In re Marriage of Wood

• Decision Date: 27 August 2008
• Docket Number: No. SD 28767.,SD 28767.
• Citation: 262 S.W.3d 267
• Parties: In re the MARRIAGE OF Kimberly WOOD and James Wood. Kimberly Wood, Petitioner-Respondent, v. James Wood, Respondent-Appellant.
• Court: Missouri Court of Appeals

262 S.W.3d 267

In re the MARRIAGE OF Kimberly WOOD and James Wood.

Kimberly Wood, Petitioner-Respondent, v. James Wood, Respondent-Appellant.

No. SD 28767.

Missouri Court of Appeals, Southern District, Division Two.

August 27, 2008.

Joseph Aubuchon of Union, MO, for appellant.

Justin E. Head of Union, MO, for respondent.

DON E. BURRELL, Presiding Judge.

James Wood ("Husband") appeals the judgment dissolving his marriage to Kimberly Wood ("Wife"). Husband raises ten points of alleged error. Two of Husband's points concern the classification and distribution of Wife's pension plan and will be addressed together. Husband's other points will be addressed in the order presented. Finding no merit in any of Husband's contentions, we affirm the judgment.

I. Facts

There were two children born of the marriage who remained minors (ages thirteen and nine) at the time of the dissolution. Both Husband and Wife sought joint legal custody, but each claimed the children should reside primarily with them.¹ Neither party's pleadings made any allegation of child abuse or neglect. The judgment ultimately issued by the trial court granted the parties joint legal custody and awarded Wife "primary and sole physical custody of the children, subject to [Husband]'s rights of temporary custody and visitation."² The judgment also ordered Husband to pay Wife $360.00 per month in child support. The judgment did not include any factual findings detailing the relevant factors the trial court considered in making its custody determination and neither party requested any written findings of fact. The trial court calculated its own Form 14 in determining the presumed amount of child support. Additional facts necessary to the disposition of the case are included below as we address Husband's specific allegations of error.

II. Standard of Review

In general, the standard of review in a dissolution of marriage case is the same as that used for any other court-tried case; the trial court's judgment will be affirmed unless it is not supported by substantial evidence, is against the weight of the evidence, or misapplies or erroneously declares the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Other standards of review that apply to specific issues or findings will be addressed within our discussion of the points to which they apply. When reviewing a dissolution decree, we view the evidence in the light most favorable to the decision, In re Marriage of Taylor, 244 S.W.3d 804, 808 (Mo.App. S.D.2008), and the party challenging the decree "has the burden of demonstrating error." Elrod v. Elrod, 192 S.W.3d 738, 740 (Mo.App. S.D.2006). "We defer to the trial court's credibility determinations" and it is free to believe or disbelieve all, part, or none of any witness' testimony. In re Marriage of Dolence, 231 S.W.3d 331, 333-34 (Mo.App. S.D. 2007). Finally, because no request for written findings on controverted facts was made on the record prior to the introduction of evidence, the trial court is considered to have made findings consistent with the result reached. Rule 73.01(c).³

III. Analysis

Issue 1: Child Custody— Guardian ad litem

For his first point, Husband alleges the trial court erred in not sua sponte appointing a guardian ad litem. Under section 452.423.2, RSMo Cum.Supp.2005, a trial court must appoint a guardian ad litem when child abuse or neglect is alleged. "For purposes of section 452.423, child `abuse' is defined as `any physical injury, sexual abuse, or emotional abuse inflicted on a child ... by those responsible for his care, custody and control, except ... discipline including spanking, administered in a reasonable manner.'" Sewell-Davis v. Franklin, 174 S.W.3d 58, 66 (Mo.App. W.D.2005) (quoting Rombach v. Rombach, 867 S.W.2d 500, 504 (Mo. banc 1993)). "Neglect" occurs when those responsible for the proper care, control, and custody of a child fail to provide "the proper or necessary support, education as required by law, nutrition or medical, surgical, or any other care necessary for [the child's] well-being." Rombach, 867 S.W.2d at 504.

As previously noted, none of the parties' pleadings contained any such allegations. In fact, Husband's counsel toward the end of the trial explicitly stated: "I know that a guardian is mandatory when abuse or neglect is alleged, and we don't have those facts. So I don't feel that a guardian is mandatory ..." In spite of this statement at trial, and the absence of any allegations of abuse or neglect in the parties' pleadings, Husband now argues certain evidence presented at trial constituted an allegation of child abuse or neglect such that the trial court should have sua sponte appointed a guardian ad litem.⁴ As support for this claim, Husband relies on trial testimony indicating that: 1) on rare occasions, Wife swore at the minor children; 2) on one occasion, Wife brought the children to her office at night and left them there alone while she went to a bar; 3) Wife had some kind of rat or mice poison in her attic; 4) Wife's house may have been messy on at least one occasion; and 5) Wife would leave the children home alone, knowing that a sex offender lived next door.

While several of these behaviors would be unlikely to appear in a manual of suggested parenting techniques, the trial court did not abuse its discretion by failing to sua sponte appoint a guardian ad litem when this testimony was adduced. The type of conduct Husband now asserts as abuse or neglect is less serious than conduct appearing in other cases where abuse or neglect were held not to be shown. See Id. at 502 (husband swore at wife in front of children, called his daughter a "fat little pig," poured a glass of water on one of his sons when he was throwing a temper tantrum, did not take the children to the hospital as quickly as wife thought appropriate after injuries had occurred, allowed a child to play soccer when the child had poison ivy, pushed, grabbed and spoke harshly to the children in an attempt to get them in his vehicle, and aimed his vehicle at one of the children to indicate he would run the child over if he didn't get in the car); Holmes v. Holmes, 878 S.W.2d 906, 911-12 (Mo.App. E.D.1994) (when son attempted to intervene in a fight between husband and wife, husband pushed son down the stairs; daughter was hit in the head by a swinging door when husband was chasing her; husband hit daughter with a belt while daughter was visiting him); Dent v. Dent, 965 S.W.2d 230, 235-36 (Mo.App W.D.1998) (wife removed children from pre-school, failed to take daughter to a dental appointment, consumed alcohol in the home, failed to take her prescribed anti-depressant medications, had poor housekeeping habits, frequented bars, failed to pay her utility bills—resulting in her gas being turned off—and improperly disciplined the children and failed to keep them clean). Husband's first point is denied.

Issue Two: Child Custody—Best Interests Determination

Husband next argues the trial court erred in failing to consider all evidence relating to the best interests of the children. Section 452.375.2 requires the trial court to "determine custody in accordance with the best interests of the child." In making that determination, the trial court is directed to a non-exclusive list of factors that must be considered. Section 452.375.2.

Husband argues the trial court failed to consider evidence that Wife lives next door to a registered sex offender. At trial, Wife testified she lived one house away from a convicted sex offender and that she would occasionally leave the children home alone without supervision. Although Husband claims the trial court arbitrarily disregarded this evidence, he cites to nothing in the record or judgment that would support his claim. Our review of the transcript and judgment also discloses nothing to indicate the trial court failed to consider certain evidence. As earlier noted, Husband did not request findings of fact pursuant to Rule 73.01(c) and the trial court made no specific finding as to how Wife living next door to a convicted sex offender affected its determination of the appropriate custody arrangements for the children. "All fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached." Rule 73.01(c); Shepard v. Shepard, 47 S.W.3d 412, 417-18 (Mo.App. S.D.2001). Husband's second point is denied.

Issues Three & Five: Property Division—Wife's Retirement Account

For his third point, Husband claims the trial court wrongfully failed to make a determination as to whether Wife's retirement account was marital or separate property. His fifth point argues that the trial court erred in finding that Husband and Wife were married on September 24, 1998, because the evidence showed the couple was actually married ten years earlier (September 24, 1988). Husband claims the marriage date error was significant because it hindered a correct calculation of when marital assets began to accrue. The only specific asset Husband claims was so affected, however, was Wife's retirement account. Specifically, Husband states the incorrect date "would throw into serious error a correct calculation of when the marital portion of [Wife's] pension began to accrue, had the trial court made a determination of whether the pension was marital or separate."

Section 452.330 sets forth a two-step process for trial courts to follow when dividing property in a dissolution case. The trial court is to first determine and set aside to each spouse their own non-marital property, then justly divide the remaining marital property and debts. Section 452.330; In re Marriage of Michel, 142 S.W.3d 912, 920 (Mo.App. S.D.2004). As a part of this process, the trial court is required to make specific findings of fact as to what assets are subject to division as marital property and what assets are considered non-marital and thereby not subject to division....