Durbin v. Durbin

• Decision Date: 19 June 2007
• Docket Number: No. WD 67403.,WD 67403.
• Citation: 226 S.W.3d 876
• Parties: Tammy Lou DURBIN (Now Lepley), Appellant, v. Mark Leslie DURBIN, Respondent.
• Court: Missouri Court of Appeals

226 S.W.3d 876

Tammy Lou DURBIN (Now Lepley), Appellant, v. Mark Leslie DURBIN, Respondent.

No. WD 67403.

Missouri Court of Appeals, Western District.

June 19, 2007.

Jack A. Cochran, Blue Springs, MO, for appellant.

Mark Leslie Durbin, Adrian, MO, pro se.

Before HAROLD L. LOWENSTEIN, Presiding Judge, JOSEPH M. ELLIS, Judge and LISA WHITE HARDWICK, Judge.

PER CURIAM.

Tammy Lepley¹ (Mother) appeals from a judgment entered in the Circuit Court of Bates County modifying the decree dissolving her marriage to Mark Durbin (Father). Specifically, Mother challenges the trial court's modification of the child custody, visitation, and child support provisions of that judgment.

Mother and Father were married on June 16, 1990, and subsequently resided in Adrian, Missouri. Three children were born of the marriage: Cassandra, born January 16, 1991; Michael, born February 27, 1995; and Alexander, born March 20, 1997.

On May 7, 1998, Mother filed a petition for dissolution of marriage in the Circuit Court of Bates County. On July 10, 1998 the circuit court entered its judgment dissolving the couple's marriage. The court awarded the couple joint legal custody over the children, granted Mother "primary physical custody" of all three children, and established a visitation schedule for Father. The court ordered Father to pay $800 per month in child support to Mother. Shortly after the decree was entered, Mother moved to the Kansas City area.

On July 30, 1999, Father filed a motion to modify the dissolution decree with regard to custody, visitation, and child support. Following a hearing, on August 24, 1999, the circuit court entered its "Judgment and Order of Temporary Child Custody, Visitation and Support." In that judgment, the court awarded "temporary primary physical custody" of the three children to Father and set forth a visitation schedule for Mother. The court terminated Father's child support obligation to Mother, but did not enter an award of support to Father.

On January 3, 2003, after Father, who is a member of the Missouri National Guard, was notified that he was going to be called up for active military duty, Mother filed a motion to modify child custody and support. Father was subsequently placed on active military duty and deployed to Iraq. Mother assumed custody of the children after Father was deployed. Father returned from Iraq in June 2004, but remained on active duty at Fort Leonard Wood until March 12, 2005. The couple agreed that the children should remain with Mother through the end of the 2005 school year.

On June 28, 2005, Mother filed an amended motion to modify child custody. Mother's motion was heard by the circuit court on December 15 and 16, 2005.

On August 1, 2006, the circuit court entered its "Order of Modification and Judgment Entry." In that judgment, the circuit court found that it was in the best interests of the children that Father and Mother share joint physical and legal custody of the children. The judgment provided: (1) that Mother's address should be Cassandra's address for purposes of mail and education and set forth a visitation schedule for Father, (2) that Respondent's address should be the boys' address for purposes of mail and education and set forth a visitation schedule for Mother, and (3) that Mother was to pay $340 per month in child support to Father. Mother brings three points on appeal from that judgment.²

In her first point, Mother contends that the circuit court erred in placing the boys primarily with Father because the weight of the evidence established that it was in their best interests to be placed with her instead. Mother then points to several pieces of evidence that she believes supports awarding custody of the boys to her.

"As in other judge-tried cases, our standard of review in a modification of custody proceeding is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976)." Manula v. Terrill, 136 S.W.3d 528, 530 (Mo.App. E.D.2004). The trial court's ruling will be affirmed "unless there is no substantial evidence to support it, it is against the weight of the evidence, or it declares or applies the law incorrectly." Johnston v. Dunham, 172 S.W.3d 442, 445 (Mo.App. W.D.2005). In reviewing the trial court's judgment, we must view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the trial court's judgment and disregard all evidence and inferences to the contrary. St. Lawrence v. St. Lawrence, 109 S.W.3d 225, 226-27 (Mo.App. E.D. 2003).

"`We give greater deference to the trial court in child custody cases than in other types of cases because the trial court is in the best position to judge the credibility of the parties, their sincerity, character, and other intangibles which may not be revealed by the record.'" Hamer v. Nicholas, 186 S.W.3d 884, 886 (Mo.App. W.D.2006) (quoting In re Marriage of Parmenter, 81 S.W.3d 234, 242 (Mo.App. S.D. 2002)). "We defer to the trial court's superior ability to assess the credibility of witnesses and view all facts and reasonable inferences in a light most favorable to its decision." Dunkle v. Dunkle, 158 S.W.3d 823, 832-33 (Mo.App. E.D.2005). "We do not reweigh the evidence, even if the evidence could have supported another conclusion." Id. at 833. "We presume that the court awarded custody in accordance with the children's best interests after reviewing all of the evidence and we will reverse its decision only if we are firmly convinced that the welfare and best interests of the children require otherwise." Id.

In making her argument, Mother wholly disregards our standard of review. She views the evidence in the light most favorable to herself and disregards substantial amounts of evidence favorable to Father or unfavorable to herself.

We have thoroughly reviewed the record and found that, while the evidence may also have supported a contrary decision, the evidence was more than sufficient to support the trial court's award of custody and that decision was not against the weight of the evidence.³ The record reflects that both Father and Mother are capable, loving parents, who occasionally squabbled with each other but were ordinarily able to communicate with each other. Both could provide a suitable home for the children.⁴

Mother ignores substantial evidence favorable to the trial court's judgment. The record contains evidence of instances in which Mother took the children without notifying Father of their location, one time for almost a month, and that Mother had placed the children in therapy without consulting with Father. Father testified that the boys' behavior had deteriorated while he was in Iraq, and he presented evidence that Michael's performance at school had likewise declined. Mother admitted that "Adrian is a wonderful school." Furthermore, Michael testified that he and his brother enjoyed living in the country and taking part in all of the outdoor activities available to them in Adrian. In addition, both the paternal and maternal grandparents live within fifteen minutes of Father and would frequently see the boys when they are in Adrian.⁵

After assessing the credibility of the witnesses and weighing the evidence, the trial court concluded that it was in the boys' best interests to reside more with Father. This court must defer to that assessment. Id. at 832-33.

In her second point, Mother contends that the record did not contain any extraordinary circumstances that would allow for splitting the custody of the children between Father and Mother. She contends that the boys should not have been separated from their sister and should, therefore, have been placed primarily with her.

Mother is correct that "absent exceptional or unusual circumstances, Missouri courts do not support the separation of siblings or split custody." In re Marriage of Barton, 158 S.W.3d 879, 884 (Mo. App. S.D.2005). "However, it is also well established that the trial court has the authority to order such a custody arrangement if it is in the best interests of the children." Id. "There is no absolute set of rules to follow when awarding child custody; each case must be examined in light of its own set of unique facts." Id.

In this instance, the evidence reflects that Cassandra, who is now sixteen years old, did not want to live with her brothers and supports a finding that it was in her best interest not to do so. Over the summer before the final hearing, Cassandra told a DFS worker that she wanted to stay in Adrian with Father. Her mind changed, however, after her brothers moved to Adrian later that summer. At trial, Cassandra testified that she wanted to live with Mother and stay at school in Lee's Summit. Cassandra testified that Father gave her less attention and that she felt ignored with her brothers living in the same house.

Cassandra testified that she similarly felt Mother gave her brothers more attention when they were all together. Indeed, she told the DFS worker that her mother treated her like she did not exist when her brothers were around. Cassandra testified that Mother gave her more attention once her brothers were living with Father.

Cassandra was fifteen at the time of trial; her brothers were nine and eleven. Given the difference in age, sex, and stated interests of Cassandra and her brothers, the trial court could reasonably have determined that her interaction with her brothers, even if living in the same house, would be minimal. Cassandra indicated that she had sufficient contact...