In re Marriage of Parmenter

• Citation: 81 S.W.3d 234
• Decision Date: 22 July 2002
• Docket Number: No. 24359.,24359.
• Parties: In re the MARRIAGE OF Olivia J. PARMENTER and Richard G. Parmenter. Olivia J. Parmenter, Petitioner-Appellant, v. Richard G. Parmenter, Respondent-Respondent.
• Court: Missouri Court of Appeals

81 S.W.3d 234

In re the MARRIAGE OF Olivia J. PARMENTER and Richard G. Parmenter.

Olivia J. Parmenter, Petitioner-Appellant, v. Richard G. Parmenter, Respondent-Respondent.

No. 24359.

Missouri Court of Appeals, Southern District, Division Two.

July 22, 2002.

COPYRIGHT MATERIAL OMITTED

Betty A. Pace, Springfield, for appellant.

Steven Privette, Willow Springs, and Kelly Michael Bosserman, Springfield, for respondent.

PHILLIP R. GARRISON, Presiding Judge.

Olivia J. Parmenter ("Wife") appeals a Judgment and Decree of Dissolution of Marriage terminating her nine-year marriage to Richard G. Parmenter ("Husband"). In its decree, the trial court awarded them joint legal custody of their daughter, B.O.P., who was then nine years old, it awarded primary physical custody to Husband, and it awarded Wife temporary custody at specified times. The trial court also ordered Wife to pay Husband $156 per month as child support.

On this appeal, Wife raises issues concerning the sufficiency of the trial court's findings relating to child custody; its order that she pay child support; and the awarding of primary physical custody of their child to Husband. We remand in part with directions.

As with other court-tried cases, we must affirm a decree in a dissolution case unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law or unless it erroneously applies the law. Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991).¹ We are to defer to the trial court's determinations of credibility, viewing the evidence and permissible inferences therefrom in the light most favorable to the decree and disregarding all contrary evidence and inferences. In re Marriage of Perkel, 963 S.W.2d 445, 447 (Mo.App. S.D.1998). This is because credibility of witnesses and the weight to be given their testimony is a matter for the trial court, which is free to believe none, part, or all of the testimony of any witness. Id.

In her first point on appeal, Wife contends that the trial court failed to enter a detailed written parenting plan in violation of Sections 452.375.9 and 452.310.7.² Section 452.375.9 provides, inter alia, that "[a]ny judgment providing for custody shall include a specific written parenting plan setting forth the terms of such parenting plan arrangements specified in subsection 7 of section 452.310." Section 452.310.7 sets out the arrangements that must be covered in every parenting plan detailing custody, visitation, and residential time, as well as, the specific factors which must be included in detailing how the decision-making responsibilities will be shared by the parents.

The trial court did not adopt either of the parenting plans submitted by Husband or Wife. In its judgment, it ordered that the parties have joint legal custody; that Husband would have primary physical custody; and that Wife would have temporary custody at specified times. The judgment did not, however, provide for: (1) school holidays; (2) Mother's Day and Father's Day; (3) the times and places for transfer of B.O.P. between the parties in connection with the residential schedule; (4) a plan for sharing transportation duties associated with the residential schedule; (5) appropriate times for telephone access; (6) suggested procedures for notifying the other party when a party requests a temporary variation from the residential schedule; (7) any suggested restrictions or limitations on access to a party and the reasons such restrictions are requested. Likewise, with reference to legal custody, the judgment did not provide for how the decision-making rights and responsibilities would be shared concerning (1) extracurricular activities, including a method of determining which activities the child will participate in when those activities involve time during which each party is the custodian; (2) child care providers, including how such providers will be selected; (3) communication procedures including access to telephone numbers as appropriate; (4) a dispute resolution procedure for those matters on which the parties disagree or in interpreting the parenting plan; (5) how the expenses of the child, including child care, educational and extraordinary expenses as defined in the child support guidelines, will be paid including the specific matters referenced in Section 452.310.7(3)(a)-(f).

Because the judgment failed to contain all of the prerequisites for a parenting plan required by Sections 452.375.9 and 452.310.7, the case must be remanded to the trial court with directions to prepare a parenting plan in compliance with those statutory provisions. Bridgeman v. Bridgeman, 63 S.W.3d 686, 692 (Mo.App. E.D.2002); Brandow v. Brandow, 18 S.W.3d 584, 587, 589 (Mo.App. W.D.2000); Hollins v. Hollins, 13 S.W.3d 669, 674 (Mo.App. E.D.2000).

In her second point, Wife contends that the trial court erred in failing to make written findings, pursuant to Section 452.375.6, as to the relevant factors that caused the trial court to enter its custody order and as to why it was in the best interest of B.O.P. Section 452.375.6 provides that if 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 based on the public policy in subsection 4 of that statute and each of the factors listed in the subdivisions of subsection 2 of the statute "detailing the specific relevant factors that made a particular arrangement in the best interest of the child." Likewise, it provides that "[i]f a proposed custodial arrangement is rejected by the court, the court shall include a written finding in the judgment or order detailing the specific relevant factors resulting in the rejection of such arrangement."

In this case, both parties submitted proposed parenting plans, neither of which were adopted by the trial court. Instead, the trial court arrived at its own custody arrangements in the judgment, but failed to make the findings required by Section 452.375.6. Under such circumstances, the case must be remanded to the trial court to make the findings required by Section 452.375.6. See Brandow, 18 S.W.3d at 588.

Wife contends in her third point that the trial court erred because the judgment provided that Husband would have "primary physical custody" of B.O.P. "in that the present law is when a parent is awarded substantial time periods with a minor child, the parents share `joint physical custody'; and RSMo. 452.375.5(1) and (2) state that the residence of one of the parents shall be designated as the address of the child for mailing and educational purposes which was not specified in the judgment."

Section 452.375.1(3) provides:

"Joint physical custody" means an order awarding each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents. Joint physical custody shall be shared by the parents in such a way as to assure the child of frequent, continuing and meaningful contact with both parents.

Wife argues, in this point, that she was effectively awarded significant periods of time during which B.O.P. is to reside with or be under her care and supervision, and that consequently, the statement in the judgment that Husband was awarded primary physical custody and that she was awarded temporary custody was in error. In supporting that conclusion, she points to the fact that her "temporary custody" was on the second full weekend and the last full week of each month, all of the time during the summer school vacation except for the second full weekend and the last full week during that time, and that she and Husband are to alternate having B.O.P. on her birthday and on major holidays.

Wife's rights with reference to B.O.P. are essentially like that in Nix v. Nix, 862 S.W.2d 948, 950 (Mo.App. S.D.1993), where we said that based on Section 452.375.1 the court had actually awarded joint physical custody to the parents. See also Tracy v. Tracy, 961 S.W.2d 855, 859 (Mo.App. S.D. 1998); Francka v. Francka, 951 S.W.2d 685, 689 (Mo.App. S.D.1997); Morton v. Stockdale, 888 S.W.2d 362, 363 n. 1 (Mo. App. S.D.1994); Rinehart v. Rinehart, 877 S.W.2d 205, 207 (Mo.App. S.D.1994); In re Marriage of Johnson, 865 S.W.2d 412, 415 (Mo.App. S.D.1993); Ibrahim v. Ibrahim, 825 S.W.2d 391, 396 (Mo.App. S.D.1992). As pointed out by Wife, the characterization of the custody as joint physical custody versus visitation determines the standard under which motions to modify are determined. Babbitt v. Babbitt, 15 S.W.3d 787, 791 (Mo.App. S.D.2000); Nichols v. Ralston, 929 S.W.2d 302, 304 (Mo.App. S.D.1996). Based on these authorities, and the plain language of Section 452.375.1, the trial court's award of physical custody was actually an award of joint physical custody to Husband and Wife.³ Consistent with this, on remand, the trial court should enter an amended decree designating the physical custody as joint, and, pursuant to Section 452.375.5(1), designating the residence of one of the parents as the address of the child for mailing and educational purposes.

In her fourth point, Wife contends that the trial court erred in ordering her to pay child support of $156 per month, "which is not provided for under the mandatory child support guidelines in that there was only one Form 14 entered as evidence showing that the correct amount of child support was $108.00; therefore, when the trial court ordered [Wife] to pay $156.00 per month as child support, it was required to prepare its own Form 14 and show the calculations which were used to enter the child support order."

Wife filed a Form 14 at trial demonstrating that the presumptive correct child support to be paid by her was $108. At the close of the evidence, Wife's attorney offered her Form 14, and Husband's attorney requested leave to...