83767.

Missouri Court of Appeals, Eastern District, Division Four.

September 7, 2004.

Appeal from the Circuit Court, Audrain County, Keith M. Sutherland, J Robert V. Krueger, Mexico, MO, for appellant.

David T. Smith, Columbia, MO, for respondent.

LAWRENCE E. MOONEY, P.J.

In this marital dissolution case, the wife, Amy Ann Cunningham, appeals the trial court's judgment and decree of dissolution of her marriage to the husband, Robert Eugene Cunningham. The wife's points on appeal all challenge the child-custody provisions of the decree wherein the trial court awarded the parties joint legal custody, and joint physical custody, with primary physical custody of the parties' two minor children awarded to the husband. The wife alleges the trial court: (1) failed to make written findings detailing the specific relevant statutory factors that supported its custody award; (2) failed to include all statutory terms in its written parenting plan; (3) failed to address whether any domestic violence had occurred during the marriage; and (4) erred in awarding physical custody of the children to the husband, as such ruling was against the weight of the evidence. Two of the wife's claims of error have merit and require remand. Because the trial court was required to include written findings detailing the specific relevant factors supporting its custody award, and because the trial court's parenting plan did not include all required statutory terms, we reverse and remand.

Factual and Procedural Background

At the time of trial, husband and wife had been married for nearly ten years, and had two children, ages 8 and 6. In his petition for dissolution of marriage, husband prayed for sole legal custody of the children, and joint physical custody, with primary physical custody awarded to him. The wife, in her counterpetition, prayed for joint legal custody, and that she be awarded primary physical custody of the children. The husband and wife each submitted their own separate proposed parenting plan reflecting their respective individual recommendations. The trial court entered judgment awarding joint legal custody and joint physical custody of the minor children, with primary physical custody of the children awarded to the husband, subject to the wife's reasonable rights of visitation. The wife now appeals.

Discussion

Our review of this court-tried case is pursuant to Rule 73.01(c). See Holmes v. Holmes, 878 S.W.2d 906, 909 (Mo.App. E.D.1994); Shelton v. Shelton, 29 S.W.3d 400, 402 (Mo.App. E.D.2000). As that rule is construed in Murphy v. Carron, we must affirm the trial court's judgment unless there is no substantial evidence to support the decision, the judgment is against the weight of the evidence, or the trial court erroneously declares or applied the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989); Bond v. Bond, 77 S.W.3d 7, 10 (Mo.App. E.D.2002).

The wife first alleges the trial court erred in failing to make written findings detailing the specific relevant factors demonstrating that its physical-custody arrangement was in the best interest of the children and elucidating why the court rejected the proposed custody arrangements requested by each party. The wife argues these written findings are required by Section 452.375 RSMo. (2000).¹ That section states that 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. See, e.g., Gross v. Helm, 98 S.W.3d 85, 87 (Mo.App. E.D.2003) quoting Brandow v. Brandow, 18 S.W.3d 584, 587-8 (Mo.App. W.D.2000). The statute also 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 in the rejection of the arrangement. See, e.g., Brandow, 18 S.W.3d at 588.

The record in this case reflects that the wife and husband did not agree upon a custodial arrangement for their children, and that the trial court rejected their proposed custodial plans. Both parties submitted separate parenting plans. The wife's plan provided for joint legal custody, with primary physical custody to her. The husband's plan provided instead for sole legal custody, and joint physical custody, with primary physical custody to him. The court, in its judgment, however, awarded the parties joint legal custody of the children, joint physical custody, with primary physical custody to the husband. According to the plain language of the statute, because the parties had not agreed to a custodial arrangement, the trial court was 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 children. Additionally, because the trial court rejected the parties' proposed plans, the court was required to make a written finding detailing the specific relevant factors resulting in the rejection of the parties' proposed custody arrangements. The trial court, however, did not make these required findings. As such, its judgment is not in compliance with section 452.375.6. See Brandow, 18 S.W.3d at 588. Accordingly, the judgment regarding child custody is reversed, and the case is remanded to the trial court with instructions for the court to make the required findings in compliance with section 452.375.6, and for entry of a new child-custody judgment as the trial court deems proper. See also, Gross, 98 S.W.3d at 88; Sleater v. Sleater, 42 S.W.3d 821 (Mo.App. E.D.2001); Morse v. Morse, 80 S.W.3d 898 (Mo.App. W.D.2002); Bauer v. Bauer, 38 S.W.3d 449 (Mo.App. W.D.2001).²

Similarly, we also remand this case to the trial court with instructions for the court to amend its court-ordered parenting plan. The wife alleges the trial court failed to include all of the statutory terms in its written parenting plan, as required by section 452.375.9, which provides, in pertinent part, that "[a]ny 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." Specifically, the wife raises four complaints regarding the court-ordered parenting plan.

First, the wife alleges that the court's plan lacked a specific written schedule detailing the custody, visitation and residential time for each child, for the weekdays, as required by section 452.310.7(1)(d). The wife argues that the court's omission is problematic in light of evidence showing her availability and past practice of having the children with her each weekday after school. Section 452.310.7(1)(d) provides, in pertinent part, that the parenting plan should include a "specific written schedule detailing the custody, visitation and residential time for each child with each party including ... weekday and weekend schedules...." The trial court's plan here provides for weekend, summer vacation, and holiday schedules, but is silent regarding a weekday schedule, and thus fails to comply with section 452.310.7(1)(d). While it might be inferred from the trial court's silence that the husband has custody of the children each weekday, the statute does require that a weekday schedule be included in the parenting plan. Our decision today should not be read as implying that the mother is entitled to visitation every weekday by default, as she would prefer, just because she is available or because that was the parties' past practice. We do not so find. Rather, we only hold that the court's plan fails to comply with the statute, as it does not include a weekday schedule. On remand, the trial court may enter whatever weekday schedule it deems appropriate and in the best interest of the children.

Second, the wife complains that the court-ordered parenting plan lacked details on how the decision-making rights and responsibilities will be shared between the parties, specifically the decisions regarding child-care providers and how such providers would be selected, as required by section 452.310.7(2)(d). The court's plan does provide generally that each parent "shall confer and discuss with the other parent decisions affecting the health, education and welfare of the children, as well as decisions involving the activities of the children." However, section 452.310.7(2)(d) provides, in pertinent part, that there should be a "specific written plan regarding legal custody which details how the decision-making rights and responsibilities will be shared between the parties including ... child care providers, [and] how such providers will be selected." The trial court's plan regarding legal custody is silent on this issue. On remand, the trial court should provide further clarification.

Third, the wife complains that the court-ordered parenting plan failed to specify how expenses of the child, including child-care expenses, will be paid, as required by section 452.310.7(3)(e). That section provides that the written parenting plan should include how the expenses of the child, including child care, will be paid, including the cost of child-care expenses, if any. We note that no evidence as to the amount of child-care expenses was presented at trial, and the court's plan is silent on this issue. To the extent there would be any child-care expenses, the court's plan fails to specify how these will be paid, and thus fails to comply with the statutory requirements.

And fourth, the wife complains that to the extent that the court-ordered...