L.J.S. ex rel. A.C.H. v. F.R.S.

• Decision Date: 26 March 2008
• Docket Number: No. 28479.,28479.
• Citation: L.J.S. ex rel. A.C.H. v. F.R.S., 247 S.W.3d 921 (Mo. App. 2008)
• Parties: In re the Matter of L.J.S., by A.C.H., as next friend, and A.C.H., individually, Petitioner-Respondent, v. F.R.S., Respondent-Appellant.
• Court: Missouri Court of Appeals

247 S.W.3d 921

In re the Matter of L.J.S., by A.C.H., as next friend, and A.C.H., individually, Petitioner-Respondent, v. F.R.S., Respondent-Appellant.

No. 28479.

Missouri Court of Appeals, Southern District, Division Two.

March 26, 2008.

Susan S. Jensen, Springfield, for Appellant.

Luther H. Kemp, Rogersville, for Respondent.

Marion A. Adams, Springfield, for Juvenile.

NANCY STEFFEN RAHMEYER, Judge.

On May 2, 2005, Anthony Holt ("Father") filed an action to determine paternity of child, L.J.S., born on September 1, 2002, against Faith Simmons ("Mother"). At the January 26, 2007 trial, the court heard evidence and made determinations on the issues of legal and physical custody. Father's paternity was not contested. The trial court entered a judgment on April 9, 2007, which granted joint legal custody of the minor child to Mother and Father indicated the address of Mother shall be used for mailing and educational purposes for the child, ordered Father to pay $423 per month in child support, and granted joint physical custody with visitation¹ for Father on Tuesday overnight, alternate weekends, alternate holidays, and several weeks in the summer.

In three points, Mother argues that (1) the trial court erred in ordering joint legal custody because it was not supported by substantial evidence, (2) the trial court erred in ordering joint physical custody with unsupervised contact because the weight of the evidence indicated that supervised visitation was in the child's best interest, and (3) the trial court erred in refusing to award Mother a judgment of $3,768 in retroactive child support. This Court finds that the order for joint legal custody and joint physical custody with unsupervised contact was supported by the evidence and we find no abuse of discretion in the trial court's decision not to award the retroactive child support in the amount of $3,768.

Background

When L.J.S. was born, Mother and Father were approximately eighteen years old. Mother and Father had a relationship at the time of L.J.S.' birth and Father was present at the hospital when L.J.S. was born. Father is listed on L.J.S.' birth certificate and neither party contested paternity at trial. Shortly after L.J.S. was born, Father joined the military and Mother and Father ended their relationship. Prior to the relationship with Mother and Father ending, Father had regular visits with L.J.S. These visits continued after the parties ended their relationship until Father left for basic training in August of 2003. Father was in basic training until December of 2003; he was then sent to Korea in January of 2004 for one year; and when he returned to the United States he was based in Kentucky until August of 2006. During that time Father received several short periods of leave. The parties attempted to make plans for visitation when it was possible. Father had visitation with L.J.S. between five and eight times while he was in the Army, and had several additional visits after being discharged from active duty in August of 2006. In May of 2005, Father filed a petition to determine paternity against Mother. The trial was held in January 2007 after Mother, Father, and L.J.S. were evaluated by a court-appointed therapist. This appeal arises from the April 9, 2007 Judgment of that court.

Standard of Review

Mother's three points on appeal challenge the trial court's determinations regarding legal custody, physical custody with unsupervised visitation, and retroactive child support payments. Our review of this judgment is the same as that in any court-tried case; we must affirm the trial court's determination unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Abbott v. Perez, 140 S.W.3d 283, 290 (Mo. App. E.D.2004). "Substantial evidence is competent evidence from which the trial court could reasonably decide the case." Bauer v. Bauer, 38 S.W.3d 449, 455 (Mo. App. W.D.2001). We defer to the trial court's determinations regarding the credibility of witnesses. Patterson v. Patterson, 207 S.W.3d 179, 182 (Mo.App. S.D. 2006). In custody and visitation matters, we give even greater deference to the determinations of a trial court than we do in other civil cases. McCubbin v. Taylor, 5 S.W.3d 202, 206 (Mo.App. W.D.1999). The trial court has broad discretion in these matters and we presume that the court awarded custody in accordance with the child's best interest. Malawey v. Malawey, 137 S.W.3d 518, 522 (Mo.App. E.D. 2004). The decision of the trial court will be upheld unless we are firmly convinced that the welfare and best interests of the child require otherwise. Id.

Joint Legal Custody

The welfare of the child is the primary consideration in making custody orders. McCauley v. Schenkel, 977 S.W.2d 45, 50 (Mo.App. E.D.1998). The trial court's initial child custody determination must also be made after consideration of all the relevant factors, including eight specific statutory factors. See section 452.375.2(1)-(8).² The trial court is not, however, required "to do a complete `laundry list' of the statutory factors" under section 452.375.2(1)-(8). Foeste v. Foeste, 122 S.W.3d 698, 701 (Mo.App. E.D.2003). Instead, it must only address in detail those factors that it considered particularly relevant to its custody determination. Id.; Speer v. Colon, 155 S.W.3d 60, 62 (Mo. banc 2005). The decision should also be based on the public policy stated in section 452.375.4. Dunkle v. Dunkle, 158 S.W.3d 823, 833 n. 14 (Mo.App. E.D.2005).<sup>3</sup> "Imperative to the best interests of the child in a joint custody arrangement are `[t]he commonality of beliefs concerning parental decisions and the ability of parents to cooperate and function as a parental unit.'" Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991) (quoting Massman v. Massman, 749 S.W.2d 717, 720 (Mo.App. E.D. 1988)). If the parties are unable to communicate or cooperate and cannot make shared decisions concerning their children's welfare, joint legal custody is inappropriate. McCauley, 977 S.W.2d at 50.

Here, the trial court determined that placing L.J.S. in the joint legal custody of her parents was in the best interest of the child and specifically addressed that one of the most significant factors it considered was the likelihood of the custodial parent, Mother, to facilitate a meaningful relationship with the non-custodial parent. The court noted that it had concerns with both parents. The court saw "red flags" in Mother's testimony that affected its judgment, including how Mother referred to L.J.S. as "her" child and not "our" child and how Mother has said that she felt unsupervised visitation was out of the question. The court also noted its concern with the possibility of parental alienation syndrome,⁴ which could be caused by Mother's ill feelings toward Father. As to Father, the court noted that to be a successful parent Father would have to "step up to the plate" and prioritize his role as a father.

Although the court found fault with both parents, the resolution of conflicting evidence is left to the trial court. Miers v. Miers, 53 S.W.3d 592, 596 (Mo. App. W.D.2001). In this case, the trial judge ultimately decided that the faults of both parents would be minimized if they shared the responsibility of custody. On review of the evidence in this case, we find that this determination is based on the required statutory factors and is supported by the following substantial evidence.

Mindy Ellis, the court-appointed therapist, testified that L.J.S. wants to see Father, is not afraid of Father, and had no negative comments about her dad. Ellis also testified that any negative feelings L.J.S. had toward Father were in fact Mother's feelings that were shared with L.J.S. at some point. This transfer of feelings from Mother to daughter is what caused Ellis to be concerned with the possibility of parental alienation syndrome. Although Ellis testified that she would not diagnose L.J.S. with parental alienation syndrome at this time, if Mother's behavior was "not kept in check" that diagnosis could change. Ellis also met with Father and determined that he needed to go to parenting classes so that he could have a better understanding of how to discipline a child, and he needed to spend more time with L.J.S. so that he could build a relationship with her. Overall, Ellis found that L.J.S. would not be in any physical or emotional danger from being with Father. As to the relationship between Mother and Father, Ellis felt the relationship was not healthy, however, she recommended that the relationship could become better with individual counseling to help Mother and Father overcome their past.

Likewise, the guardian ad litem ("GAL"), appointed by the court, made a recommendation that Mother and Father should have joint legal custody. The GAL reported to the court that although Mother has some issues with Father, she believes those issues are looking back to the relationship they had in high school and it is likely that Father has changed so it will be possible for Mother and Father to participate in L.J.S.' life as a parenting unit.

There is ample evidence that Mother and Father will be able to build a better relationship. Both the GAL and Ellis testified that the strain in the Mother-Father relationship is likely based on who they were in high school. As four years have passed since they have spent any significant amount of time together, there is opportunity for change. Moreover, there is evidence from Mother and Father's testimony that in the past the two have successfully made decisions about L.J.S. and worked together to facilitate visitations. Father was able to visit L.J.S. five to eight times while he was in the military. These visits were organized, often on very short notice, by the parents without intervention from the court or other authority, indicating that both parties have in the past made an effort...