Malawey v. Malawey

• Decision Date: 29 June 2004
• Docket Number: No. ED 83571.,ED 83571.
• Citation: 137 S.W.3d 518
• Parties: Christopher MALAWEY, Respondent, v. Stephani MALAWEY, Appellant.
• Court: Missouri Court of Appeals

137 S.W.3d 518

Christopher MALAWEY, Respondent, v. Stephani MALAWEY, Appellant.

No. ED 83571.

Missouri Court of Appeals, Eastern District, Division One.

June 29, 2004.

Jon F. Althauser, Union, MO, for appellant.

Richard B. Dempsey, Washington, MO, for respondent.

MARY R. RUSSELL, Judge.

Stephani Malawey ("Mother") appeals from the judgment dissolving her marriage to Christopher Malawey ("Father"). She asserts three points on appeal. First, she alleges the trial court erred in awarding "primary physical and legal custody" of the minor children to Father. She asserts that the custody determination was incorrectly based on her financial status, and she argues that the trial court incorrectly denominated the custody award as "primary." Second, she argues the trial court erred in not awarding her retroactive child support. Lastly, she asserts that the trial court erred in ordering her to pay child support because it incorrectly rebutted the presumed child support amount by considering Supplemental Security Income ("SSI") payments received on behalf of her minor child. We agree with Mother that the custody award was incorrectly denominated as "primary." We modify the nomenclature of the custody judgment pursuant to Rule 84.14, and all other aspects of the custody determination are affirmed. We further affirm the trial court's denial of retroactive child support. We reverse the trial court's child support award because we find the court erred in rebutting Mother's presumed child support amount, and we modify the child support award pursuant to Rule 84.14.

Father and Mother were married four years and had two children during their marriage. At the time of trial, J.M.M. was three years old and J.L.G.M. was almost two years old. J.L.G.M. has been diagnosed with cerebral palsy and requires occupational and physical therapy.

Father is employed by Coca-Cola Corporation. The trial court found that his gross monthly income is $1895. Mother was unemployed at the time of trial and had no income. She was receiving a monthly SSI payment of $552 for J.L.G.M.'s cerebral palsy. She was 20 years old at the time of dissolution, had only an eighth-grade education, and was on medication for bi-polar disorder. The trial court found that she would "have a difficult time obtaining appropriate full[-]time or part[-]time employment." Both parties sought child support from the other if awarded custody.

Father and Mother shared custody during their separation. Father had custody on his days off from work, Monday through Thursday. Mother had custody at all other times. This custody arrangement was altered at some point during the separation because Father refused to return custody to Mother. Mother was able to regain custody through a writ of habeas corpus. The court's judgment indicated that Father and Mother both sought "primary" physical custody of the children, and it further noted that neither party was interested in a joint legal custody arrangement.

The court found that "it [was] not appropriate to award joint legal or physical custody to the parties." The court also found it was in the children's best interest to award "primary legal and physical custody" to Father, with visitation to Mother. The court adopted the parenting plan of the children's guardian ad litem with some minor changes. The judgment provided that Mother "shall continue to receive the SSI benefit for the parties' child" and that she shall pay Father $352 per month in child support based on her receipt of the SSI benefit. She timely filed her notice of appeal.

The standard for reviewing a judgment of dissolution is the same for reviewing any court-tried action. Breihan v. Breihan, 73 S.W.3d 771, 774 (Mo.App. 2002). We will affirm the judgment of dissolution 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. We will not retry this case, but rather we accept as true the evidence and reasonable inferences therefrom in the light most favorable to the verdict and we disregard all contradictory evidence and inferences. Id. We defer to the trial court's superior ability to judge factors such as credibility, sincerity, character of the witnesses, and other intangibles not revealed in the transcript. Id. The trial court may accept or reject all, part, or none of witnesses' testimony. Id.

We presume the trial court reviewed all the evidence and awarded custody in view of the children's best interests. Abernathy v. Meier, 45 S.W.3d 917, 922 (Mo.App.2001). We give the trial court greater deference in child custody proceedings than in other matters. Id. This court will not disturb a child custody award unless we are firmly convinced that the children's welfare requires some other disposition. Id.

Mother's first point challenges the award of "primary legal and physical custody" to Father. She contends that the trial court incorrectly based its custody determination on her financial condition, and she argues that consideration of her financial condition was in error because her financial status would have been improved had she been awarded child support. Her first point also asserts that the court erroneously denominated the custody arrangement as giving Father "primary legal and physical custody."

We first address Mother's assertions that she was denied custody for financial reasons. Mother is correct in asserting that Missouri law prohibits a trial court from giving preference in awarding custody based on a party's financial status. Section 452.375.8 RSMo 2000.¹ Financial status should never be the basis for removing custody from a parent. Baker v. Baker, 923 S.W.2d 346, 348 (Mo.App.1996).

Mother argues that the following statement from the trial court's judgment reveals that it based its decision on her financial status: "[Mother] did not describe a realistic plan to prevent [the foreclosure on her home] or to pay monthly bills and expenses so that she could provide a stable home for the children. This failure is a significant factor in the decision to award primary custody to [Father]." Although this statement involves issues related to Mother's finances, it is not indicative that her financial status was the determinative factor in the court's decision to award custody to Father. Read in context, the trial court's judgment clearly expresses concern about Mother's ability to manage her finances, not her lack of resources. The judgment expresses the court's concerns that Mother did not have a "realistic plan" to prevent foreclosure on her home and that she would "have a difficult time obtaining ... employment." The court's judgment illustrates that the court's concern was providing the children a "stable home."

Other factors the court considered in awarding custody to Father were as follows: "[Mother] has cancelled or not scheduled several of the required visits" for J.L.G.M.'s occupational and physical therapy; Father does not work during J.L.G.M.'s therapy appointment times; and Mother has no telephone, but Father has a beeper and telephone that can be used to arrange J.L.G.M.'s appointments.

We find no merit in Mother's assertions that the trial court erred in granting custody to Father because it based its custody award on Mother's financial condition.

We next address Mother's argument that the trial court erred in granting Father "primary legal and physical custody" of their children.

Mother initially asserts that the court erred in entering this custody order because it found that the temporary custody arrangement during the separation was in the children's best interest, but then altered that arrangement in the parenting plan ordered in the dissolution. The judgment states that the temporary custody arrangement allowed both parents "significant contact with both children," but nothing in the judgment indicates that the court intended the temporary arrangement to continue after the dissolution. The judgment clearly expresses the court's findings "that it is not appropriate to award joint legal and physical custody to the parties" and that "[i]t would be in the best interest of the parties' minor children... for primary legal and physical custody to be awarded to [Father]."

Mother next asserts that court erred in granting Father "primary legal and physical custody" because "primary custody" does not exist under Missouri law. We agree that the court erred in denominating the custody arrangement as "primary."

Section 452.375.1(1) defines child "custody" under Missouri law as "joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof." Mother argues that the physical custody arrangement in this case should be titled "joint physical custody" because she is granted significant custodial periods with the children. She further argues that the legal custody arrangement intended by the court is unclear because the court titled it as "primary," rather than "joint" or "sole."

We first address the physical custody arrangement. The designation of physical custody as joint physical custody, rather than sole or primary physical custody with visitation rights for the other parent, is significant in that it determines the standard for future modification of the physical custody arrangement. LaRocca v. LaRocca, 135 S.W.3d 522, 525 (Mo.App. 2004) (citing Baker v. Welborn, 77 S.W.3d 711, 717 (Mo.App.2002)). A visitation award can be modified whenever modification would serve the children's best interests. Section 452.400.2. Modification of a custody decree, however, requires the court to find a change has occurred in the circumstances of the child or the custodian that necessitates modification to serve the children's best interests. Section 452.410. Further, designation as a joint physical custodian can have intrinsic value for a parent who believes a stigma attaches when the other parent is named the primary or...