Jones v. Jones

• Decision Date: 10 February 2009
• Docket Number: No. WD 69213.,WD 69213.
• Citation: 277 S.W.3d 330
• Parties: Christopher L. JONES, Appellant, v. Angela C. JONES, Respondent.
• Court: Missouri Court of Appeals

277 S.W.3d 330

Christopher L. JONES, Appellant, v. Angela C. JONES, Respondent.

No. WD 69213.

Missouri Court of Appeals, Western District.

February 10, 2009.

James A. Kessinger, Kansas City, MO, for Appellant.

Matt Chiasson, Kansas City, MO, for Respondent.

Before: JOSEPH M. ELLIS, Presiding Judge, JAMES M. SMART, JR., Judge and ALOK AHUJA, Judge.

JOSEPH M. ELLIS, Judge.

Christopher Jones ("Father" or "Husband") appeals from a judgment dissolving his marriage to Angela Jones ("Mother" or "Wife") and awarding joint legal and physical custody of their two minor children. He contends that the trial court erred in designating Mother's address as the children's for mailing and educational purposes, failing to split the income tax dependency deductions, assigning a value to the marital home that was unsupported by the record, and failing to consider the debts accumulated after the parties separated when distributing the marital assets and debts. For the following reasons, we remand in part, affirm in part, and reverse and remand in part.

Mother and Father were married on July 4, 2001, in Eureka Springs, Arkansas. They had two children together, Cassidy Faye Jones, born August 20, 2002, and Caleb William Jones, born May 24, 2005. Mother also has two teenaged children from a prior marriage, Ashley and Angela. In January 2006, Mother and Father purchased a home in Liberty, Missouri, where they lived together with all of the children. It appears that the family lived in North Kansas City prior to that time, as that is where Mother's older children attended school before they moved to Liberty.

Father filed a petition for dissolution of marriage on October 23, 2006, but he and Mother continued to live together for several months. In early December 2006, Mother and Father had a confrontation because Mother no longer wanted Cassidy and Caleb to go to the daycare that they had been attending since August 2006. Mother moved out with the children shortly thereafter. After living for a short time in a rental property in North Kansas City, then with her mother in Kansas City, Kansas, Mother moved into another house in North Kansas City on January 24, 2007, and she continued to live there with the children at the time of trial.

The parties attended three mediation sessions in January 2007 and came to an agreement on most issues. They arranged a substantially equal split of parenting time to work around both of their work schedules, which they continued to follow through the time of trial. They agreed that Father would pay child support in the amount of $613 per month, which was the presumed amount on the Form 14, and that they would split the child dependency income tax deductions. They did not agree on which school district the children would attend, Liberty or North Kansas City, and they each presented evidence as to the convenience and quality of each school district and their prior actions concerning Cassidy's schooling. The parties requested the court to order the parenting plan that they had agreed upon in mediation, with a few minor changes; order Father to pay to Mother the presumed child support amount of $613 per month and split the child dependency tax deductions; and designate whose address would be the children's for educational and mailing purposes in order to determine which school district the children would attend.

The parties divided up their personal belongings and household furnishings in a substantially equal manner, but they disagreed on whether several of their vehicles were marital or nonmarital and the value of the vehicles. They agreed that Father should be awarded the marital home, which was the primary asset in the marital estate, and that he should make an equalization payment to Mother, but they disagreed on the value of the home and the amount of the equalization payment. The parties had accumulated debt, some of which was incurred after the date of separation. They requested the court to determine the value of the vehicles and the marital home and to divide the marital property and debts in a just and equitable manner.

The case was tried to a commissioner on October 24, 2007, and the commissioner announced her findings on the record at the conclusion of trial. The commissioner subsequently issued her Judgment, Findings and Recommendations, and a judge approved and adopted them in full. The court dissolved the marriage, awarded Mother and Father joint custody of the children, approved the parenting plan that the parties had agreed upon in mediation with two minor changes, and designated Mother's address as the children's for educational and mailing purposes. The court also approved the child support amount agreed to by the parties, but it declined to split the child dependency tax deduction. Finally, the court assigned values to the marital assets and debts, awarded the marital home to Father and split the other assets and debts, and ordered Father to pay a $16,813 equalization payment to Mother within 60 days. Father filed a motion for new trial or, in the alternative, to amend the judgment or for a new hearing, which was denied. This appeal follows.

A judgment in a dissolution matter "will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law." Foraker v. Foraker, 133 S.W.3d 84, 92 (Mo.App. W.D.2004). We view the evidence in the light most favorable to the decree and disregard all contrary inferences and evidence. Garrison v. Garrison, 255 S.W.3d 37, 40 (Mo.App. W.D. 2008). We defer to the trial court's determinations regarding witness credibility. Foraker, 133 S.W.3d at 92. "A judgment will not be reversed unless it is against the weight of the evidence and then only with caution and a firm belief that the judgment is wrong." Hernandez v. Hernandez, 249 S.W.3d 885, 888 (Mo.App. W.D.2008). "The `weight of the evidence' refers to the probative value of the evidence and not the quantity of the evidence." Id.

Father brings three points on appeal. In his first point, he asserts that the trial court failed to issue statutorily required findings for the relevant best interest factors under § 452.375¹ before designating Mother's address as the children's for educational and mailing purposes, thereby precluding meaningful appellate review. He relies on Buchanan v. Buchanan, 167 S.W.3d 698 (Mo. banc 2005). Mother counters that the trial court's findings are sufficient because the parties agreed on joint custody and on the majority of the provisions of the parenting plan, including that Mother was to have the children during school hours except for every other Wednesday. She relies on Strobel v. Strobel, 219 S.W.3d 295 (Mo. App. W.D.2007).

The trial court awarded Mother and Father joint legal and physical custody and found that the parenting plan that the parties had agreed upon in mediation was in the best interests of the children, with two modifications. The court granted Father's request to change the Monday pickup time from 7:00 p.m. to 6:30 p.m. and Mother's request of one Sunday per month from 9:00 a.m. to 12:00 p.m. The court declined to grant Father's additional requests to change the pickup time on Fridays from 7:00 p.m. to 6:30 p.m. and to prohibit Mother from allowing her daughter to babysit the children.

The court also designated Mother's address as the children's residence for educational and mailing purposes, which meant that the children would be in the North Kansas City school district. The court did not enter any written findings concerning the best interest factors under § 452.375. The judgment states only that the parenting plan proposed by the parties "with the changes outlined above, is in the best interests of the children" and that "consistent with the Parenting Plan ..., and in the best interests of the children, the children should be placed in the joint legal and joint physical custody of the parties, with [Mother's] address designated for mailing and educational purposes."

In Buchanan, the parties agreed that they should have joint custody, but they disagreed on the designation of the child's residence and proposed different parenting plans. 167 S.W.3d at 699. The trial court adopted the mother's proposed parenting plan and assigned the mother's address to be used as the child's for educational and mailing purposes. Id. The court stated in its judgment that it found that the parties were able to cooperate and share decisions and that "the best interests of the said children will be served by granting the care, custody, and control jointly to [Father] and [Mother], as set forth in [Mother's proposed parenting plan]." Id. The Supreme Court reversed and remanded for entry of written findings under § 452.375.6. Id. at 698-99. The Court stated:

Determining custody and custodial arrangements of children in dissolution actions is one of the most important and most sensitive duties of the court. The legislature has mandated written findings detailing the specific relevant factors that made the chosen arrangement in the best interests of the child. Written findings are necessary unless the parties have "agreed to a custodial arrangement."

Id. at 702 (quoting § 452.375.6). The Court noted that the parenting plan and designation of the child's residence address were "sub-issues of custody" but held that, "[s]o long as any issue or sub-issue of custody is subject to contest between the parties and resolution by the court, written findings that include discussion of the applicable factors from section 452.375.2² are required." Id. (emphasis added); see also Schlotman v. Costa, 193 S.W.3d 430, 433 (Mo.App. W.D.2006) ("Even if the parties agree to the same custody designation, if the parties disagree on the residence address of the child or on the parenting plan, these are sub-issues of custody that require the trial court's resolution in the form of written findings.")

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