Francka v. Francka

Decision Date20 August 1997
Docket NumberNo. 21060,21060
Citation951 S.W.2d 685
PartiesJohn K. FRANCKA and Larry A. Tyrrell, Guardian Ad Litem, Appellants, v. Joann FRANCKA, Respondent.
CourtMissouri Court of Appeals

Charles (Ed) Lee, Walker, Salveter, Lee & Graff, Springfield, for appellant Francka.

Charles B. Cowherd, Husch & Eppenberger, Springfield, for appellant Tyrrell.

David A. Fielder, Lisa A. Ghan, Lowther, Johnson, Joyner, Lowther, Cully & Housley, L.L.C., Springfield, for respondent.

PARRISH, Judge.

John K. Francka (husband) appeals various awards the trial court made in the action he brought against JoAnn Francka (wife) for dissolution of marriage. He appeals the custody award, the award of maintenance to wife, the award of attorney fees to wife, the order that he pay guardian ad litem fees, and the order that he pay capital gains taxes on insurance proceeds received by reason of a fire loss to a residence owned by the parties. The guardian ad litem also appeals the child custody order. This court affirms.

This being a non-jury case, the judgment of the trial court is reviewed in accordance with Rule 73.01(c). The judgment is to be affirmed unless there is no substantial evidence to support it or it is against the weight of the evidence, or unless it erroneously declares or applies the law. In re Marriage of Lawry, 883 S.W.2d 84, 86 (Mo.App.1994). The evidence is viewed in the light most favorable to the judgment. Id. at 86-87.

The parties were married October 14, 1989. They have one child, a daughter, who was six years old at the time of trial.

The parties were living in Hartville, Missouri, when they separated March 17, 1995. Wife and the child moved to Springfield, Missouri, where they lived with wife's parents. Wife filed a petition for dissolution of marriage in the Circuit Court of Greene County, Missouri.

In April 1995, husband and wife discussed the possibility of reconciliation. They spent time together and began looking at houses and property to purchase. Husband asked wife to dismiss her Greene County action for dissolution of marriage. On June 16, 1995, she dismissed the lawsuit.

Wife's stepfather became ill May 16, 1995, and was hospitalized in Springfield. Wife requested that husband keep their child when her stepfather became ill so she would be available to assist her mother. He kept the child and wife remained with her mother at the hospital where her stepfather was being treated. Wife's stepfather died May 22, 1995. After his death, wife continued assisting her mother in concluding her stepfather's business affairs.

In July, wife and her brother went on a week-long cruise with her mother. Wife's mother took the two of them on the cruise as an expression of appreciation for the assistance they provided during the time wife's stepfather was ill and after his death. The parties' daughter stayed with husband while wife was away from July 22 through July 29.

When wife returned she attempted to contact husband but was unable to do so until Monday, July 31, 1995, when she left a message at his place of employment for him to call her. That same day, July 31, husband filed his petition for dissolution of marriage in the Circuit Court of Wright County, Missouri--the action that is the subject of this appeal.

Husband returned wife's call. He did not tell her he had filed the dissolution action. Wife asked when he was bringing their daughter back to her. He answered, "We'll be up this evening after work."

Wife was served with process in the dissolution action August 2, 1995. The child had been with husband in Wright County when the petition was filed and remained there at the time wife was served. Wife called husband and asked why he filed the petition. He told her he wanted to have their daughter close to him and have her in the Hartville school.

Wife returned to Hartville a short time later and resumed living with husband and their daughter in a house trailer. She stayed "[a]bout a week and a half," until August 30. Wife was asked the following questions and gave the following answers:

Q. And what occurred on August 30th?

A. On my way coming back home I met [husband] heading toward Marshfield. I pulled up to the driveway, got out of the car, found a--my bag of makeup and hair dryer and stuff on the front porch.

Q. Had you and he had previous discussions that you should move out?

A. No.

Q. So what did you do when you arrived at the trailer?

A. I got the bag, I put it in the car, and I waited for him because I figured he'd turn around and come back.

Q. Did he eventually show up?

A. Yes.

Q. And what took place at that time?

A. I asked him if I could have the rest of my stuff, and he said sure. And I got it and left.

The trial court dissolved the marriage; awarded wife monthly maintenance for a period of three years; divided marital property; set over nonmarital property to wife; allocated marital debts between the parties and ordered each party to "assume and pay" the debts that were "set aside" to him or her and to hold the other party harmless as to the debts that party was ordered to pay; ordered husband to pay $17,781.50 to wife to compensate her "for the dissipation of marital insurance proceeds by [husband]"; ordered husband "to pay any capital gains taxes which may occur as a result of the failure to properly reinvest the proceeds" from insurance benefits paid as a result of a fire loss sustained by the parties; awarded joint legal custody of the child to husband and wife; awarded "primary physical custody" to wife and granted extensive "rights of visitation" to husband; 1 ordered husband to pay child support in the amount of $412.55 per month; declared which parent would be entitled to claim the child as a dependent for federal and state income tax purposes; assessed responsibility for providing medical insurance and paying medical expenses for the child; ordered husband to pay wife's attorney fees in the amount of $20,000; and ordered husband to pay court costs including the guardian ad litem fee of $600.

Child Custody

Husband's first allegation of trial court error is directed to the child custody order. Point I asserts the trial court erred in awarding "primary physical custody" to wife because the award was not in the best interests of the child. Husband contends the evidence established he "provided a better and more stable home environment and the child has stronger ties with [his] community"; he "possesses better parenting skills than [wife] and the child is more closely bonded with [him]"; and "the guardian ad litem's actions, investigations and reports confirmed that [the child] was closely tied with, supported by and given stability by the school, church and community associations provided while in ... [husband's] primary physical custody, and that the trial court failed to properly monitor the guardian ad litem's performance."

As explained in n. 1, supra, the trial court's classification of the award of custody to wife as "primary physical custody" was a mischaracterization. The parties were granted joint physical custody. As was done in Rinehart v. Rinehart, 877 S.W.2d 205, 207 (Mo.App.1994), Point I will be considered as contending the joint custody order's allocation of time when the child resides with each parent or under their care and supervision was contrary to the child's best interests.

Husband was granted the right to visit with the parties' child during times the child was in the care and custody of wife "upon reasonable notice to [wife] of intention to exercise said visitation." He was granted further visitation "[e]very other weekend from 6:00 p.m. on Friday until 6:00 p.m. on Sunday."

Each party was given temporary custody of the child for designated periods on alternating holidays. The applicable holidays were specified. Husband was allowed custody on father's day and wife on mother's day.

Husband and wife were each granted custody for two nonconsecutive two-week periods during the summer of each year. Husband was permitted to "see the minor child one (1) evening per week on Wednesday from 5:30 p.m. to 7:30 p.m." Wife was awarded custody during times not otherwise specified. Husband contends this custody arrangement was not supported by substantial evidence and was against the weight of the evidence.

In considering the sufficiency of the evidence, this court presumes the trial court reviewed all the evidence and decided the custody issue in a manner consistent with the child's best interests. Ledbetter v. Sampson, 924 S.W.2d 617 (Mo.App.1996). The trial court is in a better position to judge credibility of witnesses, their sincerity, character and other intangibles than is an appellate court that limits its review to the study of a written record of testimony. P.L.W. v. T.R.W., 890 S.W.2d 688, 690 (Mo.App.1994). Accordingly, a trial court has broad discretion in determining child custody. Id. Greater deference is accorded a trial court's decision in custody cases than in other types of cases. Breckner v. Coble, 921 S.W.2d 624, 626 (Mo.App.1996); Johnson v. Johnson, 839 S.W.2d 714, 717 (Mo.App.1992).

The trial court found:

The Court finds that [wife] has been personally involved in the care and support of [the child] from her birth. The Court finds that [wife] has been involved in [the child's] education, has consistently allowed [husband] liberal contact with the minor child, and has promoted the relationship between [the child] and her father. The Court finds that [the child] has numerous relatives in the Springfield area and that Springfield Catholic Schools is an appropriate institution at which [the child] may be educated.

The trial court then assessed the testimony of two psychologists and a clinical social worker who testified at trial concerning the child custody issue. Each had evaluated the child.

The trial court found testimony from each practitioner to be credible. It noted there was testimony that husband and...

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