Davis v. Schmidt

Decision Date09 January 2007
Docket NumberNo. WD 66039.,No. WD 65517.,WD 65517.,WD 66039.
Citation210 S.W.3d 494
PartiesStephen A. DAVIS, Appellant, v. Victoria C. SCHMIDT, Respondent; E.G.D., Respondent.
CourtMissouri Court of Appeals

Patricka Michael Davis, Kansas City, Mandee Simone Rowen, Kansas City, for Appellant.

Jacki Sue Harmon Breen, Kansas City, for Respondent Schmidt, Bradley P. Grill, Kansas City, for Respondent E.G.D., for Respondent.

RONALD R. HOLLIGER, Judge.

In this consolidated appeal from a judgment of dissolution of marriage of Stephen A. Davis ("Father") and Victoria C. Schmidt ("Mother"), Father contends that the trial court erred in various respects in its custody determination, the parenting plan, the child support order, and in the attorney fee awards for trial services and on appeal. Father challenges the court's amended judgment, raising six points claiming error in the failure to make required findings, that the judgment is incorrect and unwarranted on the merits, and other points relating to attorney fees and recusal by the judge. We reverse and remand for further proceedings.

We take Father's points out of order since the failure to make required findings necessitates reversal. We address the other points relating to custody and child support only as we may provide some direction upon remand but without directing our opinion on the merits. We address the two attorney fees issues and the complaint that the trial judge should have recused himself separately.

FACTS AND PROCEDURAL HISTORY

Father and Mother were married on November 23, 2002, in Weston, Missouri, where Mother lived prior to their marriage. In December 2002, Mother informed Father that she was pregnant. At the time of the marriage Father apparently lived in Wichita, Kansas, and the parties were subsequently unable to agree on where they would make their permanent residence. Father filed his Petition for Dissolution of Marriage on May 16, 2003, which requested that the parties be granted joint physical and legal custody of their unborn child, as well as an award of attorney fees from Mother. The parties' minor child, Emma, was born on July 18, 2003.

In October 2003, Father filed a First Amended Petition seeking sole legal and physical custody of Emma with reasonable rights of visitation to Mother. Mother filed her answer and first amended counter-petition, in which she denied Father's allegation that it was in Emma's best interests that he receive sole legal and physical custody and asked that Mother and Father share joint legal and physical custody. In May 2004, when Emma was about seven months old, Mother and Father entered into a pendente lite stipulation for temporary custody and visitation providing that they share joint legal custody of Emma, as well as joint physical custody, on an equal (50-50) basis, alternating every two weeks. This temporary custody arrangement remained in place for the next nine months, until the trial court issued its judgment decree of dissolution of marriage.

Trial began in July 2004. Before the introduction of any evidence, Mother and Father submitted a property settlement agreement making a division of all debts and assets, marital and non-marital, which was approved by the trial court. Because Father alleged abuse and neglect of Emma by Mother, the trial court suspended all proceedings and appointed Brad Grill as guardian ad litem for Emma. Father then filed his second amended petition seeking to restrict Mother to supervised visitation because she had allegedly neglected to provide proper care, supervision, and hygiene for Emma and exposed her to unsanitary conditions at Mother's home. Mother denied those allegations of abuse and neglect, and trial resumed over three days in January 2005. The court entered a judgment in February finding that it was in Emma's best interests for Mother and Father to exercise joint physical and joint legal custody of Emma, with Mother's residence designated as her address for mailing and educational purposes. With two additions, the court adopted one of the two parenting plans submitted by Mother as being in Emma's best interests. The judgment also awarded Mother $1,090 per month in child support based on the Form 14 she had submitted and incorporated the parties' previous property settlement agreement. The court denied Father's request for an award of attorney fees and expenses, ordered him to pay $11,000 of Mother's trial-related attorney fees and expenses, and assessed costs of the action against Father. Each party was also ordered to pay a portion of the guardian ad litem fees.

On March 18, 2005, Father filed a post-trial motion seeking reconsideration and asking that the judgment be amended to supply missing and required or requested findings of fact, which we will henceforth refer to as Father's motion for new trial. After a hearing the trial court overruled the motion, granted Mother's motion for additional attorney fees in of $1,000 and amended its judgment with two minor changes not relevant to these appeals. Later Mother filed a request for appellate fees and expenses. After a hearing, the court awarded Mother $25,000 in appellate legal fees and $750 in expenses.

Father timely filed notices of appeal as to both final judgments, leading to this consolidated appeal. All other pertinent aspects of the factual and procedural history of this case which are necessary to resolve Father's appeals are set forth in our analysis below.

POINTS ON APPEAL
The Lack of Required Findings

For clarity and logic we address the points on appeal out of order. In his third point, Father argues that the trial court's custody award was the product of an erroneous application of the law. In particular, he contends that the court made insufficient findings from which this court can reasonably review the correctness of the court's judgment as to custody, including whether the court complied with its statutory mandate to "determine custody in accordance with the best interests of the child" as required by section 452.375.2, as well as whether as it was unsupported by substantial evidence or was against the weight of the evidence. We must agree.

Under section 452.375.6, where "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 452.375.41 and the factors listed in section 452.375.2(1) to (8),2 detailing the specific relevant factors that make the chosen arrangement in the best interest of the child." Buchanan v. Buchanan, 167 S.W.3d 698, 701-02 (Mo. banc 2005). In other words, as pointed out by Father in his motion for new trial and acknowledged by Mother in her brief, "if the parties have not agreed to a custodial arrangement, the court must include a finding as to the matter of frequent, continuing, and meaningful contact with the parents, and also a finding detailing the specific relevant factors that made a particular arrangement in the best interest of the child." Huber ex rel. Boothe v. Huber, 174 S.W.3d 712, 716 (Mo.App. W.D.2005) (emphasis added). "So long as any issue or sub-issue of custody is subject to contest between the parties and resolution by the court, written findings that include discussion of the applicable factors from section 452.375.2 are required." Buchanan, 167 S.W.3d at 702 (emphasis added).

While the trial court need not discuss factors that are not relevant, it is required to discuss those that are. Huber, 174 S.W.3d at 716. "The purpose for the statutory requirement to detail the factors is to allow for more meaningful appellate review." Id. If the required findings are not made, we must reverse the custody award and remand to the trial court for its entry of such findings, "as the burden is upon the court to issue [proper] written findings." Id. at 717 (emphasis added); see also Bauer v. Bauer, 38 S.W.3d 449, 456 (Mo.App. W.D.2001).

Father argues that the findings made by the trial court here did not meet those standards, as they "failed to state any [factual] basis for [its] conclusions," thereby preventing a "full, meaningful opportunity for appellate review." In her brief, Mother concedes the trial court had a duty to issue such findings, but contends, without any citation of authority, that its cursory conclusions of law were sufficient to satisfy that obligation.

We addressed this very issue in the recent case of Schlotman v. Costa, 193 S.W.3d 430 (Mo.App. W.D.2006). In Schlotman, the father timely filed a motion to amend the court's original judgment, arguing that the trial court failed to include necessary findings required by statute. Id. at 432. The court then issued an amended judgment. Id. On appeal, this court found that even the amended judgment did "not contain any findings of fact" as to any of the relevant best interests factors in section 452.375.2 or the public policy in section 452.375.4. Id. at 433. All the amended judgment contained was an exhibit titled "Section 452.375 Summary of Relevant Factors," which was incorporated into the judgment. Id. We described the contents of this exhibit as follows:

The incorporated exhibit consisted of a checklist of the best interest factors of 452.375.2. Next to the list of factors were two columns, one for Mother and one for Father. The trial court marked each factor in favor of Mother or Father, presumably depending upon which factor weighed in favor of the particular parent. There was no other discussion on whether the proposed relocation was in the best interests of the children.

Id. We then held that these findings did "not allow meaningful appellate review," and reversed and remanded because the absence of findings left this court unable to reach the issue of whether the decision was against the weight of the evidence. Id. at 433-34; see also Huber, 174 S.W.3d...

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