Hicks v. Hicks, WD

Decision Date02 June 1998
Docket NumberNo. WD,WD
Citation969 S.W.2d 840
PartiesMelinda Starr HICKS, Respondent, v. Michael Leon HICKS, Appellant. 54257.
CourtMissouri Court of Appeals

Carla G. Holste, Carson & Coil, P.C., Jefferson City, for appellant.

Kerry G. Rowden, Tuscumbia, for respondent.

Before BRECKENRIDGE, P.J., and LOWENSTEIN and SPINDEN, JJ.

BRECKENRIDGE, Presiding Judge.

Michael Leon Hicks (Father) appeals the trial court's judgment dissolving his marriage to Melinda Starr Hicks (Mother). He contends that the trial court erred by awarding Mother primary custody of the parties' three children. He also claims that the child support award was not supported by the record because the trial court failed to make a finding that the Form 14 he submitted was unjust and failed to enter its own calculation on the record, and that the trial court erred in ordering Father to pay one-half of Mother's student loan and one-half of Mother's Jeep debt. Because the trial court did not make findings required by Rule 88.01 regarding its child support award, that portion of the judgment is reversed and remanded. The child custody award is affirmed, as there is substantial evidence to support the trial court's finding that it is in the best interests of the children that Mother be the children's primary custodian. This court also affirms the trial court's allocation of the student loan and the Jeep debt because the property and debt division is fair and equitable and both debts were incurred during the marriage.

On appeal of a judgment in a dissolution of marriage proceeding, this court reviews the evidence in the light most favorable to the trial court's decision. Replogle v. Replogle, 903 S.W.2d 551, 553 (Mo.App.1995). Father and Mother were married on February 16, 1990. They have three children, Michael Elza Hicks, who was born on October 10, 1990, Tyler Jordan Hicks, who was born on November 19, 1991, and Ashlee Nicole Hicks, who was born on January 14, 1994.

At the time of separation, the family was living in Blue Springs, Missouri. The family moved from Columbia, Missouri to Blue Springs in June of 1995. Mother had been working at a Wal-Mart store in Columbia, and was transferred to the Blue Springs Wal-Mart store. Father was employed as a police officer for the City of Independence Police Department.

Approximately five months after moving to Blue Springs, Mother was transferred to an assistant manager position at a Wal-Mart store in Overland Park, Kansas. At the Overland Park Wal-Mart, Mother worked five to six days a week. Two of those days she worked from 7:00 a.m. until 12:00 a.m. or 1:00 a.m., and the remaining days she worked from 7:00 a.m. until 5:00 p.m. Father worked four days a week from 4:00 p.m. to 2:00 a.m.

After Mother's cousin's child drowned in an accident, Mother wanted to spend more time with the children, and asked to be transferred back to the Blue Springs Wal-Mart store in October of 1996. Father was opposed to this. He testified that her transfer put the family in a financial bind and was one of the causes of the break-up of their marriage. Mother's salary at the Blue Springs Wal-Mart was about half of what it was at the Overland Park Wal-Mart.

Father and Mother separated on November 14, 1996, when Mother and the children left the marital residence and moved to Eldon to live with the children's maternal grandmother and step-grandfather. The next day, Mother filed her petition for dissolution of marriage and, thereafter, Father filed a counter-petition for dissolution of marriage.

The case was tried on January 30, 1997. On April 8, 1997, the court entered a judgment dissolving the parties' marriage and ordering the division of property and debts. The court also ordered that the parties have joint legal custody of the three children, and awarded Mother primary physical custody. Father was granted reasonable visitation rights, including every other weekend, every other holiday, and the full month of July. Additionally, Father was ordered to pay $825 per month in child support. Father timely filed this appeal.

Sufficient Evidence Supports the Child Custody Award

In his first point, Father contends that the trial court erred in awarding primary physical custody of the parties' three children to Mother. He argues that the evidence does not support such award because he was the children's primary caregiver, Mother abruptly removed the children from the family home, he can provide the children with a more stable environment than Mother can, and his proposed joint custody plan afforded both parents more frequent and meaningful contact with the children.

This court will affirm the custody determination of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence or the trial court erroneously declared or applied the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Flathers v. Flathers, 948 S.W.2d 463, 465 (Mo.App.1997). The appellate court affords the trial court greater discretion in determining child custody than in other matters. Flieg v. Flieg, 884 S.W.2d 347, 348 (Mo.App.1994). " '[B]ecause of the trial court's unique position for determining the credibility, sincerity, character, and other intangibles of the witnesses, we presume awards of custody are made in the best interests of the children.' " Flathers, 948 S.W.2d at 471 (quoting Gismegian v. Gismegian, 849 S.W.2d 201, 202 (Mo.App.1993)). This court will not disturb the trial court's determination of custody unless it is manifestly erroneous and the welfare of the children demands a different result. In re Marriage of Douglas, 870 S.W.2d 466, 469 (Mo.App.1994).

Section 452.375.2, RSMo Cum.Supp.1997, lists eight factors for the trial court to consider in determining custody in accordance with the best interests of the children. These eight factors are:

(1) The wishes of the child's parents as to his custody;

(2) The wishes of a child as to his custodian;

(3) The interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child's best interests;

(4) The child's adjustment to his home, school, and community;

(5) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and the parent or other family or household member who is the victim of domestic violence from any further harm;

(6) The needs of the child for a continuing relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;

(7) The intention of either parent to relocate his residence outside the state; and

(8) Which parent is more likely to allow the child frequent and meaningful contact with the other parent.

Father contends that the trial court did not consider the third, fourth, sixth, and eighth factors in awarding primary physical custody of the children to Mother. However, where the trial court was not requested to and did not make specific findings regarding these factors, this court is "entitled to presume that the trial court considered all the evidence and made its award in the best interests of the child." Flathers, 948 S.W.2d at 471.

Father asserts that he was the primary caregiver for the children prior to the separation. He testified that after the family moved to Blue Springs, he took care of the children in the mornings. He also offered the testimony of an employee of the children's daycare center who testified that Father picked up and delivered the children to and from daycare 85% of the time. Father points out that Mother even testified that Father was the primary caregiver for the children 50% of the time.

That Father was an equal participant in raising the children does not establish that the trial court erred in awarding primary physical custody to Mother. Moreover, the fact that Father cared for the children in the mornings and took the children to and from daycare was more a matter of necessity than choice, and was only for the period when Mother worked at the Overland Park Wal-Mart store. For that job, Mother had to leave for work at 6:15 a.m., and worked until at least 5:00 p.m., and sometimes until 12:00 a.m. or 1:00 a.m. In contrast, Father did not have to be at work until 4:00 p.m.

Even though Father did not have to be at work until 4:00 p.m., he took the two younger children to daycare between 9:15 and 9:30 a.m., after their oldest child left for kindergarten. When Mother transferred back to the Blue Springs Wal-Mart, she and Father set up a system in which Father would watch the children during the day before he went to work. Father disagreed with this arrangement. He testified that the youngest child, Ashlee, enjoyed going to daycare and the persons at the daycare center enjoyed having her there, and it was easier to keep the children in daycare full time rather than to try to find a baby-sitter in an emergency. Additionally, Father believed that the children needed to be taught basic skills and could learn more at daycare than they could staying home with him, even though he has a teaching degree and was employed as a teacher before becoming a police officer. After a week of having the two younger children at home with him during the day, Father decided to put the middle child, Tyler, back in daycare to develop his social skills with females. This evidence does not support Father's assertion that he was the children's primary caregiver.

Father also argues that he should be awarded primary physical custody of the...

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    ...gift or inheritance. However, Missouri courts have found facts other than when the debt was incurred to be relevant. In Hicks v. Hicks, 969 S.W.2d 840 (Mo.App.1998), the above definition was stated and followed where a husband was required to pay one-half of a wife's student loan incurred d......
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