In Re The Marriage Of: Claire Noland-vance

• Decision Date: 23 August 2010
• Docket Number: No. SD 28699.,SD 28699.
• Parties: In re the Marriage of: Claire Noland-Vance and Brent Vance, Claire NOLAND-VANCE, Petitioner-Appellant, v. Brent VANCE, Respondent-Respondent.
• Court: Missouri Court of Appeals

321 S.W.3d 398

In re the Marriage of: Claire Noland-Vance and Brent Vance,Claire NOLAND-VANCE, Petitioner-Appellant,

v.Brent VANCE, Respondent-Respondent.

No. SD 28699.

Missouri Court of Appeals,Southern District,Division One.

July 30, 2010.

Motion for Rehearing or Reconsideration and Transfer Denied Aug. 23, 2010.

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Frederick G. Thompson, IV, Kansas City, MO, for Appellant.

Edward C. Clausen, Jefferson City, MO, for Respondent.

JEFFREY W. BATES, Judge.

In this dissolution action, the trial court determined that the marriage between Claire Noland-Vance (Mother) and Brent Vance (Father) was irretrievably broken and then decided issues relating to child custody, visitation, child support, division of marital property, attorney's fees and guardian ad litem (GAL) fees. In Mother's seven points on appeal, she challenges all of the trial court's decisions on the aforementioned issues other than the finding that the marriage was irretrievably broken. Finding no merit in any of Mother's allegations of error, we affirm the trial court's judgment.

I. Standard of Review

In this court-tried case, our review is governed by Rule 84.13(d). In re Marriage of Denton, 169 S.W.3d 604, 606 (Mo.App.2005). ¹ This Court 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); In re Marriage of Dolence, 231 S.W.3d 331, 333 (Mo.App.2007). 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). It is not this Court's function to retry the case. Souci v. Souci, 284 S.W.3d 749, 753 (Mo.App.2009). “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.” In re Marriage of Colley, 984 S.W.2d 163, 166 (Mo.App.1998). On appeal, we defer to the trial court's credibility determination. Souci, 284 S.W.3d at 753. “An appellate court exercises extreme caution in considering whether a judgment should be set aside on the ground that it is against the weight of the evidence and will do so only upon a firm belief that the judgment was wrong.” Simpson v. Strong, 234 S.W.3d 567, 578 (Mo.App.2007). The phrase “weight of the evidence” means its weight in probative value, rather than the quantity or amount of evidence. Nix v. Nix, 862 S.W.2d 948, 951 (Mo.App.1993). The weight of the evidence is not determined by mathematics, but depends on its effect in inducing belief. Id.

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). This Court presumes 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); In re Marriage of Berger, 950 S.W.2d 307, 310 (Mo.App.1997).

III. Discussion and Decision

Because of the number of different issues presented by Mother's appeal, the relevant facts will be presented in connection with our discussion of the points on appeal. These facts have been summarized in accordance with the above-described standard of review.

Point I

Mother and Father married in July 1986 and separated in early June 2005. Mother's petition for dissolution was filed on June 3, 2005. The case was tried on April 3-5, 2007. Six children were born of the marriage. Their names and ages as of the time of trial were: Elle, 19; Elise, 18; Deanie, 16; James, 14; John, 12; and Diane, 9 (hereinafter referred to collectively as the children and individually by their first names). ³ Until the parties' separation, the children lived in the family home in Jackson County, where they were home-schooled. After the separation, Mother moved with the children to her parents' home in Camden County. Mother is a licensed attorney who practiced sporadically during the marriage. As of the time of trial, she was employed as a real estate broker by Saaman KC LLC (Saaman) in Kansas City. This company was owned in part by Rand Setlich, Mother's paramour. Father was generally employed throughout the marriage. At the time of trial, he was working for the CoStar Group in Kansas City.

When Mother filed for dissolution, she alleged that Father had abused her and the children. In mid-June 2005, the trial court appointed J. Christopher Allen to represent the children as the GAL. After a hearing in July, the court entered a full order of protection enjoining Father from abusing or threatening to abuse, stalk or disturb Mother. The court also granted Mother temporary custody of the children and ordered Father to pay child support. The court further ordered the parties undergo psychological evaluations and allowed Father to visit the children only through supervised counseling sessions. ⁴ The court ordered the psychological evaluations to be conducted by Dr. Alan Aram (Dr. Aram) and the supervised counseling sessions to take place with Karen Harms (Harms) in Springfield, Missouri. Mother was ordered by the court to keep the GAL advised of the children's residential address and educational arrangements.

In the remaining months of 2005, Father's supervised visitation did not take place. Mother did not fully cooperate with either Harms or Dr. Aram. Mother also did not keep the GAL updated with the children's residential address and educational arrangements. In a January 2006 hearing, Mother took the position that she had not violated any of the court's orders. The trial judge, however, determined that Mother had violated the court's orders. The court again ordered Mother to cooperate with Dr. Aram and the GAL. The court also warned Mother that, if she did not cooperate with a newly selected psychologist in Kansas City to facilitate visitation, the court would transfer the case to juvenile court and have the three youngest children placed into foster care so that Father would have the opportunity to exercise his supervised visitation. Despite the court's warning, no supervised visitation took place in January, February or March 2006.

On March 28, 2006, the court held a hearing on Father's motion for visitation and temporary custody. ⁵ By this time, Dr. Aram had completed the court-ordered psychological evaluations of the parties and was called as a witness by Father's counsel. The following is a summary of his testimony. ⁶

Dr. Aram, a clinical psychologist who had been practicing since 1990, regularly performed court-ordered child custody evaluations. Dr. Aram had interviewed Father, Mother, Elle and James. The doctor also reviewed available records, including medical records; performed various diagnostic testing; and interviewed other individuals identified by the parties. Dr. Aram's written evaluation was admitted in evidence at the hearing.

With respect to Mother's allegations of abuse, Dr. Aram determined that there had been domestic abuse between Father and Mother. Dr. Aram was able to confirm that Mother had suffered a black eye once as a result of Father's abuse. Father acknowledged that his conduct had been reprehensible, and he obtained marital counseling after the incident. Dr. Aram also identified other isolated incidents of domestic abuse in which Mother had been the aggressor.

Dr. Aram found no credible evidence, however, that Father had physically abused the children. Although Mother and the children made such allegations, Dr. Aram noted that the children mentioned the same litany of facts as Mother and used phraseology similar to hers. ⁷ Dr. Aram also observed that Mother overstated or exaggerated facts to support her version of events that purportedly occurred. For example, Mother recounted an incident in which she claimed to have been paralyzed for a number of hours as a result of Father's abuse five or six years earlier. Her medical records for that time period, however, did not mention any such paralysis. Dr. Aram opined that Mother's allegations of child abuse were mistaken, but sincere. As a consequence of Mother's mistaken belief that abuse had occurred, she sincerely believed Father posed a danger to the children. Dr. Aram opined that Mother would do everything in her power to keep the children from Father “with a near religious zeal.” By doing so, Dr. Aram opined that Mother was emotionally abusing the children by alienating their affections for Father. Moreover, Mother's alienating behavior was constant and consistent. While Mother claimed to encourage the children to be loving and respectful toward Father, Mother admitted that she never said anything positive about Father to the children. ⁸ Similarly, neither Elle nor James had anything positive to say about Father, except that James did say that he wished his Father would “change.” Dr. Aram concluded that Mother's constant negativity towards Father, by berating him in front of the children and inciting their fear of him, had caused the children to suffer severe trauma....