Fessler v. McGovern

• Decision Date: 01 August 2017
• Docket Number: No. WD 80056.,WD 80056.
• Citation: 524 S.W.3d 208
• Parties: Jerry Anthony FESSLER, Appellant, v. Kerri Joann MCGOVERN, Respondent.
• Court: Missouri Court of Appeals

524 S.W.3d 208

Jerry Anthony FESSLER, Appellant,
v.
Kerri Joann MCGOVERN, Respondent.

No. WD 80056.

Missouri Court of Appeals, Western District.

OPINION FILED: August 1, 2017

Christopher M. Rohrer, Osage Beach, MO, for appellant.

Kerri J. McGovern, Respondent pro se.

Before Division Three: Alok Ahuja, Presiding Judge, Thomas H. Newton, Judge and Cynthia L. Martin, Judge

Cynthia L. Martin, Judge

Jerry Fessler ("Fessler") appeals from the trial court's judgment declaring paternity, establishing child custody, and ordering child support for the parties' minor child ("Child"). Fessler presents two points on appeal. First, Fessler argues that the trial court erred in awarding Kerri McGovern ("McGovern"), the Child's mother, sole physical custody because that award is contrary to section 452.375¹ and is not supported by the evidence presented at trial and disregarded his proposed parenting plan. Second, Fessler claims that the trial court erred in its calculation of child support because, in making its calculation, the trial court failed to use the parties' actual gross monthly income. We affirm in part, and reverse and remand in part.

Factual and Procedural Background²

Fessler and McGovern met in November 2006, and began dating shortly thereafter. In 2008, Fessler and McGovern began living together in Fessler's Marceline, Missouri home, but they never married. McGovern gave birth to the Child on September 8, 2010. Fessler was present for the birth and executed an affidavit acknowledging his paternity of the Child. Fessler, McGovern, and the Child resided together in Marceline until February 2011 when Fessler and McGovern terminated their relationship. When Fessler and McGovern reconciled in December 2011, McGovern and the Child moved back into Fessler's home and continued to reside there until January 2013 when the parties again separated. At the time the trial court entered its judgment, Fessler resided in Marceline, and McGovern resided in Jefferson City, Missouri with the Child.

In September 2015, Fessler filed a petition ("Petition") seeking the establishment of paternity of the Child, a custody order for the Child, and a support order for the Child. Fessler's Petition sought joint legal and joint physical custody of the Child. Fessler's parenting plan proposed that Fessler and McGovern have joint physical

524 S.W.3d 211

custody of the Child, with Fessler having parenting time on the first, third, and when applicable, the fifth weekends of every month from 6:00 p.m. on Friday to 6:00 p.m. on Sunday. Fessler's parenting plan further proposed that Fessler have parenting time with the Child four weeks each summer, and proposed a holiday schedule for physical custody of the Child. Finally, Fessler's proposed parenting plan provided that "[n]either parent shall use nor allow others to use, in the presence of the child, any illegal controlled substance; and neither party shall be or allow others to be intoxicated in the presence of the child."

McGovern filed an answer and counter-petition ("Counter-Petition") seeking a declaration of paternity and orders for the custody, visitation, and support of the Child. McGovern's parenting plan proposed that McGovern would have sole legal and sole physical custody of the Child and proposed that Fessler would have supervised visitation every other Saturday from 12:00 p.m. to 3:00 p.m. for the first six months; visitation every other Saturday from 8:00 a.m. to 5:00 p.m. for the following six months; and visitation every other weekend from 6:00 p.m. on Friday until 6:00 p.m. on Sunday thereafter. McGovern's proposed parenting plan required Fessler to "be sober and not smell of alcohol when he arrives to pick up" the Child. McGovern also filed a motion for appointment of a guardian ad litem to represent the interests of the Child, which the trial court granted.

A trial was held over the course of two days in May 2016. Fessler, McGovern, Fessler's two adult daughters, and McGovern's mother testified. The bulk of the testimony concerned Fessler's alcohol use and relationship with the Child. McGovern testified that she believed that Fessler was unfit as a custodian for the Child because he consumes alcohol on a daily basis to the point that he is unable to care for the Child. McGovern testified that, when she lived with Fessler, he drank alcohol at the local Eagles Lodge every day after work and then would drive home before passing out after a night of drinking. McGovern testified that, on separate occasions, Fessler had passed out in the kitchen, on a recliner, and in the garage while sitting in his idling truck. McGovern recounted one time when Fessler passed out in the bathtub while the water was running, resulting in the bathroom flooding. McGovern testified that she is concerned that Fessler would not wake up in the middle of the night to take care of the Child, who has difficulty sleeping through the night.

Fessler testified that he drank the heaviest when he was in a relationship with McGovern but that he never drank so much that it affected his daily obligations, including work. Fessler further testified that he has never been convicted of alcohol-related crimes. Fessler admitted, however, that he had previously operated a motor vehicle after consuming alcohol. Fessler testified that, at the time of the trial, he drank less than he did when he lived with McGovern. Nonetheless, Fessler admitted that he drank alcohol at the local Eagles Lodge nearly every day in the week preceding the trial. Fessler further testified that he has never consumed alcohol during his visits with the Child, which take place on the weekends when McGovern has military drill duties because McGovern's mother, with whom the Child stays in Marceline, allows Fessler to visit the Child during the day. Each of Fessler's adult daughters testified that they have never seen Fessler drinking around the Child. The Child had only one overnight visit with Fessler during times when Fessler and McGovern were separated.

With respect to Fessler's use of alcohol, the guardian ad litem testified:

524 S.W.3d 212

I've spoken to most of the people who have testified here today, additional people, including friends and family of both parties, and there is a consistency that alcohol has been a big part of both Mr. Fessler and Ms. McGovern's life when they were together and before [the Child] was born. [D]efinitely after [the Child] was born, Ms. McGovern has greatly decreased her alcohol intake and recently within the last six to eight months Mr. Fessler has ... decreased his alcohol intake, though certainly based on the testimony, you know, his own testimony today, still drinking on a nightly basis if he doesn't have [the Child] with him. I found no evidence of him drinking when [the Child] is with him.

The guardian ad litem testified that she was concerned about how the Child would adjust to overnight visits at Fessler's home due to the Child's sleep difficulties. The guardian ad litem recommended easing into overnight visits by starting with longer daytime visits followed by one overnight every other weekend before full weekend visits.

The trial court issued its judgment ("Judgment") declaring Fessler to be the natural father of the Child, and ordering visitation and support. The trial court found that it is in the best interest of the Child for Fessler and McGovern to have joint legal custody and for McGovern to have sole physical custody subject to the arrangement set forth in the parenting plan. The parenting plan adopted by the trial court provided that, for the first six months, Fessler's visits with the Child would occur on the first and third Saturday of each month from 8:00 a.m. to 5:00 p.m.³ Thereafter, Fessler's visits would occur on the first and third weekends of each month from 6:00 p.m. on Friday until 6:00 p.m. on Sunday. The parenting plan also provided that Fessler is entitled to two uninterrupted weeks for summer visitation. The parenting plan stipulated that Fessler "must be sober and not smell of alcohol when he arrives to pick up" the Child.

The trial court found that Fessler has an approximate gross monthly income of $5,478.00, and that McGovern has an approximate gross monthly income of $3,840.00. The trial court used these figures to calculate a presumed child support amount of $1,039.00 to be paid by Fessler. The trial court rejected the presumed child support amount as unjust and inappropriate. The trial court ordered Fessler to pay $659.00 per month in child support beginning August 1, 2016, with that amount decreasing to $547.00 per month on January 1, 2017.

Fessler appeals.

Standard of Review

We review the trial court's judgment in determining child custody and in determining child support using the same standard for all court-tried cases. Shields v. Epanty , 503 S.W.3d 227, 231 (Mo. App. W.D. 2016) ; Hall v. Utley , 443 S.W.3d 696, 702 (Mo. App. W.D. 2014). "We view the evidence in the light most favorable to the circuit court's judgment and will affirm the 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." Robertson v. Nelson , 502 S.W.3d 627, 632-33 (Mo. App. W.D. 2016). We view the evidence and all reasonable inferences drawn...