Marriage of Sisk, In re, 20276

• Decision Date: 01 November 1996
• Docket Number: No. 20276,20276
• Citation: 937 S.W.2d 727
• Parties: In re MARRIAGE OF Gary Joseph SISK and Sherry Pauline SISK. Gary Joseph SISK, Petitioner-Respondent, v. Sherry Pauline SISK, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 727

937 S.W.2d 727

In re MARRIAGE OF Gary Joseph SISK and Sherry Pauline SISK.

Gary Joseph SISK, Petitioner-Respondent, v. Sherry Pauline SISK, Respondent-Appellant.

No. 20276.

Missouri Court of Appeals,

Southern District,

Division One.

Nov. 1, 1996.

Application for Transfer to Supreme

Court Denied Nov. 25, 1996.

Shelly Madden, St. Louis, for respondent/appellant.

Kerry D. Douglas, Douglas, Lynch, Haun & Kirksey, P.C., Bolivar, for Guardian ad Litem.

Ralph W. Gilchrist, Bolivar, for petitioner/respondent.

PER CURIAM:

In its decree dissolving the marriage of Sherry Sisk ("Mother") and Gary Sisk ("Father"), the trial court awarded primary custody of their child to Father. On appeal, Mother contends (1) that the trial court's decision granting custody of the child to Father was against the weight of the evidence, (2) that the custody decision was entered in order to punish Mother, and (3) that the guardian ad litem ("GAL") failed to protect the best interests of the child. We affirm.

FACTS

Mother and Father were married on August 19, 1989, and their child was born on February 12, 1991. The parties separated in July 1993, and Father filed a petition for dissolution shortly afterward. A hearing for temporary child custody was held on October 26, 1993, at which time Mother informed the court for the first time that she suspected Father of sexually abusing their child. Pursuant to the mandate of § 452.423.1, ¹ a guardian ad litem was appointed by the court to protect the best interests of the child during the dissolution proceedings. Following the hearing, the court granted temporary custody to Mother and awarded Father designated periods of visitation.

The Division of Family Services (DFS) received a report of sexual abuse of the child in December 1993, and one month later, Father amended his dissolution petition to ask for custody. On February 1 and 2, 1994, DFS received two more reports of abuse, and following investigations of the allegations, which included a physical examination of the child, DFS concluded that no evidence existed to substantiate the child abuse charges.

On February 2, 1994, Mother took the child to Citizens Memorial Hospital because of "knife cuts" on the child's leg, and informed the physician that she suspected Father had caused them. Following an examination of the child, the physician concluded that the markings on the child's leg were "obviously only small scratches which looks [sic] like the child has actually just scratched his ankle." In his diagnosis, the physician noted that there was no clinical sign of child abuse, and concluded that there was "parenteral manipulation due to divorce proceeding."

Mother admitted the child to St. Luke's Hospital in St. Louis for assessment of possible sexual abuse on February 6, 1994, where he was confined for eight days. During that time he was under the care of Dr. McCallum, a psychiatrist, who indicated some concern that the child had been "inappropriately stimulated, but it is not clear whether the stimulation was a suggestion by the parents or real abuse." She concluded further that "[i]f any kind of custody is given, I think supervised visits with the other parent would be appropriate, and I would lean more towards supervised visits with the father, only because he is accused, but not because of any clear evidence that he has abused the child."

Following the child's discharge from the hospital, he attended outpatient play therapy sessions. During some of those sessions, the child disclosed to the play therapist that his Father hurt him, saying "Daddy hurts [child's] butt" and "Daddy hurts [child's] pee-pee." As a result of these disclosures, the therapist filed two separate reports of abuse to DFS, but DFS again concluded that no evidence existed to substantiate the allegations of abuse.

Following the trial in October and November 1994, the court ordered the child to remain in the temporary custody of Mother pending the final outcome of the case, and granted Father unsupervised visitation with the child. In December 1994, Mother failed to deliver the child to Father for visitation. Father claims that he has not seen his child since that time, nor does he know the whereabouts of Mother or his child. The judgment entered by the trial court on May 31, 1995, found that Father did not sexually abuse the child, awarded primary custody to Father and granted visitation rights to Mother. Mother appeals that judgment.

STANDARD OF REVIEW

The trial court's decree of dissolution must be affirmed if it is supported by substantial evidence, it is not against the weight of the evidence, and it neither erroneously declares nor applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In reviewing the record on appeal, "[w]e accept as true the evidence and inferences therefrom that are favorable to the trial court's decree and we disregard all contrary evidence." Chapman v. Chapman, 871 S.W.2d 123, 124 (Mo.App.E.D.1994).

"[A]n appellate court will not disturb a trial court's custody award unless it is manifestly erroneous and the welfare of the child requires some disposition other than that made by the trial court." In re Marriage of V.A.E., 873 S.W.2d 262, 266 (Mo.App.S.D.1994). We afford greater deference to the trial court's decision in child custody determinations than in other cases. Sinopole v. Sinopole, 871 S.W.2d 46, 47-48 (Mo.App.E.D.1993).

This court must presume the trial court awarded custody in the child's best interests, due to the trial court's superior position in judging the credibility of the witnesses, along with their character, sincerity, and other intangibles not completely revealed by the record. Id. at 48. The trial court is free to believe or disbelieve all, part or none of the testimony of any witness. In re Marriage of Campbell, 868 S.W.2d 148, 150 (Mo.App.S.D.1993).

POINT I

In her first point on appeal, Mother asserts that the trial court's judgment awarding custody of the child to Father was against the weight of the evidence and was an abuse of discretion.

Section 452.375.2 requires that custody decisions be made in accordance with the best interests of the child after considering all relevant factors, including eight which are specifically enumerated. The following are the required factors which are particularly relevant to this proceeding:

(3) The interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child's best interests;

....

(5) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and the parent or other family or household member who is the victim of domestic violence from any further harm;

(6) The needs of the child for a continuing relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;

....

(8) Which parent is more likely to allow the child frequent and meaningful contact with the other parent.

Mother argues that the allegations of sexual abuse against Father were supported by substantial evidence and, as a result, the trial court abused its discretion when it awarded him primary custody of the child.

At the trial, Mother called various witnesses in support of her contention that the child had been sexually abused by Father. For instance, she called her sister, her mother Father denied abusing the child. He presented evidence that the child had said that Mother told him to say the things he was reporting, that the records relating to the child's confinement in St. Luke's indicated "no sexual acting out," and he presented expert testimony that the child had not been sexually abused.

and her father to testify about behavior or verbalizations by the child which suggested sexual abuse. In addition, Dr. McCallum testified by deposition that, in her opinion, the child had received inappropriate sexual stimulation from Father, but she confirmed that a "Safe" examination was negative and admitted stating in her discharge summary that there was no clear evidence that Father abused the child. Mother also called a therapist who conducted play sessions with the child. The therapist testified that the child made statements suggesting sexual abuse, that she observed behavior consistent with abuse, and she recommended that Father not have unsupervised visitation.

After having the opportunity to observe the witnesses presented by Mother, the trial court found "that their testimony was unbelievable in numerous respects." Specifically, the trial court noted the following: Mother made no allegations of sexual abuse until October 26, 1993, which is significant considering the fact that Father did not see his child from July 23, 1993 (the date of separation) to October 28, 1993 ² (his first visitation period following the temporary custody hearing); the physician at Citizens Memorial Hospital suggested that the allegations of abuse were a result of manipulation by Mother; DFS had investigated five separate reports of abuse concerning the child, finding each time that there was no evidence to substantiate them; the deposition of Dr. McCallum was not believable, considering the fact that she had previously concluded when the child was discharged that there was no clear evidence of abuse and she had not examined the child since his release; statements made by the child to his play therapist suggesting abuse "lost their significance as they were made on two occasions immediately upon the child entering the room...