In re Marriage of Bottorff

• Decision Date: 10 May 2007
• Docket Number: No. 27587.,27587.
• Citation: 221 S.W.3d 482
• Parties: In Re the Marriage of Terri BOTTORFF and William Jason Bottorff. Terri Bottorff, Petitioner-Respondent, v. William Jason Bottorff, Respondent-Appellant.
• Court: Missouri Court of Appeals

221 S.W.3d 482

In Re the Marriage of Terri BOTTORFF and William Jason Bottorff Terri Bottorff, Petitioner-Respondent, v. William Jason Bottorff, Respondent-Appellant.

No. 27587.

Missouri Court of Appeals, Southern District, Division Two.

May 10, 2007.

Austin L. Mitchell, Salem, MO, for appellant.

Emily Woodward, Legal Services of Southern Missouri, Rolla, MO, for respondent.

GARY W. LYNCH, Judge.

William Jason Bottorff ("father") appeals the trial court's judgment dissolving his marriage with Terri Bottorff ("mother"). Father challenges the judgment's custodial provisions for the parties' four minor children as not being supported by statutorily required findings of fact and the child support amount as being in excess of his ability to pay. We affirm.

1) Factual and Procedural Background

Mother originally filed her petition for dissolution of marriage in this case in 2002. Father filed a timely answer to the petition, but the case thereafter remained dormant until the parties separated for the final time on December 22, 2004. Father filed a counter-petition for dissolution in January 2005, and mother filed her first-amended petition in April of that year. The case was tried upon these pleadings, and a final amended judgment was entered on December 5, 2005 ("judgment").

Four children were born of the marriage, the oldest of which was seven years old at the time of the dissolution. The judgment granted the parties joint legal custody and joint physical custody of the children. Father was assigned specific times to exercise custody of the children, and mother was granted custody at all other times. Father's assigned times included 171 to 175 overnight visits per year. Thus, mother's periods of custody included 190 to 195 overnight stays per year.¹

The trial court specifically found the following. Mother's gross monthly income is $787.70, and her net monthly income is $720.00. Mother's total monthly expenses, including those expenses for the children while in her custody, are $1,510.00. Father's gross monthly income is $2,925.00, and his net monthly income is $2,280.00. His total monthly expenses, including expenses for the children while in his custody, are $1,806.00. Father has a health benefit and dental plan available to him for the children at a cost of $403 per month.

Based upon these findings, the trial court prepared its own Form 14, which resulted in a presumed child support amount of $872.00 per month. Finding that the application of the presumed child support amount as so calculated was "just and appropriate in the circumstances[,]" the trial court ordered father to pay child support in the amount of $872.00 per month to mother.

Father raises three points on appeal of the judgment. First, father argues that the trial court, in its written findings, did not properly discuss how the enumerated factors of § 452.375² were considered in making its physical custodial determinations. Second, father claims the trial court failed to state in its written findings the factual basis for not granting him a greater amount of custodial time. Lastly, father disputes the amount of child support awarded.

2) Points I and II — Lack of Written Findings

Father's first two points raise essentially the same issue. In the first, father contends that the trial court did not set forth in the judgment how the relevant factors it considered in determining the custodial arrangement supported its custodial determination. In the second point, father alleges that the trial court failed to state in the judgment the factual basis for not granting him more custodial time.³ In essence, father claims that the trial court erred by insufficiently describing in the judgment the basis leading it to conclude that the particular custodial arrangement set forth in the judgment was in the best interest of the children, as required by § 452.375.6.

Courts are required to determine custody based on the best interests of the child. § 452.375.2. As a guide for making that determination, § 452.375.2 lists eight relevant factors for the court to consider. Id. If the parties cannot agree to a parenting plan, then under § 452.375.6, the court is required to include a written finding in its judgment detailing which specific relevant factors listed in § 452.375.2 it found controlling in determining that the custodial arrangement ordered by the court is in the best interest of the child. § 452.375.6. Likewise, if the court rejects a proposed custodial plan, it is also required to make a finding "detailing the specific relevant factors resulting in the rejection of such arrangement." Id. Because the parties in the case at bar could not agree to a custodial plan and each submitted a proposed parenting plan, both of which the court rejected, the court was required to issue written findings in its judgment related to each rejected plan and the court-ordered plan. Id.

Rule 78.07(c)⁴ provides that "[i]n all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review." Rule 78.07(c) (emphasis added). Therefore, father was required to file in the trial court a motion to amend the judgment in order to preserve for review his claims that the trial court did not adequately discuss in its written findings how the factors listed in § 452.375.2 related to its final custodial determination, and that the trial court did not state the factual basis for not granting him more custodial time. Rule 78.07(c); In re Holland, 203 S.W.3d 295, 301 (Mo. App.2006). The record before us is void of any indication that father filed a motion to amend the judgment raising these claimed deficiencies in the language of the judgment as related to the statutorily required findings under § 452.375.6. Father's counsel during oral argument candidly admitted that no such motion was filed by father.⁵ Without such a motion, father failed to preserve his claims of error, and thereby waived them. Id. at 302; Wilson-Trice v. Trice, 191 S.W.3d 70, 72-3 (Mo. App.2006).

During the reply portion of his oral argument, father raised for the first time⁶ his request that we exercise our discretion under Rule 41.06 to determine that the application of Rule 78.07(c) would work an injustice in this case and, therefore, should not bar our review of his claims. This rule provides that:

Rules 41 to 101, inclusive, shall govern all proceedings in actions brought after their effective date, and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the Rules take effect would not be feasible or would work injustice, in which event the former procedure applies.

Rule 41.06 (emphasis added).

In support of his request, father cites us to Tipton v. Joseph-Tipton, 173 S.W.3d 692 (Mo.App.2005). In Tipton, the mother challenged the lack of required findings mandated by § 452.375.6 in the custody judgment entered by the trial court on December 22, 2004. Tipton, 173 S.W.3d at 693. The court noted that the amendment to Rule 78.07(c), which added the phrase "including the failure to make statutorily required findings," became effective on January 1, 2005. Id. Also, before the entry of the judgment, the trial court informed the parties of its decision by docket entry, in response to which the father filed a motion advising the court of its obligation to make the required findings in its forthcoming judgment. Id. Although the trial court still retained jurisdiction over the judgment pursuant to Rule 75.01 on January 1, 2005, when the amended Rule 78.07(c) became effective, so that the mother had the opportunity to file a motion to amend the judgment as required by the amended Rule 78.07(c), the court determined that:

Nonetheless, the circuit court's failure to act on [father's] warning that necessary findings of fact needed to be added to its judgment causes us to conclude that, had [mother] filed a motion to amend the judgment to include the missing findings of fact, the circuit court would have ignored it, too.

Id. at 694. Under these circumstances, the court concluded that the application of Rule 78.07(c) would work an injustice and, therefore, pursuant to Rule 41.06, the amended Rule 78.07(c) should not be applied to bar appellate review of the failure to make the statutorily required findings. Id.

The only similarity between the instant case and Tipton is that both cases were pending on January 1, 2005, the effective date of the amended Rule 78.07(c). Unlike Tipton, in the instant case, the pleadings upon which the case was tried were all filed after January 1, 2005, all discovery took place after that date, the trial occurred well after that date, and the judgment in question was entered almost a year after that date. Also, in the case at bar, there is nothing in the record to indicate that any party brought to the trial court's attention its obligation to make the findings required by § 452.375.6. In addition, father has failed to articulate how he was placed in a disadvantageous position attributable to the occurrence of the effective date of the amended Rule 78.07(c) while this case was pending. In other words, he is in the same position now as if this case had been filed on or after January 1, 2005, in which event the exception contained in Rule 41.06 would not have been applicable. For these reasons, the case at bar is clearly distinguishable from Tipton. Because the filing of father's counter-petition, the filing of mother's first amended petition, discovery, the trial of the case, and the entry of the judgment — essentially the litigation of the entire case — occurred after January 1, 2005, we do not perceive any injustice inuring to father as a result of amended Rule 78.07(c) becoming effective while this case was...