Doynov v. Doynov

• Decision Date: 07 December 2004
• Docket Number: No. WD 62599.,WD 62599.
• Citation: 149 S.W.3d 917
• Parties: Julia Bricker DOYNOV (now Burk), Respondent Pro Se, F.D.D. and A.M.D., Respondents, v. Plamen DOYNOV, Appellant, William Burk, Defendant.
• Court: Missouri Court of Appeals

149 S.W.3d 917

Julia Bricker DOYNOV (now Burk), Respondent Pro Se F.D.D. and A.M.D., Respondents, v. Plamen DOYNOV, Appellant William Burk, Defendant.

No. WD 62599.

Missouri Court of Appeals, Western District.

December 7, 2004.

Sandford P. Krigel, Kansas City, MO, for appellant.

Julia Bricker Doynov (now Burk), Kansas City, MO, pro se.

Barbara E. Hecht, Kansas City, MO, for F.D.D. and A.M.D.

Before ELLIS, C.J., LOWENSTEIN and BRECKENRIDGE, JJ.

PATRICIA BRECKENRIDGE, Judge.

Plamen Doynov appeals from the judgment dissolving his marriage to Julia Bricker Doynov, now Burk. The judgment awarded the parties joint legal custody of their minor children, designated Ms. Burk (Mother) primary residential custodian, set forth specific parenting time to Mr. Doynov (Father), ordered Father to pay child support in the amount of $1104 per month, and divided the parties' marital property. Father appeals the child custody and support provisions of the trial court's judgment, asserting in his first three points that the trial court's award of parenting time was in error. In his fourth point, Father claims that the trial court erred in its child support award because the child support provisions require him to pay for the children's activities and lessons twice.

Four motions are also pending in the case. First, Father filed a motion to strike the deposition testimony of Dr. Sally Pollock from Mother's supplemental legal file because it was not offered or admitted in evidence at trial and, therefore, is not properly part of the record on appeal. Second, Mother filed a motion to conform the trial court's judgment concerning child tax exemptions to reflect the current state of the law as stated in Vendegna v. Vendegna, 125 S.W.3d 911 (Mo.App.2004). Mother also asserts in her brief that Father's brief is deficient for failing to comply with Rule 84.04(d) in stating his points relied on and for failure to comply with Rule 84.04(c) in setting forth the statement of facts. Mother moves to dismiss the appeal on those grounds. While Father's brief may not comply with all the requirements of Rule 84.04, the brief is not so deficient as to preclude review. Accordingly, Mother's motion to dismiss the appeal for failure to comply with Rule 84.04(c)-(d) is denied. Finally, Mother asserts in her brief that she is entitled to damages for frivolous appeal under Rule 84.19.

Because this court finds that the trial court's judgment regarding child support is inconsistent, the judgment is modified, pursuant to Rule 84.14, to enter the judgment the trial court should have entered and, as so modified, is affirmed. The judgment is affirmed in all other respects.

Factual and Procedural Background

Mother and Father were married on January 11, 1992, in Washington, D.C. They had two children, Felice, born on June 29, 1992, and Anya, born on May 19, 1995. In 1995, Father accepted a job with the Midwest Research Institute and the family moved to Kansas City. Mother and Father agreed that Mother would not work outside the home, even though while living in Washington, D.C., Mother graduated from law school and passed the Maryland bar.

In November 2001, William Burk, a friend of Mother's from law school, came to Kansas City to run a marathon and stayed at the parties' marital residence. Over the next two months, Mother and Mr. Burk began an intimate relationship. On or about January 26, 2002, Mother informed Father that she wanted a divorce. On February 15, 2002, Mother filed a petition for dissolution of marriage. Initially, Father did not want a divorce and took the position that the marriage was not irretrievably broken. Because of his desire to continue the marriage, Father remained in the marital residence.

Following an incident where Father restrained Mother against her will in the marital residence, Mother filed a petition for an ex parte order of protection against him, which the circuit court entered the following day. The ex parte order required Father to immediately move out of the marital residence, which he did, and prohibited Father from communicating with Mother. Mother eventually dismissed her petition for an order of protection, in exchange for an agreement by Father that he would not move back into the marital residence.

Trial was originally set for August 12, 2002. Three days before trial was to begin, Father learned that Mother was pregnant and that Mr. Burk was the father of her child. After this discovery, Father no longer opposed the dissolution of the marriage. The trial setting was continued to August 26, 2002, with the Honorable Ann Mesle presiding. On that date, Judge Mesle dissolved the parties' marriage, established Mr. Burk as the father of Mother's unborn child, entered a temporary parenting schedule, and continued the trial to October 2002, for evidence regarding custody, parenting time, division of marital property, and attorney's fees.¹ Under the temporary parenting schedule, Father was to pick up Anya after school on Tuesday and return her to Mother at 7:00 P.M.; on Wednesdays, Father was to pick up both children after school and return them to school on Thursday morning; on Thursdays, Father was to pick up Felice after school and return her to Mother by 7:00 P.M. In addition, Father was to have parenting time from 3:00 P.M. on Friday through Monday morning the first and third weekends of each month. Father and Mother were to split parenting time during the fourth weekend of each month, with Father picking up the children from school on Friday and returning them to Mother on Saturday at 4:00 P.M.

The children, especially Felice, were very upset by the temporary parenting schedule because of the amount of time they were to spend with Father. Anya, in particular, was upset over the fact that she and her sister were separated during the time they spent with Father. On one occasion while the children were spending time with Father, Felice became very angry with Father. Both children left Father's house and walked across a park to the marital home where Mother was. Father followed the children and waited outside. The children were upset and scared and refused to go outside. Mother called Dr. Pollock to mediate the situation. Mother and Father eventually decided that, because the children were so upset, they would remain with Mother for the weekend. Mother and Father further agreed that Father and Felice would meet with Dr. Pollock for a joint session the following week. Mother also took Felice to the doctor earlier that day to record bruises on Felice that she claimed Father had caused. Because of the accusation, Judge Mesle appointed a guardian ad litem. DFS conducted an investigation and ultimately concluded that the allegations were unsubstantiated. Upon the advice of the guardian ad litem, the parties agreed to participate in mediation, and the trial date was continued until December 2002. Sometime after Judge Mesle entered the temporary parenting schedule, the parties modified the parenting schedule as follows: Father would pick up both children after school on Tuesdays and return them to Mother at 7:00 P.M.; Father would pick up both children after school on Wednesdays and return them to school on Thursday morning; and the parents would alternate weekends, which would begin on Friday after school and continue until Monday morning.

Mother filed a motion to recuse Judge Mesle, which was granted, and the case was transferred to Judge Romano. Trial was held on December 16-18, 2002, and January 13, 2003. During the trial, the court heard testimony from both parties and various witnesses, including Dr. Pollock, who was the children's therapist, and Dr. Barbara Thompson, a therapist who met individually with Father and jointly with Father and Mother. On February 7, 2003, the trial court entered its judgment awarding the parties joint legal custody and designating Mother as the children's residential custodian, subject to Father's parenting time set forth in the parenting plan incorporated into the trial court's judgment. The court rejected the proposed parenting plans of both Father and the guardian ad litem and accepted Mother's proposed plan with slight modifications. The final parenting plan adopted by the trial court provides Father with parenting time every Wednesday from 3:00 P.M. until 8:00 P.M. and every other weekend from Friday at 3:00 P.M. until Sunday at 8:00 P.M. In addition, when the children are not in school on the day immediately after Father's parenting time, Father's parenting time continues until the next day at noon. The plan also allows each parent two uninterrupted weeks of vacation time during the summer and sets forth an alternating schedule for holidays. Finally, the trial court's judgment divided the parties' marital assets, ordered Father to pay $1104 per month in child support, and ordered Mother to pay $25,000 towards Father's attorney's fees. This appeal by Father followed.

Standard of Review

The standard of review in this case is established by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). This court will affirm the trial court's judgment 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. Id. This court will set aside a judgment as "against the weight of the evidence" only if it firmly believes that the judgment is wrong. Buschardt v. Jones, 998 S.W.2d 791, 796 (Mo.App.1999). There is the presumption that the best interests of the child motivate the trial court. Id. Therefore, the trial court's assessment of what serves the child's best interests will be affirmed unless this court is firmly convinced that the child's welfare requires some other disposition. Id. Where evidence on an issue is disputed, or where there is contradictory evidence, this court defers to the trial court's credibility determinations. Id. Greater deference is given to the trial court's determination in...