Loumiet v. Loumiet

• Decision Date: 25 March 2003
• Docket Number: No. WD 61023.,WD 61023.
• Citation: 103 S.W.3d 332
• Parties: Lavonne M. LOUMIET, Appellant, v. James R. LOUMIET, Respondent.
• Court: Missouri Court of Appeals

103 S.W.3d 332

Lavonne M. LOUMIET, Appellant, v. James R. LOUMIET, Respondent.

No. WD 61023.

Missouri Court of Appeals, Western District.

March 25, 2003.

COPYRIGHT MATERIAL OMITTED

David G. Sperry, Kimberly Carlin, Independence, for appellant.

John W. Dennis, Jr., Michael J. Albano, Independence, for respondent.

Before NEWTON, P.J., and ULRICH and EDWIN H. SMITH, JJ.

EDWIN H. SMITH, Judge.

Lavonne M. Loumiet appeals from the dissolution judgment of the Circuit Court of Jackson County awarding, inter alia, her and the respondent, James R. Loumiet, joint physical and legal custody of their two minor children.

The appellant raises three points on appeal. In Point I, she claims that the trial court erred in awarding "primary residential custody" of the parties' minor children to the respondent because its requisite statutory finding in support of the award, that it was in the children's best interests, § 452.375.2,¹ was against the weight of the evidence in that the "[appellant] testified to a long history of emotional and domestic violence that had been inflicted upon her and the children." In Point II, she claims that the trial court erred in awarding physical custody of the parties' minor children because in doing so, it was required, but failed, to make the findings mandated by § 452.375.2(6) and § 452.375.13² in that the court found three separate incidents of domestic abuse by the respondent against the appellant. In Point III, she claims that "[t]he trial court erred in entering its judgment and decree of dissolution of marriage because the trial court's judgment and decree is against the case law in that the trial court's findings of fact on the record as to custody and maintenance award is antagonistic, inconsistent or contradictory."

Reversed in part and remanded, and dismissed in part.

Facts

The parties were married on March 8, 1985, in Independence, Missouri, and separated on May 5, 1999. Two children were born of the marriage, Jennifer, born December 8, 1985, and Joshua, born May 11, 1988. On May 18, 1999, the appellant filed a petition for dissolution of marriage in the Circuit Court of Jackson County. The respondent filed an answer to the appellant's petition and his cross-petition for dissolution of marriage on July 2, 1999. With respect to child custody, both parties asked the trial court to award them joint legal and sole physical custody.

The petition and cross-petition were heard by Family Court Commissioner Sherrill L. Rosen over four days on August 27, September 4, September 5, and November 2, 2001. At trial, evidence was introduced as to several instances where the respondent physically abused the appellant by shoving her and kicking her. There was also extensive evidence as to the appellant's immaturity and poor parenting skills. At the close of all the evidence on November 2, 2001, the case was taken under advisement.

Commissioner Rosen issued her "Findings and Recommendations" on January 8, 2002. On that same day, the Honorable Marco A. Roldan entered his judgment and order adopting Commissioner Rosen's findings and recommendations. The court's judgment dissolving the marriage ordered, inter alia, that the parties were to receive "joint legal and physical custody of the minor children ... with [the respondent's] residence designated as the children's for educational and mailing purposes." As to its award of custody, the court expressly found that there were three instances of abuse by the respondent against the appellant during the marriage, but did not find that there was a pattern of domestic violence.

This appeal follows.

Standard of Review

Our standard of review, as in other court-tried cases, is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Miers v. Miers, 53 S.W.3d 592, 595 (Mo.App.2001). As such, we must affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.

As to an award of child custody, the trial court is granted broad discretion, and its decision will be affirmed unless the appellate court is firmly convinced that the welfare of the child requires a different disposition. Stangeland v. Stangeland, 33 S.W.3d 696, 703 (Mo.App.2000). In reviewing an award of custody, we presume that all evidence was considered by the trial court. Id. In our review, we view the evidence in the light most favorable to the trial court's judgment. Id.

I.

In Point I, the appellant claims that the trial court erred in awarding "primary residential custody" of the parties' minor children to the respondent because its requisite statutory finding in support of the award, that it was in the children's best interests, § 452.375.2, was against the weight of the evidence. Specifically, she claims that the trial court's award of custody based upon a finding that it was in the children's best interests was against the weight of the evidence in that the "[appellant] testified to a long history of emotional and domestic violence that had been inflicted upon her and the children."

In order to clearly understand the appellant's claim in this point so that we can fully address it, we first must ascertain the precise aspects of the trial court's award of physical custody that she is attacking.³ In that regard, she claims that the court's award of "primary residential custody" was against the weight of the evidence. This characterization of the trial court's physical custody award gives us pause on two fronts: (1) § 452.375, governing "[c]ustody of children" in this state, makes no mention of primary residential custody; and (2) the trial court did not make an award of "primary residential custody" of the parties' minor children, but rather, awarded them "joint legal and physical custody of the minor children ... with Respondent's residence designated as the children's for educational and mailing purposes."

Section 452.375.1(1) defines "custody" as "joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof."⁴ "Joint physical custody" is defined as:

[A]n order awarding each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents. Joint physical custody shall be shared by the parents in such a way as to assure the child of frequent, continuing and meaningful contact with both parents.

§ 452.375.1(3). "Sole physical custody" is not defined. In light of that fact and given the definition of joint physical custody, it would seem logical then that joint physical custody would encompass any custodial arrangement in which both parents are awarded significant periods of time during which the child resides with or is under the care and supervision of each parent, and sole physical custody would encompass custodial arrangements in which one of the parents is not awarded significant periods of custodial time. Thus, the determining factor in classifying physical custodial arrangements as either joint or sole is whether the periods of physical custodial time awarded to the parents is deemed "significant."

What constitutes significant periods of custodial time for purposes of joint physical custody is not defined, but is apparently left for the trial court's determination. This, of course, could lead to identical physical custodial arrangements being categorized differently from trial court to trial court, in that a period of custodial time that is significant to one court might be deemed insignificant by another. While we can envision an award of physical custody to a parent that reasonably could not be classified as a significant period of custodial time, the fact that the trial court nonetheless classified its award as being joint physical custody would not be an error of any great consequence under our statutory scheme of child custody, except to the extent it could be successfully argued that in denominating its award of physical custody as joint, the trial court was duty-bound to award greater periods of custody to the complaining parent than was actually awarded. However, such an argument would be tantamount to the tail wagging the dog inasmuch as the court's designation of its award of physical custody should logically come only after it has determined the appropriate periods of custodial time to award. The approach suggested is logical in that the paramount issue for the court to determine in determining physical custody is what periods of time each parent should receive in carrying out the public policy of this state with respect to child custody and not what to call the arrangement after that task is completed. In addition, although the denomination of the physical custody that a parent is going to be awarded in a custody proceeding can have some intrinsic value to that parent in that he or she believes that some stigma attaches to a parent where the other parent receives sole physical custody in that it is an implicit indictment of the non-custodian's parenting skills, the ultimate concern should be what actual time the child will be residing with or under the care and supervision of the parent. Thus, it is logical that the periods of time each parent is to have custody of the child should drive the designation of the custodial arrangement as either joint or sole, and not the reverse.

As to other consequences, under the provisions of § 452.375, the designation of an award of physical custody as being joint or sole means little, except in the resulting denomination of the parent's status as a custodian and the denomination of the custody and visitation schedules in the approved parenting plan. In that regard, a physical custody arrangement denominated by the court as joint would result in each parent being properly referred to as "joint physical custodian" and the schedule setting...