Jessen v. Jessen
| Decision Date | 30 September 2014 |
| Docket Number | No. WD 76482.,WD 76482. |
| Citation | 450 S.W.3d 425 |
| Court | Missouri Court of Appeals |
| Parties | Jamy L. JESSEN, Appellant, v. Aaron J. JESSEN, Appellant. |
Robert Walter Wheeler, Keytesville, MO, for appellant.
Michele Christinia Puckett–Burkhead, Cameron, MO, for respondent.
Before Division Two: VICTOR C. HOWARD P.J., JAMES E. WELSH, ANTHONY REX GABBERT, JJ.
Jamy L. Jessen (“Mother”) appeals the circuit court's judgment modifying the decree of dissolution. Mother raises four points on appeal. First, Mother argues that the circuit court erred because the judgment decree failed to follow all of the announced points of the oral agreement made on the record in open court. Second, Mother argues that the circuit court erred in finding Mother in contempt of court because (1) her conduct was to protect her children and not to directly disobey the court order; (2) the police placed the two children in her custody after a violent episode on June 7, 2011 by Aaron J. Jessen (“Father”); (3) the children did not have contact with the Stepfather; and (4) the decree came nine months after the hearing of April 24, 2012, violating § 517.111, RSMo 2000. Third, Mother argues that the circuit court erred in awarding Father attorney's fees and requiring her to pay the remaining GAL fees because the evidence suggests that there is no justification for requiring her to pay the attorney's fees or GAL fees. Fourth, Mother argues that the circuit court erred in its order correcting judgment because Father had not even filed a motion asking for the relief granted. We affirm in part and dismiss in part.
The marriage between Father and Mother was dissolved on January 26, 2007. During the marriage, Father and Mother had two daughters. The original dissolution decree awarded Father and Mother joint legal and physical custody of their two children. The parties were to alternate physical custody with Father ordered to pay Mother child support.
On May 19, 2010, the decree was modified. While both Father and Mother were again awarded joint legal and physical custody of their two children, Father's address was to be designated for mailing and educational purposes. Mother was to pay child support and the two children were to attend school in the school district where Father resided.
On April 14, 2011, Mother filed a motion to modify dissolution decree and a motion for temporary custody pendent lite. Father filed an answer and counter motion to modify and motion for contempt, alleging, in part, that Gary Brown (“Stepfather”) had contact with the two daughters, which was specifically prohibited in the modified judgment.
On June 7, 2011, Mother failed to return the two daughters to Father. After failing to return the children, Father filed a writ of habeas corpus to return the two children to him.
On August 25, 2011, the hearing for custody, attorney's fees, GAL fees, contempt, and the writ of habeas corpus was commenced.1 The court moved the custody hearing and the determination of attorney's fees and GAL fees to a later date. On the other issues, the court found Mother in contempt finding that Stepfather had contact with the two daughters which was prohibited by the modified judgment. The court also found that Mother had the two children since June 7, 2011, which was against the terms of the modified judgment. The court ordered the two children be returned to Father immediately.
On April 24, 2012, the hearing on the issues of custody, attorney's fees, apportionment of the GAL fee, and any sanctions for having previously found Mother in contempt was commenced. After the morning break, a partial agreement between the parties was entered in open court. The only remaining points for the court to decide were (1) the amount of child support Mother is to pay and when such payments are to begin; (2) how the GAL fee is to be apportioned; (3) who is to pay attorney's fees; (4) what sanctions, if any, are to be ordered against Mother for having previously been found in contempt; and (5) who is to pay court costs.
The court ordered, in part, that Mother is to pay the remaining $1,600 GAL fee and $3,018.75 for a portion of Father's attorney's fees. Both of these were sanctions for Mother's contempt. The court also ordered, in accordance with the parties' agreement, that Mother is to have six weeks of parenting time in the summer with the two children.
Mother then filed a motion to correct the judgment and a motion for a new trial. On May 22, 2013, a hearing on Mother's two motions was commenced. After listening to a portion of the April 14, 2012 hearing, the court amended its judgment. The court amended its previous judgment to reflect that the two parties waived their right to appeal the issues presented to the court for its determination. The judgment was also amended to specify that the six weeks of Mother's summer parenting time would be the first and second weeks of June and August and the second and third weeks of July.
On June 4, 2013, Father filed a motion for attorney's fees pending appeal. The court awarded Father $3,500 in attorney's fees pending an appeal. Mother appeals.
In her first point on appeal, Mother argues that the circuit court erred in the entry of its judgment decree and in its ruling following the motion to correct judgment because both decisions failed to follow all of the announced points of the oral agreement made on the record in open court. Specifically, Mother contends that the judgment decree failed to include (1) family counseling by clinical psychologist Richard Taylor and any recommendations by Taylor must be followed; (2) cost of family counseling to be shared equally between Mother and Father; (3) Father is not to pay for the counseling of Stepfather; (4) issues of attorney's fees, child support, and sanctions for contempt are presented to the court; (5) both sides waive the ability to appeal court's decision on child support, attorney's fees, and allowing of GAL fees. We find no error.2
In judge tried cases, “the decree or judgment of the trial court will be sustained by the appellate court 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.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is against the weight of the evidence with caution and with a firm belief that the decree or judgment is wrong.” Id. (internal quotations omitted).
First, neither the judgment decree nor the modification stated anything about family counseling from Taylor. The record reflects, however, why the court did not include that the family be required to attend counseling and must follow any recommendations by Taylor. The court stated that it was Here, it is clear that the court did not include this part of the oral agreement because it did not approve of it. The court has the right to reject oral agreements made in open court. See Stelts v. Stelts, 126 S.W.3d 499, 502 (Mo.App.2004). Furthermore, as the judgment did not provide for family counseling, it would follow directly therefrom that the judgment would not include who was to pay for the family counseling.
Second, Mother argues that the decree failed to mention that Father is not to pay for Stepfather's counseling. After searching the record, we find nothing in the record that would suggest or imply that Father would pay for the Stepfather's counseling or that this was an issue brought before the trial court. We fail to see how the court erred in not including something that was not at issue in the case. “An appellate court will not, on review, convict a trial court of error on an issue which was not put before it to decide.” First Bank Centre v. Thompson, 906 S.W.2d 849, 859 (Mo.App.1995).
Finally, Mother argues that the court failed to state that the issues of attorney's fees, child support, and sanctions for contempt were presented to the court and that both sides were to waive the right to appeal these issues. While the court failed to put this in its judgment decree dated January 29, 2013, in its corrected judgment entered May 23, 2013, the court included this information. The entry stated, in pertinent part:
[W]ith the agreement including the waiver of appeal on the matters that were to be then taken under advisement, with those items to include who was to pay the attorney's fees, the amount of child support [Mother] was to pay and when such amount was to begin, how the GAL fee was to be divided, what sanctions for contempt, if any, were to be ordered against [Mother], and how costs of the action were to be taxed.
Thus, with this clearly on the record, the court did in fact note which issues were taken under advisement for it to decide and what issues the parties waived the right to appeal. Therefore, as the trial court has the right to reject oral agreements made in open court,3 the issue of which party was to pay Stepfather's counseling was not an issue before the court, and there is substantial evidence on the record regarding what issues the court heard and what issues the parties waived their right to appeal, we find that the trial court did not error. Point one is denied.
In her second point on appeal, Mother argues that the circuit court erred in finding Mother in contempt of court because her conduct was to protect her children and not to directly disobey the court order. Mother contends that police placed the two children in her custody after a violent episode on June 7, 2011 by Father. Mother further argues that the children did not have contact with the...
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Jessen v. Jessen, WD 76482.
...450 S.W.3d 425Jamy L. JESSEN, Appellant,v.Aaron J. JESSEN, Appellant.No. WD 76482.Missouri Court of Appeals, Western District.Sept. 30, Affirmed. [450 S.W.3d 427] Robert Walter Wheeler, Keytesville, MO, for appellant.Michele Christinia Puckett–Burkhead, Cameron, MO, for respondent. Before D......