In re Marriage of Harris

• Decision Date: 28 January 2005
• Docket Number: No. 26027.,26027.
• Citation: 154 S.W.3d 456
• Parties: In re the MARRIAGE OF Teresa A. HARRIS and Duane W. Harris, Teresa A. Harris, Petitioner-Respondent, v. Duane W. Harris, Respondent-Appellant.
• Court: Missouri Court of Appeals

154 S.W.3d 456

In re the MARRIAGE OF Teresa A. HARRIS and Duane W. Harris,

Teresa A. Harris, Petitioner-Respondent, v. Duane W. Harris, Respondent-Appellant.

No. 26027.

Missouri Court of Appeals, Southern District, Division Two.

January 28, 2005.

Edward D. Hoertel, Rolla, MO, for appellant.

Daniel P. Card II, Jefferson City, MO, for respondent.

JEFFREY W. BATES, Chief Judge.

The judgment dissolving the marriage of Duane Harris ("Father") and Teresa Harris ("Mother") awarded each of them joint legal and physical custody of their daughter, Brittany Harris ("Brittany"). Father appeals from the judgment and argues that reversal is required for two reasons: (1) the trial court erred by actually awarding physical custody of Brittany to Mother's parents, who were not parties to this proceeding; and (2) the trial court erred in not granting Father sole physical custody because Mother has denied visitation, she has deficient morals and mental health, and Father is a suitable physical custodian. We conclude that the trial court did not err in either respect and affirm its judgment.

I. Standard of Review

In this court-tried case, our review is governed by Rule 84.13(d).¹ Lee v. Hiler, 141 S.W.3d 517, 520 (Mo.App.2004). We must affirm the trial court's judgment unless it is not supported by substantial evidence, 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); Walters v. Walters, 113 S.W.3d 214, 217 (Mo.App.2003).² In assessing the sufficiency of the evidence, we examine the evidence and the reasonable inferences derived therefrom in the light most favorable to the judgment. In re McIntire, 33 S.W.3d 565, 568 (Mo.App.2000). When there is conflicting evidence, it is within the trial court's discretion to determine the credibility of the witnesses, and accept or reject all, part, or none of the testimony it hears. In re Marriage of Eikermann, 48 S.W.3d 605, 608 (Mo.App.2001). We defer to the trial court's assessment of witnesses' credibility and accept the trial court's resolution of conflicting evidence. K.J.B. v. C.A.B., 883 S.W.2d 117, 121-22 (Mo.App.1994). Because a trial court is vested with considerable discretion in determining custody questions, an appellate court should not overturn the trial court's findings unless they are manifestly erroneous and the child's welfare compels a different result. In re C.N.H., 998 S.W.2d 553, 557 (Mo.App.1999). "We will not substitute our judgment for that of the trial court so long as credible evidence supports the trial court's beliefs." A.B.C. v. C.L.C., 968 S.W.2d 214, 219 (Mo.App.1998). We presume the trial court awarded custody in the child's best interests based upon the court's superior ability to assess the credibility of the witnesses, along with their character, sincerity, and other intangibles not completely revealed by the record. In re Marriage of Sisk, 937 S.W.2d 727, 730 (Mo.App.1996); Baker v. Baker, 923 S.W.2d 346, 347 (Mo.App.1996). Greater deference is given to a trial court's decision in matters involving child custody than in any other type of case. In re D.M.S., 96 S.W.3d 167, 171 (Mo.App.2003).

II. Facts and Procedural History

The case was tried in September 2003. A summary of the favorable testimony supporting the judgment is set forth below.

Father and Mother were married in Phelps County, Missouri, in 1988. That same year, they moved to Jefferson City, Missouri. Their only child, Brittany, was born in 1993. Father is a union sheet metal worker. Mother became a school teacher in 1997 and was employed by the public school system in California, Missouri. She earned a Master's degree in school administration in 2000. Brittany attended a public school kindergarten; thereafter, she attended only Christian schools.

Father drank every day, and his drinking became excessive during the latter stages of the marriage. Father also had a violent temper and often subjected Mother to physical and mental abuse after coming home and drinking. Father's physical violence included placing Mother in a chokehold and attempting to push her over a stairway banister, while Brittany and her maternal grandmother were watching, because Father was upset about money he thought Mother had stolen from him. Father also threatened to pound Mother into the ground with his fists and bury her in his parents' back yard. For a time, Father slept with a gun beside his bed. On two occasions, Mother was forced to leave the family home because of Father's abusive behavior. The first time, Mother spent the night at a motel with Brittany and Brent, Mother's child from another relationship. On another occasion, Mother spent one and a half weeks in a shelter for abused women. As a result, Father began disabling Mother's automobile so she couldn't leave home to avoid arguing with him.

When Father was being physically and mentally abusive to Mother, she took the children and locked them in another bedroom at the family home. She stayed awake all night because she was afraid of what Father might do. In 2001, Mother locked herself and Brittany in a bedroom to get away from Father. Father broke down the door, which missed Brittany's head by inches as it was falling, because Mother refused to continue arguing with him.

As a result of this last incident, Father and Mother separated in June 2001. Father continued to reside in Jefferson City. Mother and Brittany moved back to Rolla to live with Mother's parents, Larry and Wanda Thornhill ("the Thornhills"). Brittany attended school at the Northgate Christian Academy in Rolla. Mother was hired as a teacher in the Rolla public school system.

In June 2002, Mother filed a petition for legal separation in the Circuit Court of Phelps County, Missouri. In Mother's proposed parenting plan, she sought sole legal and physical custody of Brittany. Father filed an answer and a counter-petition requesting a dissolution of their marriage. In his proposed parenting plan, he requested that the parties be awarded joint legal and joint physical custody of Brittany. His alternating parenting plan proposed that Brittany: (1) spend every other week with Father in Jefferson City and attend Beacon Christian Academy while in Father's custody; and (2) spend every other week with Mother in Rolla and attend Northgate Christian Academy while in Mother's custody. A week before trial, however, Father submitted a revised parenting plan requesting primary physical custody of Brittany.

For the first year after the parties separated, there were several occasions when Father had no contact with Brittany. For example, after Father's Day in 2001, he did not visit or telephone Brittany for six weeks. Father did not establish a pattern of regular visitation with Brittany until after Mother obtained an ex parte order of protection against Father that permitted periods of supervised visitation. Thereafter, Father did regularly exercise his visitation rights. This included overnight visits, weekend visitation and a two-week period of visitation during the summer at Father's home in Jefferson City.

Mother encouraged Brittany to visit her Father, but the parties experienced problems with visitation on three occasions. The first time, Brittany was sick with strep throat. The second time, Father's visitation time was reduced — with his acquiescence — from seven days to two days during the 2003 spring break so Brittany could take a trip to Branson, Missouri, with her grandparents. On each of these occasions, Mother attempted to reschedule make-up visitation. Her efforts were unsuccessful because Father was unwilling to take Brittany at the alternate times proposed. He told Mother that it did not fit into his schedule. On the weekend after spring break, however, Father came to Rolla unannounced to pick Brittany up for a weekend of make-up visitation. When Mother refused to turn Brittany over to Father, he summoned the police. The police declined to intervene, and Father was not permitted to take Brittany for the weekend.

In July 2003, Mother quit teaching in order to pursue a Ph.D. degree in Psychology at Indiana State University ("ISU") in Terre Haute, Indiana. Mother commuted from Rolla to Terre Haute to attend college.³ At the time of trial in September 2003, she was taking three classes each week at ISU: one on Mondays and two on Wednesdays. Mother left Rolla on Sunday evening and returned on Wednesday evening each week when school was in session. While in Terre Haute, she stayed in a small apartment she rented by the week. When Mother was attending school, her parents took care of Brittany. As of September 2003, Mother had three semesters of class work left on her Ph.D. program. At the conclusion of her class work, she intended to do her internship and write her dissertation in Missouri.

After hearing testimony from Mother and Father in the courtroom, the trial judge questioned Brittany in chambers outside the presence of her parents. Brittany was nine years old at the time of trial. She was a 4th grader at Northgate Christian Academy in Rolla. Brittany described school as "fun" and liked learning and making good grades. She had been on the honor roll since starting school in Rolla as a second-grader. Brittany liked living with the Thornhills "very much." When Mother was attending school in Indiana, she did not see Brittany as often. Brittany did occasionally stay with Mother at the apartment in Terra Haute. The judge elicited the following testimony from Brittany concerning Mother's absences from home to attend school:

Q. Okay. Do you miss your mom when she's in Indiana when she's up there at school and you're not with her?

A. Yes.

Q. Do you miss your dad when you're not with him?

A. No.

Q. Do you wish you could spend more time with your dad?

A. No.

Q. Do you wish you could spend the same amount of time with your dad?

A. Yes.

Brittany also testified that she often saw Father...