Frawley v. Frawley

• Decision Date: 11 February 2020
• Docket Number: WD 82442
• Parties: Victoria L. FRAWLEY, Respondent, v. Matthew J. FRAWLEY, Appellant.
• Court: Missouri Court of Appeals

597 S.W.3d 742

Victoria L. FRAWLEY, Respondent,

v.Matthew J. FRAWLEY, Appellant.

WD 82442

Missouri Court of Appeals, Western District.

Filed: February 11, 2020

Motion for Rehearing and/or Transfer to Supreme Court Denied March 3, 2020

Application for Transfer Denied April 28, 2020

Matthew J. Frawley, Jefferson City Appellant Pro Se.

Stephanie L. Schutt, Liberty; Trang Thanh Thi Bui, Craig D. Ritchie, St. Joseph for respondent.

Before Division Three: Alok Ahuja, P.J., and Anthony Rex Gabbert and Thomas N. Chapman, JJ.

Alok Ahuja, Judge

In 2013, the Circuit Court of Platte County entered a judgment dissolving the marriage of Matthew J. Frawley ("Father") and Victoria L. Frawley ("Mother"). The dissolution decree awarded Mother sole legal and sole physical custody of the couple's two children, and ordered Father to pay $505 per month in child support.

Father filed a motion to modify the child custody and child support provisions of the decree. Mother filed a counter-motion seeking to increase Father's child support obligation, and a motion to hold Father in contempt for failing to satisfy his existing support obligations. After a bench trial the circuit court declined to modify the existing custody arrangement, but altered the visitation provisions of the original decree. The circuit court increased Father's child support obligation to $554 per month. The circuit court held Father in contempt for failing to pay his share of the children's previously incurred extracurricular and unreimbursed medical expenses. It also awarded Mother $10,000 in attorney's fees, and ordered Father to pay two-thirds of the fees of the Guardian ad Litem.

Father appeals, asserting nine Points. We reject eight of his claims. We find, however, that the circuit court erred in calculating Father's modified child support obligation, by failing to give him credit for another child over whom he has primary physical custody. We accordingly reverse the child support provisions of the modification judgment, and remand for further proceedings concerning Mother's motion to modify child support. In all other respects, the judgment is affirmed.

Background

Father and Mother were married in 2008. They have two children together, both boys, who are currently 8 and 10 years old.

On March 7, 2013, the Circuit Court of Platte County entered a judgment dissolving the parties’ marriage. The dissolution decree awarded Mother sole legal and sole physical custody of the couple's two sons. The court did so in consideration of Father's "psychological problems and [his] refusal to address said problems properly through therapy and/or medication." The decree granted Mother discretion to allow Father "either unsupervised or supervised visitation" "in light of Father's psychological difficulties," at "all reasonable times and places" as Mother determined.¹ The circuit court also ordered Father to pay $505 per month in child support, and ordered that the parties equally share health care costs for the children that were not otherwise covered by Mother's medical insurance, and the costs of the children's extracurricular activities.

On June 10, 2016, Father filed a motion to modify the child custody and child support provisions of the original decree. He argued that, in light of a substantial and continuing change of circumstances since entry of the original decree, the court should order that Mother and Father exercise joint legal and joint physical custody of their children. He also argued that, as a result of this changed custody arrangement, his child support obligation should be modified and reduced.

On July 1, 2016, Mother filed a counter-motion to modify Father's child support obligation, arguing that his support obligation should be increased because Father has "obtained a full-time job and is making significantly more money" than at the time of the original decree. On the same day, Mother also filed a motion asking the court to order that Father undergo a psychological and physical examination.

At Mother's request, the circuit court appointed a Guardian ad Litem to represent the interests of the children. The circuit court also ordered that Father undergo a psychological and parenting examination with Dr. Aileen P. Utley.

On December 29, 2016, Mother filed an amended motion to modify, which added an allegation that Father had "not fulfilled his child support obligation" under the existing dissolution decree. Mother filed a motion to hold Father in contempt based on the same contentions in January 2017.

On August 3, 2017, the court granted Father's second attorney's motion to withdraw, over Father's objection. From that point forward, Father (who is himself a lawyer) proceeded pro se. Father has also represented himself in this appeal.

The circuit court heard evidence on the parties’ respective motions to modify and for contempt on six days between December 2017 and November 2018. The court entered its final modification judgment on January 3, 2019. The modification judgment found that:

Since the date of the Judgment and Decree for Dissolution of Marriage, there have been changed circumstances so substantial and continuing as to make the terms of said Judgment and Decree for Dissolution of Marriage unreasonable in regard to child support, custody and Parenting Time. The continuing and substantial changed circumstances included but are not limited to the following:

a. [Father] has relocated his residence from the Kansas City Metropolitan Area to Jefferson City, Missouri;

b. [Father] has engaged in a course of behavior which would endanger the children's physical health or impair their emotional development if [Father] engages in unsupervised contact with the children, to wit:

i. [Father] uses a medication which two qualified medical professionals have stated causes increased psychosis

in [Father];

ii. [Father] fails to have insight on his own mental health condition and fails to follow proper treatment protocol; and

iii. [Father] fails to share his prior medical records with his current treating medical professional resulting in his symptoms not being properly managed.

c. [Father] has engaged in [a] course of behavior during this litigation that shows a lack of stability in his mental health including but not limited to erratic filing of motions during the course of trial, [and] threats both direct and indirect against this Court, Counsel for [Mother], and the Guardian ad Litem.

d. [Father] has obtained new employment and as a result that the application of the Missouri Child Support Guidelines and criteria set forth in Supreme Court Rule 88.01 would result in a change of the existing child support in an amount of 20 percent or more.

The modification judgment continued to give Mother sole legal and sole physical custody of the children. As opposed to the original decree which gave Mother sole discretion over Father's visitation rights, however, the modification judgment specified that Father would have solely supervised visitation, based on the court's conclusion that "Unsupervised Parenting Time with [Father] would endanger the children's physical health or impair their emotional development." The parenting plan incorporated into the modification judgment detailed when and where Father was entitled to exercise his parenting time, including weekly visitation and a holiday schedule.

The circuit court also modified Father's child support obligation, increasing it to $554 per month. The court found Father in contempt for failing to pay $6,352.03 as his share of the children's past extracurricular and uninsured medical expenses, and ordered him to purge this contempt by paying an additional $200 per month until the arrearage was satisfied. The circuit court awarded the Guardian ad Litem $10,959.62 in fees, and ordered Father to pay two-thirds of those fees, or $7,306.34. The court also awarded Mother $10,000 in attorney's fees.

Father appeals, raising nine claims of error.²

Standard of Review

On review of a modification judgment, as with any other court-tried case, we must "affirm the circuit court's judgment unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law." Querry v. Querry , 382 S.W.3d 922, 925–26 (Mo. App. W.D. 2012) (citing Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. 1976) ). "We accept all reasonable inferences and evidence favorable to the [modification] order and disregard all contrary inferences." Kunce v. Kunce , 459 S.W.3d 443, 446 (Mo. App. W.D. 2015) (citation and internal quotation marks omitted). We also defer to the circuit court's credibility judgments, since "[t]he trial court may believe or disbelieve all, part, or none of the testimony of any witnesses." Id. (citation and internal quotation marks omitted).

Discussion

I.

Father's first Point challenges the admission into evidence of exhibits offered by Mother pertaining to his mental health status and treatment. Specifically, Father challenges the admission of Exhibits 2 and 113, which are a business records affidavit, and the associated psychological evaluation report prepared by Dr. Aileen Utley.³

Dr. Utley was appointed by the court to conduct a psychological and parenting assessment of Father. Father argues that Exhibits 2 and 113 were improperly admitted for multiple reasons. Among other things, he argues: that Mother failed to comply with the business records affidavit statute, § 490.692, RSMo, because Dr. Utley's report was not attached to the business records affidavit Mother served on him; that Dr. Utley's report does not qualify as a business record subject to the statute; that Dr. Utley was not qualified to render the opinions described in the report; and that Dr. Utley's report constitutes impermissible expert testimony concerning Father's credibility.

What is notably absent from Father's briefing, however, is any developed argument that he was prejudiced by the admission of Dr. Utley's report. We do not reverse circuit...