Davidson v. Fisher, WD 61150.

• Decision Date: 04 February 2003
• Docket Number: No. WD 61150.,WD 61150.
• Citation: 96 S.W.3d 160
• Parties: Amy Marie DAVIDSON, Appellant, v. Robert A. FISHER, Jr., Respondent.
• Court: Missouri Court of Appeals

96 S.W.3d 160

Amy Marie DAVIDSON, Appellant, v. Robert A. FISHER, Jr., Respondent.

No. WD 61150.

Missouri Court of Appeals, Western District.

February 4, 2003.

James Anthony Nadolski, St. Joseph, MO, for Appellant.

John Roger Brage, St. Joseph, MO, for Respondent.

Before JAMES M. SMART, JR., P.J., ROBERT G. ULRICH, and RONALD R. HOLLIGER, JJ.

JAMES M. SMART, JR., Judge.

Amy Marie Davidson appeals the ruling of the trial court granting primary physical custody of Hayley Fisher to Robert Fisher. She contends on appeal that the court's findings were inadequate and that the ruling was against the weight of the evidence. We affirm the judgment of the trial court as to custody, but we remand for adoption of an adequate parenting plan.

Factual Background

Amy Marie Davidson ("Mother") gave birth to a girl, Hayley Fisher ("the child"), in February 1999. The child's father is Robert Fisher ("Father"). Mother and Father have never been married. Mother and Father lived together for four months after the child's birth, and then Father abandoned Mother and the child. Soon afterwards Mother and the child were evicted when Mother could not pay the household bills. Mother lived with relatives until March 2000, when she obtained her own residence. The child remained with Mother during this period. Father did not provide any child support.

In the summer of 2000, Father began cohabiting with Amanda Jones. Father and Amanda have a child, born in August 2001. Father's work history is unstable, with numerous job changes and periods of unemployment. Amanda does not work outside the home. Father and Amanda live in a small two-bedroom trailer.

Mother is an assistant manager at a restaurant and resides in a duplex. Mother began dating Michael Emery in 2000. Emery had a violent disposition and a criminal record. Emery set fire to Mother's vehicle and physically assaulted her. In October 2000, Mother decided to leave the child with Father and Amanda until her problems with Emery were resolved.

When the child returned to Mother's care is not clear. Mother claims that within two weeks the child returned to her house, except for daytime visits with Father and Amanda while Mother worked. Father claims that Mother left the child with him full-time from October 2000 until July 2001. The evidence showed that the child was at Father's house almost daily during that time period.

During this time period, Mother continued to have contact with Emery, despite the fact that she had earlier sought a protective order against him. She became pregnant with his child in April 2001 and gave birth in December 2001. In April 2001, Emery was charged with physically assaulting Mother and another woman. Mother testified against Emery at trial. Emery received a sentence of four months in jail. After his release, according to Mother, Emery and Mother did not continue their relationship. Emery's visitation with his child took place at his parent's house.

In July 2001, while Emery remained incarcerated, both Mother and Father filed petitions for custody. There had been no prior custody determination. Father claims that Mother had begun restricting his access to the child. Mother claimed that Father had threatened to take the child away from her. The Circuit Court of Buchanan County held a hearing, and on February 5, 2002, granted custody to Father and visitation to Mother. Mother now appeals.

Required Findings

Mother first argues that the trial court erred in granting Father custody because the award was contrary to law. Mother contends that the Court did not consider the relevant factors set forth in § 452.375.2, RSMo 2000, as required.

This was the original custody ruling. Mother and Father could not agree on a custodial arrangement. Missouri law provides that:

If the parties have not agreed to a custodial arrangement ... the court shall include a written finding in the judgment or order based on the public policy in subsection 4 of [§ 452.375]¹ and each of the factors listed in subdivisions (1) to (8) of section 2 of [§ 452.375] detailing the specific relevant factors that made a particular arrangement in the best interest of the child.

§ 452.375.6, RSMo 2000. Subsection 2 of § 452.375 provides that:

The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:

(1) The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties;

(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;

(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests;

(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;

(5) The child's adjustment to the child's home, school, and community;

(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and the parent or other family or household member who is the victim of domestic violence from any further harm;

(7) The intention of either parent to relocate the principal residence of the child; and

(8) The wishes of a child as to the child's custodian.

Mother argues that the court erred because it did not enter findings of fact relating to all eight factors delineated in § 452.375. The court entered the following findings of fact relating to child custody:

6. Plaintiff Amy Marie Davidson and her mother have acted to deny Defendant Robert A. Fisher, Jr. contact and visitation with Hayley Marie Fisher during the year 2001. The court finds that Defendant Robert A. Fisher, Jr. is the parent most likely to afford the other parent frequent, continuing and meaningful visitation.

7. Plaintiff Amy Marie Davidson has, and may yet remain, the object of an abusive relationship with a former paramour, Michael Emery, a person with whom she shares a minor child. That child presently resides in the household of Plaintiff Amy Marie Davidson. The court finds that the exercise of visitation by Plaintiff Amy Marie Davidson of Hayley Marie Fisher in the presence of Michael Emery would endanger Hayley Marie Fisher's physical health or impair her emotional development.

8. After considering the relevant factors set forth in RSMo 452.375.2(1-8), the court finds that the best interests of the minor child, Hayley Marie Fisher, would be served by the creation of a joint legal custodial relationship under which Defendant Robert A. Fisher, Jr. would be designated as primary physical custodian. Plaintiff Amy Marie Davidson will have reasonable rights of visitation as set forth below.

A court is required to detail "the specific relevant factors that made a particular arrangement in the best interest of the child." § 452.375.6 (emphasis added). Here, the court discussed the two factors it considered the most relevant. First, the court determined that Father was more likely to allow frequent, continuing and meaningful contact between the child and the non-custodial parent, which addresses factor 4 of § 452.375.2. Second, the court determined that Mother's relationship with Michael Emery might constitute a danger to the child, which addresses § 452.375.4 and factors 3 and 6 of § 452.375.2. These determinations provided support for the trial court's decision to award custody to Father.

In this case, it is evident that factor (1) (wishes of the child's parents) is not material to the custody decision. Each parent wants custody. Factor (3) (relationships with parents, siblings and others) overlaps factor (2) (need for parental involvement and willingness of parents) in this case because there are no other persons with whom child has bonded to be specifically considered. Factor (5) (child's current adjustment) is not key in that the child has spent substantial time in both Father's and Mother's home and was apparently welladjusted to both homes. Factors (7) and (8), relating to possible relocation and the desire of the child respectively, are not pertinent here. Thus, here the pivotal factors in the court's mind were (2), (4) and (6), as to which the court entered written findings.

The purpose of the statutory revision was to assure that all pertinent considerations were described by the trial court so as to allow for more meaningful appellate review. We find no authority specifically deciding that the trial court must specifically discuss each of the eight factors listed in § 452.375.2, whether the trial court deems them all pertinent or not. Mother cites Brandow v. Brandow, 18 S.W.3d 584 (Mo.App.2000), arguing that the decision in this case must be vacated for lack of specific findings. The court in Brandow held that if the written findings required by § 452.375 are not made, the appellate court will remand to the trial court for the findings to be made. Id. at 588. In Brandow, the trial court had neglected to make any findings. This case differs in that the trial court in this case made specific relevant findings. Thus, we hold the award of custody is in compliance with § 452.375.

Weight of the Evidence

Mother next argues that the trial court's decision was against the weight of the evidence and was not supported by substantial, credible evidence. "An appellant seeking to reverse a trial court's ruling concerning custody of a child has to overcome a high standard of review." Welch v....