Hankins v. Hankins

• Decision Date: 23 April 1996
• Docket Number: No. WD,WD
• Citation: Hankins v. Hankins, 920 S.W.2d 182 (Mo. App. 1996)
• Parties: Sherri HANKINS, Respondent, v. James HANKINS, Appellant. 50500.
• Court: Missouri Court of Appeals

Page 182

920 S.W.2d 182

Sherri HANKINS, Respondent, v. James HANKINS, Appellant.

No. WD 50500.

Missouri Court of Appeals Western District.

April 23, 1996.

Appeal from the Circuit Court of Jackson County; Honorable Christine Sill-Rogers, Judge.

Marilyn M. Shapiro, Kansas City, for appellant.

Regina Keelan Bass, Thayer, Bernstein & Bass, Kansas City, for respondent.

Before HANNA, P.J., and SMART and ELLIS, JJ.

ELLIS, Judge.

James Hankins appeals from a judgment for dissolution of marriage entered by the Jackson County Circuit Court.

James and Sherri Hankins were married on February 14, 1988. They had one child, James Matthew Hankins (Matt), born October 15, 1990. The parties separated on June 1, 1992, and Sherri filed a petition for dissolution of their marriage on August 18, 1992. James filed an answer and cross-petition on September 23, 1992. On September 15, 1993, the trial court held a hearing on the matter, and at that time, the parties entered into a separation agreement. On November 5, 1993, the court entered a decree of dissolution incorporating the written settlement agreement. On November 18, 1993, James filed a motion to reconsider, set aside the judgment and for new trial based upon the inequity of the written agreement, newly discovered evidence, and his physical condition. ¹ On November 30, 1993, the court sustained James' motion for new trial, based on, among other things, James' physical condition, the serious nature of the matters involved, and the circumstances surrounding the parties' negotiation the settlement agreement. ²

The case was set for a new trial commencing March 24, 1994. After Sherri called one witness, the parties attempted further negotiations but James had another seizure. The hearing was continued, and the court conducted hearings on May 20, 1994, July 29, 1994, August 3, 1994, and August 5, 1994. After conclusion of the evidence, the court requested certain medical information regarding James and an accounting of the social security benefits he had received for himself and on behalf of Matt. Subsequently, counsel met with the court to discuss the medical issues and James provided social security form 2468.

On November 8, 1994, the court entered a judgment in which it awarded sole custody of the minor child to Sherri, awarded specified visitation, and placed certain restrictions on James' visitation based on concerns about his health, including requiring him to provide quarterly written reports from his physician regarding his health, supervision of all visitation, and prohibiting him from driving with Matt in the car. The decree also ordered James to pay current and retroactive child support; ordered James to reimburse Matt's social security benefits in the amount of $10,348.00 at $100.00 per month into a college fund for the child; ordered Sherri to provide health insurance for Matt with the parties equally dividing uninsured medical bills; awarded the family residence to James; divided marital debt; divided the parties' marital property so that each would receive an equal share of the assets in value; and ordered James to pay $2,500.00 of Sherri's attorney's fees.

On December 5, 1994, Sherri filed a motion to correct, amend and modify the judgment, requesting that the court enter a provision relating to the parties' residence whereby James would refinance the property and requesting that the court require the parties to sign documents necessary to effectuate transfers of property, the necessity of a Qualified Domestic Relations Order (QDRO) to divide her retirement account, and a Qualified Medical Child Support Order (QMCSO) to require her to provide insurance. She also requested certain changes in the holiday visitation schedule. On December 7, 1994, the court entered a stay of judgment on its own motion. On December 8, 1994, James filed a motion to reconsider, set aside the judgment or for new trial, requesting the court to reconsider child custody, visitation, and division of property, specifically language relating to Sherri's 401(k) and attorney fees.

On December 21, 1994, the court entered its amended judgment entry, which was the same as the original entry except that it required that a QDRO be entered related to division of property and a QMCSO be entered relative to health insurance. It also contained provisions regarding the family residence which were not in accordance with the agreement testified to by the parties. In the amended decree, the court overruled James' motion to reconsider, set aside the judgment and motion for new trial, finding it had been filed out of time. ³

On January 3, 1995, James filed his notice of appeal. On January 12, 1995, the court on its own motion set a hearing to reconsider the motions previously filed by the parties. After this hearing, the court entered a second amended judgment entry on January 19, 1995, correcting the provisions relating to the parties' real estate and requiring James to maintain Matt as an irrevocable beneficiary on only his Equitable Life Insurance Policy rather than on all policies, which the amended decree had required.

James raises eight points on appeal. As this is a court tried case, we will affirm the judgment of the trial court 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "An appellate court should set aside a judgment on the ground that it is against the weight of the evidence only 'with caution and with a firm belief that the decree or judgment is wrong.' " Harris v. Harris, 803 S.W.2d 167, 169 (Mo.App. S.D.1991) (quoting Jun v. Murphy, 763 S.W.2d 290, 294 (Mo.App.1988)). In reviewing a contention that the evidence is insufficient, we view the evidence in the light most favorable to the verdict and we defer to the trial court's assessment of credibility. Ugbaja v. Sumpter, 821 S.W.2d 557, 559 (Mo.App. E.D.1991).

In his first point, James contends the trial court erred in awarding sole custody of Matt to Sherri rather than awarding joint legal custody to the parties and contends the court's ruling was against the weight of the evidence, not supported by substantial evidence, and was an abuse of discretion. The basis for determining child custody is the best interest and welfare of the child. § 452.375.2; ⁴ Chapman v. Chapman, 871 S.W.2d 123, 125 (Mo.App. E.D.1994); Nix v. Nix, 862 S.W.2d 948, 950 (Mo.App. S.D.1993). As James points out, the General Assembly specifically declared in § 452.375.3 that it is the public policy of this state to assure children frequent and meaningful contact with both parents and that it is in the public interest to encourage parents to share decision-making rights and responsibilities of child rearing. See Luther v. Vogel, 863 S.W.2d 902, 904 (Mo.App. E.D.1993). In order to effectuate this policy, the court is to determine the custody arrangement which will best assure the parents share decisionmaking as is in the best interest of the child under all relevant circumstances. § 452.375.3. Also, under § 452.375.4, the court is to first consider joint custody to both parents, and joint custody should not be denied solely for the reason that one parent opposes a joint custody award. ⁵

James alleges the trial court failed to adequately consider these policies and directives in making its decision to award sole custody to Sherri.

The preference for joint custody as stated in section 452.375 " 'is not that of a forced joint custody in order to induce the parents to find a common ground.'... Rather, it is a preference 'in favor of parents who show the willingness and ability to share the rights and responsibilities of childrearing even after they have dissolved the marriage.' " In re Marriage of Johnson, 865 S.W.2d [412, 417 (Mo.App.1993) ] (quoting Margolin v. Margolin, 796 S.W.2d 38, 49 (Mo.App.1990)).

Burkhart v. Burkhart, 876 S.W.2d 675, 680 (Mo.App. W.D.1994). "Where the record is devoid of substantial evidence that the parties have a commonality of belief concerning parental decisions and the willingness and ability to function as a unit in making those decisions, it is error for the trial court to award joint legal custody." Id.

The record in the case at bar contains substantial evidence that the parties have had difficulty agreeing on certain decisions regarding the child, including naps, diet, medical treatment, and preschool. The evidence also shows that James had not communicated with Sherri as to issues regarding his health and seizures. The trial court specifically relied on these factors in its judgment. ⁶ James concedes the parties have had some difficulties with communication and decision-making regarding the child but that the problems were solvable and did not support an award of sole custody. However, James' contention that he thought the parties could, in the future, solve their problems regarding communication and decision-making is not enough to overcome the evidence supporting the trial court's decision awarding sole custody. ⁷

"We are entitled to presume the trial court considered all the evidence and awarded custody in the best interest of the child." Chapman, 871 S.W.2d at 125. Furthermore, there is no presumption in favor of joint custody; rather, it is only an option. Id. James' allegations that the court did not consider Matt's best interest and that the court awarded sole custody to Sherri as a result of Sherri's request for sole custody or as a punishment toward James are not supported by the record. An award of child custody should not be disturbed unless the trial court's ruling is clearly against the logic of the circumstances or is arbitrary or unreasonable and the appellate court is firmly convinced that the welfare of the child requires some other disposition. Burkhart, 876 S.W.2d at 678. "Accordingly, in child custody proceedings the determination of the trial court is...