Hall v. Hall

• Decision Date: 15 March 2011
• Docket Number: No. WD 72290.,WD 72290.
• Parties: Scott Benjamin HALL, Appellant,v.Elizabeth Joanne HALL, Respondent.
• Court: Missouri Court of Appeals

336 S.W.3d 188

Scott Benjamin HALL, Appellant,

v.Elizabeth Joanne HALL, Respondent.

No. WD 72290.

Missouri Court of Appeals, Western District.

March 15, 2011.

Anita I. Rodarte, Kansas City, MO, for appellant.Christina E. Gondring, Kansas City, MO, for respondent.Before: MARK D. PFEIFFER, P.J., and VICTOR C. HOWARD and ALOK AHUJA, JJ.ALOK AHUJA, Judge.

Scott Hall (“Father”) appeals a Judgment and Decree of Dissolution of Marriage entered by the Circuit Court of Clay County, which dissolved his marriage to Elizabeth Hall (“Mother”). Father makes multiple arguments challenging both the trial court's child custody determination, and its award of maintenance to Mother. We reject Father's challenge to the maintenance award. Because the trial court failed to make sufficient findings of fact to justify its custody determination, however, we reverse and remand with respect to the custody issue.

Factual Background

Mother and Father were married in May 1997. They had two children during their marriage: a son born in 2003, and a daughter born in 2007.

Trial of contested issues occurred over five days between June and September, 2009. The parents submitted competing parenting plans, in addition to a parenting plan submitted by the Guardian ad Litem. The trial court entered its Judgment on November 18, 2009. The trial court adopted its own parenting plan and awarded joint legal and physical custody to Mother and Father, with the Mother's home designated as the children's address for mailing and educational purposes. The trial court also awarded Mother $3,000 per month in modifiable spousal maintenance, to continue “until further order of the Court.” Father appeals.¹

Analysis

I.

In his first four Points Relied On, Father argues that the trial court failed to make adequate findings of fact to support its child custody determination, and that reversal and remand are required. We agree.

As a preliminary matter, we emphasize that Father filed a timely motion to alter or amend the judgment as required by Rule 78.07(c), raising each of the deficiencies in the judgment on which he now relies on appeal. The trial court's failure to make required findings is accordingly preserved for appellate review. See, e.g., Pickering v. Pickering, 314 S.W.3d 822, 839 (Mo.App. W.D.2010) (“The failure to make the findings required by section 452.375.2 must be raised in a motion to amend the judgment.” (citations omitted)).

The trial court's judgment contains the following findings relevant to child custody issues:

20. The Court has considered the factors as set forth in Sec. [452.] 375.2 RSMO as it relates to the best interests of the minor children as outlined herein:

a) Wishes of the children's parents: The Court did not find this factor to be applicable to the evidence presented or to weigh in either party's favor.

b) Frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father: Considering [the younger child] the Court finds this factor favors Mother. Considering [the older child] the Court finds that this factor weighs evenly in favor of Mother and Father.

c) Interaction and interrelationship of the child with parents, siblings, and any other person[s] who may significantly affect the child's best interest: This factor favors Mother.

d) Which parent is more likely to allow frequent, continuing and meaningful contact with the other parent: The Court finds this factor favors Mother.

e) Child's adjustment to the child's home, school and community. The Court did not find this factor to be applicable to the evidence presented or to weigh in either party's favor.

f) Mental and physical health of all individuals. The Court did not find this factor to be applicable to the evidence presented or to weigh in either party's favor.

g) Intention of either parent to relocate the principal residence of the child. The Court did not find this factor to be applicable to the evidence presented or to weigh in either party's favor.

h) Wishes of the child. The Court did not find this factor to be applicable to the evidence presented or to weigh in either party's favor.

21. The Court finds that until May, 2008, Mother by explicit or implicit agreement of the parties was the “stay-home” parent of both children.

22. The Court finds that prior to May 2008[,] there were typical issues with [older child] and disagreements between Mother and Father on parenting issues, not uncommon to many families. One event does not erase all prior behavior.

....

25. The Court rejects all proposed parenting plans submitted by the Mother, Father and the Guardian Ad Litem.

26. The Court finds it is in the best interests of the minor children that the parties should share joint legal and physical custody of the minor children with Mother's address designated as the minor children's residence for all educational and medical purposes. [Older child] should change schools from his current private school to the public school district wherein Mother resides at the end of the current semester or January 1, 2009 [sic; 2010?].

27. The Court finds the Parenting Plan as outlined herein below to be in the minor children's best interests and hereby adopts same. The parties should be ordered to abide by the terms of same.

Father argues that the trial court's findings are deficient in multiple respects: (1) they fail to adequately address the “best interests” factors specified in § 452.375.2 ²; (2) they fail to adequately explain the factors animating the trial court to reject the parenting plans proposed by Mother, Father, and the Guardian ad Litem, as required by § 452.375.6; (3) they fail to adequately address the evidence of domestic violence Father presented, as required by §§ 452.375.2(6), 452.375.13, and 452.400; and (4) they fail to address Mother's mental health, as required by § 452.375.2(6). We agree that deficiencies in the trial court's findings require that we reverse the trial court's custody determination, and remand for entry of appropriate findings on these statutorily required issues.³

A.

Section 452.375.2 specifies that, in determining custody in accordance with the best interests of the children, “[t]he court shall consider all relevant factors including” the eight factors the trial court listed in paragraphs 21(a) through (h) of its Judgment, quoted above. In addition, § 452.375.4 states:

[I]t is the public policy of this state that frequent, continuing and meaningful contact with both parents after the parents have separated or dissolved their marriage is in the best interest of the child, except for cases where the court specifically finds that such contact is not in the best interest of the child, and that it is the public policy of this state to encourage parents to participate in decisions affecting the health, education and welfare of their children, and to resolve disputes involving their children amicably through alternative dispute resolution. In order to effectuate these policies, the court shall determine the custody arrangement which will best assure both parents participate in such decisions and have frequent, continuing and meaningful contact with their children so long as it is in the best interests of the child.

Section 452.375.6 further specifies that,

[i]f the parties have not agreed to a custodial arrangement, or the court determines such arrangement is not in the best interest of the child, the court shall include a written finding in the judgment or order based on the public policy in subsection 4 of this section and each of the factors listed in subdivisions (1) to (8) of subsection 2 of this section detailing the specific relevant factors that made a particular arrangement in the best interest of the child.

Under § 452.375.6, where “the parties have not agreed to a custodial arrangement, the court [is] required to include in its judgment a written finding based on the public policy in section 452.375.4 and the factors listed in section 452.375.2(1) to (8), detailing the specific relevant factors that make the chosen arrangement in the best interest of the child.” Buchanan v. Buchanan, 167 S.W.3d 698, 701–02 (Mo. banc 2005) (footnote omitted). “So long as any issue or sub-issue of custody is subject to contest between the parties and resolution by the court, written findings that include discussion of the applicable factors from section 452.375.2 are required.” Id. at 702.

While the trial court need not discuss factors that are not relevant, it is required to discuss those that are. “The purpose for the statutory requirement to detail the factors is to allow for more meaningful appellate review.” If the required findings are not made, we must reverse the custody award and remand to the trial court for its entry of such findings, as the burden is upon the court to issue [proper] written findings.

Davis v. Schmidt, 210 S.W.3d 494, 503 (Mo.App.W.D.2007) (citations omitted).

A “checklist” which merely lists the best interest factors enumerated in § 452.375.2, and indicates which parent each factor favors, is insufficient to comply with the statutory mandate. We rejected such a “checklist” approach in Schlotman v. Costa, 193 S.W.3d 430 (Mo.App. W.D.2006). In Schlotman, an amended judgment contained only an exhibit titled “Section 452.375 Summary of Relevant Factors,” which was incorporated into the judgment. Id. at 433. On appeal, the court described the exhibit as follows:

The incorporated exhibit consisted of a checklist of the best interest factors of 452.375.2. Next to the list of factors were two columns, one for Mother and one for Father. The trial court marked each factor in favor of Mother or Father, presumably depending upon which factor weighed in favor of the particular parent. There was no other discussion on whether the proposed relocation was in the best interests of the children.

Id. The court held that the trial court's...