Horton v. Horton

• Decision Date: 02 December 1997
• Docket Number: No. WD,WD
• Citation: 961 S.W.2d 67
• Parties: Leland Ray HORTON, Respondent, v. Linda Sue HORTON, Appellant. 53958.
• Court: Missouri Court of Appeals

Page 67

961 S.W.2d 67

Leland Ray HORTON, Respondent, v. Linda Sue HORTON, Appellant.

No. WD 53958.

Missouri Court of Appeals Western District.

Submitted July 10, 1997.

Decided Dec. 2, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 3, 1998.

Allan B. Turner, Chillicothe, for appellant.

Dana J. Macoubrie, Chillicothe, for respondent.

Before SMART, P.J., and LOWENSTEIN and LAURA DENVIR STITH, JJ.

SMART, Presiding Judge.

Linda Sue Horton appeals from a decree dissolving her marriage to Leland Ray Horton She contends that the trial court erred in awarding primary physical custody of the parties' child to Leland Horton She also contends the court erred in denying her motion that Leland Horton pay her attorneys' fees. The judgment of the trial court is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Linda Sue Horton ("Mother") and Leland Ray Horton ("Father") were married December 24, 1981. The only child of the marriage, Kelly Rae Horton, was born November 24, 1986. Mother and Father separated on April 18, 1996. Mother moved out of the marital home, where the family had lived since 1993, taking Kelly with her. Both Father and The evidence at trial indicated that both Mother and Father were conscientious, capable parents. Among the items mentioned by Father in his request for primary physical custody was a suggestion that he should receive primary physical custody because the marital home (which he was to receive under the property settlement) was the one that Kelly had lived in for the three years prior to the separation.

Mother sought custody of Kelly in the subsequent dissolution proceeding. At the time of the dissolution, both Mother and Father were employed. Father was a self-employed auto mechanic. Mother worked as a human resources clerk at Wire Rope Corporation.

The trial court awarded joint legal custody of Kelly to Mother and Father. Primary physical custody was awarded to Father. The trial court stated that it found both parents "totally satisfactory." The court noted that the mother separated from the family home without explanation.

The court adopts the proposition that if one parent departs the family home for unexplained reasons, all other things being equal, the nondeparting parent should have custody of the child. To do otherwise would require the court to resort to very subtle and necessarily subjective distinctions. Second, the child's life will be disturbed by the breakup of the marriage but she will be least disturbed by remaining in the family home, which both sides agree the father is to receive. Third, the mother suggests, by virtue of her proposed decree that she may change her residence from this community. While this is not a pivotal consideration, it does deserve some consideration. The father has an established business and has lived in the community during the entire life of the child. The child has attended school in this community all of her life. Again, it would be least disturbing to the child if she could continue her schooling in a familiar school and have the companionship and comfort of her friends.

The trial court did not award Mother attorneys' fees. Mother appeals the trial court's award of custody to Father and refusal to award her attorneys' fees.

CUSTODY

Mother claims that the trial court erred in awarding Father primary physical custody of Kelly. Mother contends that the trial court's judgment was against the weight of the evidence, was based on a misapplication of the facts and the law, and was not in the best interest of the minor child. Mother contends that there was no evidence that her decision to take Kelly with her when she left the marital home was not agreed to by the parties. She also contends that there was no evidence that her living arrangements were not suitable or that Kelly was not well-adjusted at both home and school. She further claims that there is no evidentiary support for the trial court's decision.

There is no one rule that can be applied to determine the outcome of a custody case. Replogle v. Replogle, 903 S.W.2d 551, 554 (Mo.App.1995). Every case has its own distinctive features and must be reviewed in light of its own unique set of facts. Id. Review of this court tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We must affirm the decision of the trial court unless it is against the weight of the evidence, there is no substantial evidence to support it, or it erroneously declares or applies the law. Id. Although we are guided by the standards of Murphy v. Carron in reviewing court-tried cases, it is also true that we give greater deference to the trial court's decision in child custody decisions than in other matters. Leone v. Leone, 917 S.W.2d 608, 613 (Mo.App.1996). Section 452.375.2, RSMo 1994 ¹ directs that the trial court determine custody of the child considering all relevant factors, including those listed in that section. ²

The undisputed evidence before the court below was that both parents were well qualified to serve as primary physical custodians of Kelly. The parents did not seek joint physical custody, but instead each parent sought primary physical custody. The trial court made a decision between two parents he saw as well-qualified.

The greater deference we give to trial courts in custody decisions is especially appropriate where the evidence in the record does not preponderate in favor of either party as custodian. In such cases, the reviewing courts have been very reluctant to reverse the trial court. See Gulley v. Gulley, 852 S.W.2d 874, 876 (Mo.App.1993); In re Marriage of Shepherd, 588 S.W.2d 174, 176-77 (Mo.App.1979); Brand v. Brand, 441 S.W.2d 750, 754-55 (Mo.App.1969). Here, there is no dispute that both parents were satisfactory as custodians.

Mother argues that, in view of the fact that all other things were equal, the trial court erred by awarding primary physical custody to Father, because Mother had custody during the separation, and there was no evidence that Mother performed unsatisfactorily as Kelly's custodian during the separation. In effect, Mother would have us create a presumption in favor of the parent who had actual physical custody during the separation.

As support, Mother cites Wakili v. Wakili, 918 S.W.2d 332 (Mo.App.1996), and Nowels v. Nowels, 637 S.W.2d 163 (Mo.App.1982), two decisions affirming awards of custody to parents who had enjoyed custody during separation. In both cases, the appellants argued that the custody orders were not supported by substantial evidence. ³ In both cases, the court held that evidence that the physical custodians during separation had been entirely satisfactory was substantial evidence supporting custody awards to those parents. Wakili, 918 S.W.2d at 343; Nowels, 637 S.W.2d at 165. Neither case establishes any type of presumption in favor of the prior custodial parent. If anything, these cases simply confirm the rule that an appellate court will not disturb an award of custody unless the record shows that the child's welfare requires a different disposition. ⁴

While we agree that the fitness of the parent who was custodian during separation is one of many relevant factors in a determination of custody during a dissolution proceeding, there is no presumption in favor of the prior custodial parent. To recognize such a presumption would be tantamount to treating an award of custody in dissolution as a "modification" of a prior court order entered after a full hearing on the merits. This is precisely what we refused to do in Replogle v. Replogle, 903 S.W.2d 551, 556 (Mo.App.1995).

In Replogle, the appellant made much the same argument as Mother makes in the present case, contending "[t]he underlying general rule is that if you have custody and are getting along well, there is no reason to upset a working relationship." Id. We rejected this proposition, pointing out that by requiring the noncustodial parent to demonstrate a change in circumstances, the appellant effectively had confused an initial custody award in a dissolution decree with a motion to modify. Id. We again refuse to create a presumption in favor of the prior custodial parent.

Mother alleges that the factors the trial court expressly mentioned in support of its custody award were irrelevant or unsupported by the evidence, and that the trial court's decision consequently lacked any factual or legal support. The trial court justified its decision to award Father primary custody on three grounds: (1) Mother had left the family home without offering an explanation; (2) both parents agreed that Father was to receive the marital home; and (3) Mother's proposed custody decree contemplated the possibility of her departure from the community in which Kelly had lived since birth.

However close a custody case is, it must be resolved according to relevant principles under the law. The fact that either custody award would be justified by the evidence should not protect an order that was the produced entirely by serendipity, individual caprice, or consideration of other irrelevant facts. At the same time, we do not wish to discourage trial courts from explaining in writing their custody orders, especially in close cases such as this. It is clear to us that this trial court took pains to break this tie by considering facts that it believed to be relevant to Kelly's best interests. That it had difficulty finding any such facts proves only that both parents were found well qualified to be Kelly's primary physical custodian.

In a custody case where all other relevant factors are equally balanced, the departure of one parent from the family home without any explanation will often be pertinent. It is not necessarily so in this case. In this case, Father and Mother mutually agreed prior to dissolution that Mother was to take temporary primary physical custody of Kelly and leave the marital home. We do not know the factors affecting that decision. At...