Ethridge v. Ethridge

• Citation: 239 S.W.3d 676
• Decision Date: 04 December 2007
• Docket Number: No. ED 89120.,ED 89120.
• Parties: Dayna ETHRIDGE, Respondent, v. Dwayne ETHRIDGE, Appellant.
• Court: Court of Appeal of Missouri (US)

239 S.W.3d 676

Dayna ETHRIDGE, Respondent, v. Dwayne ETHRIDGE, Appellant.

No. ED 89120.

Missouri Court of Appeals, Eastern District, Division Four.

December 4, 2007.

Harold G. Johnson, St. Ann, MO, for appellant.

Dayna Ethridge, St. Louis, MO, pro se.

OPINION

GEORGE W. DRAPER III, Judge.

Dwayne Ethridge (hereinafter, "Father") appeals the trial court's judgment dissolving his marriage to Dayna Ethridge (hereinafter, "Mother"). Father raises three points on appeal, challenging the trial court's judgment with respect to child custody, the denial of maintenance, and failure to award him attorney's fees. We affirm in part, reverse and remand in part.

Mother and Father lived together in Indiana for many years prior to marrying on December 31, 1993. They had three sons, two of whom were born prior to the marriage. Father does not dispute the paternity of these children. The parties lived in Indiana for four years after getting married, then moved to St. Louis in May 1997.

At the time of the hearing, Mother testified she was employed at General Motors as an assembler working the second shift from 4:30 p.m. until 1:00 a.m. Mother earned approximately $27.00 to $28.00 per hour, received a pension, contributed to the 401K plan, and received excellent medical benefits that provide coverage for the whole family at no cost to her. Mother attempted to move to the first shift at the assembly plant; however, she did not have the requisite seniority at the time of trial to do so. Mother had been employed at General Motors for approximately seven years.

Father testified he was employed as a school bus driver for the St. Louis County Special School District earning approximately $1,193 per month. Father typically worked from 6:15 a.m. until 5:30 p.m., but these hours varied in the summer. Father further testified he suffered from a hip injury which would require him to undergo total hip replacement surgery. As a result of this condition, Father has an application pending for disability benefits and his physician authorized Father's procurement of permanent disabled license plates.

Mother and Father testified they shared child-rearing responsibilities in the home for the children. Mother testified she provided limited care for their children after school prior to going to work, but Father was usually home in the evenings with the boys. Father testified he helped with homework and spoke to all three sons with respect to behaving at school and doing their assignments.

There was extensive testimony from both parties and the emancipated son with respect to the difficulties all three children had in school. The emancipated son had earned only five credits during four years of high school and did not intend to return in the fall. The emancipated son testified he hoped to obtain a GED and then find employment. The record was replete with references to many disciplinary problems the emancipated son had which resulted in several suspensions from school. Both Mother and Father testified they spoke to school counselors and administrators in an attempt to correct these issues. At the time of the hearing, Mother and Father acknowledged they are having similar problems with one of the younger sons.

The commissioner heard testimony regarding two incidents of alleged marital misconduct. First, Father testified he had a fourth child who was born in July 1994 after the parties were married. Father testified he did not file a joint tax return with Mother during their marriage in order to avoid having any potential tax refund garnished for his arrearages in child support owed to the fourth child who resided in Indiana. Father also admitted he failed to file a personal tax return since 2001, in an effort to avoid having his refund garnished by the State of Indiana.

Second, Mother and Father both testified about an altercation they had on September 5, 2005. Mother and Father were arguing about Mother's relationship with a female friend that Father believed was sexual in nature. Mother testified Father was intoxicated when the argument began and the children were home. As the arguing escalated, the parties "scuffled," and at some point Mother wrapped a telephone cord around Father's neck. The cord was removed eventually and the arguing continued as the parties moved through the house toward the kitchen. Mother testified Father "came at her" and brought up a cigarette toward her as if to burn her. Mother said she grabbed a knife out of the butcher's block and held it at her side. When she went to place the knife back on the counter, Father believed Mother was going to harm him, so he raised his hand and was cut as a result. Father did not seek medical attention, but the police were called to the home, and Mother was arrested.

Mother later pleaded guilty to one count of domestic assault in the second degree, a Class C felony, in connection with this incident. Mother received a suspended imposition of sentence, three years' probation, and was prohibited from contacting Father except with respect to custody exchanges. Both parties also admitted verbal and physical altercations occurred in front of their children.

The parties separated on October 11, 2005. Mother filed her petition for dissolution on November 29, 2005. Father filed a cross-petition for dissolution shortly thereafter. Both parties sought sole physical custody of their two youngest sons (hereinafter, "the Children"). The parties' oldest son was emancipated at the time of the dissolution hearing. Mother requested physical custody of the Children and wanted them to remain with her in the marital home. She testified the Children, age 11 and 13, were responsible enough to stay at home by themselves while she worked second shift. Mother stated she was able to call home at least three times per evening to check on the Children. Further, their emancipated son was living at home and testified he would be willing to help care for the Children while Mother was at work. Father testified that despite currently living with his mother, he would obtain independent housing if he was granted sole physical custody of the Children. Father further stated he would be home after school and in the evenings to care for the Children and help with homework.

While the case was pending, Mother testified Father failed to pick up the Children approximately thirty-nine times for his temporary visitation which occurred in the evenings while Mother was at work. Father disputes this claim and testified he attempted to pick up the Children after school on several occasions, but they would not answer the door or the phone when he arrived. Father would call Mother and Mother would tell him she would send them out of the house. Sometimes the Children did not emerge from the home. Other times the Children would be sent to Mother's uncle or were off playing with friends during Father's scheduled visitation time.

The guardian ad litem (hereinafter, "the GAL") recommended joint legal custody. However, if the trial court felt inclined to award sole legal custody, the GAL suggested it should rest with Father because he seemed more willing to share information with Mother.

With respect to physical custody, the GAL recognized the parties had some issues with custody exchanges and "a few of the bombshells dropped" regarding issues of domestic violence. Despite these issues, the GAL recommended the parties should share a "50-50 custody plan." The GAL suggested two alternatives to the commissioner. First, she offered to devise a plan where Father had custody of the Children during the week and Mother had custody for most weekends. However, in light of the issues with exchanging custody and no real preference that the Children spend the entire week with Father, the GAL proposed a second option. The second option entailed Mother having custody on Monday and Tuesday, Father having custody on Wednesday and Thursday, with the parties alternating weekends. The parties would follow a standard holiday schedule and be provided a continuous block of custody for a period of time in the summer for vacation purposes.

After hearing all of the testimony and reviewing the exhibits, the commissioner issued her findings of fact and conclusions of law which were adopted as the judgment by the trial court. The trial court did not award maintenance to either party, stating "the parties have made no claim for maintenance from the other." The trial court divided the marital property and debt, awarding the marital home to Mother.¹ The trial court determined both parties engaged in marital misconduct, citing Mother's assault on Father and Father's "sexual relationship with a woman who was not his wife during the marriage resulting in the birth of a child." No attorneys' fees were awarded to either party.

With respect to the child custody issues, the trial court adopted the GAL's second recommendation with respect to joint physical custody of the Children that resulted in an alternating custody arrangement during the week. The trial court found joint legal custody was inappropriate because the parties were unable to discuss issues that related to the Children. The trial court awarded Father sole legal custody of the Children. Finally, the trial court ordered Mother to pay Father $1,000 per month for child support of the Children.² Father now appeals.³

This Court reviews a judgment of dissolution in the same manner as we review any court-tried case. Wood v. Wood, 193 S.W.3d 307, 310 (Mo.App. E.D.2006). The judgment must be affirmed unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id., citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will not retry the case, but rather, accept as true the evidence and reasonable inferences therefrom in the light most favorable to the trial court's judgment, and disregard all evidence and inferences to the...