Marriage of v. A, In re, 18492

• Decision Date: 08 February 1994
• Docket Number: No. 18492,18492
• Citation: 873 S.W.2d 262
• Parties: In re the Marriage of V______ A______ E______ and D______ A______ E______. V______ A______ E______, Petitioner-Respondent, v. D______ A______ E______, Respondent-Appellant, and J______ D______, Co-Respondent.
• Court: Missouri Court of Appeals

Page 262

873 S.W.2d 262

In re the Marriage of V______ A______ E______ and D______

A______ E______.

V______ A______ E______, Petitioner-Respondent, v. D______ A______ E______, Respondent-Appellant, and J______ D______, Co-Respondent.

No. 18492.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 8, 1994.

Opinion Denying Request to Amend Opinion March 2, 1994.

David G. Neal, Eminence, for respondent-appellant.

Frederick W. Martin III, West Plains, for petitioner-respondent.

CROW, Judge.

D______ A______ E______ ("Husband") appeals from a decree dissolving his marriage to V______ A______ E______ ("Wife"). He maintains the trial court erred in: (1) entering, without any change, the proposed decree submitted by Wife's lawyer; (2) awarding "custody" of the parties' two children to Wife; (3) granting him an insufficient "visitation schedule" with the children; (4) awarding Wife too great a share of the marital property; and (5) setting child support without adopting the computations of either party and without indicating how the amount was calculated.

Husband and Wife married June 2, 1984. The union produced two sons, born August 18, 1985, and June 9, 1987, respectively. The parties separated February 7, 1991.

On April 29, 1992, more than 14 months after the separation, Wife gave birth to a daughter. According to Wife, the daughter was sired by J______ D______ ("Paramour"). Paramour was joined as a party, and a guardian ad litem was appointed for the daughter.

Evidence was heard on two occasions, June 12, 1992, and August 14, 1992. At the time of the first hearing, Wife was age 26; Paramour was age 25. At the time of the second hearing, Husband was age 33.

Paramour testified he believes he is the daughter's father and informed the hospital of this when she was born.

Husband testified he had no sexual contact with Wife after the separation, hence he is not the daughter's father. Husband asked the trial court to declare Paramour the daughter's father.

The decree declares Wife and Paramour are the daughter's parents, awards Wife "custody" of the daughter, subject to "reasonable visitation rights" of Paramour, and orders Paramour to pay Wife $125.25 per month child support for the daughter. No appeal was taken by Wife, Paramour, or the daughter's guardian ad litem; therefore, the provisions of the decree regarding the daughter are unchallenged.

On the contested issues of division of marital property and "custody," "visitation" and child support for the sons, the trial court made no findings of fact or conclusions of law, none having been requested. In such circumstances, all fact issues are deemed found in accordance with the result reached. Rule 73.01(a)(2) ¹; In re Marriage of Swofford, 837 S.W.2d 560, 563 (Mo.App.S.D.1992); Irwin v. Irwin, 678 S.W.2d 861, 862 (Mo.App.W.D.1984). Accordingly, we accept as true the evidence and inferences from it favorable to the trial court's decree and disregard contrary evidence. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989).

Before the separation, the parties and their sons were living in a mobile home in Howell County. The parties bought it in 1990 (according to Wife) or 1989 (according to Husband). Wife and the sons continued residing there after the separation. They were still there, along with the daughter, at time of trial.

Sometime after the separation, Husband became pastor of a church in Taney County. At time of trial, he was residing in a mobile home near the church, owned by it and furnished to him free as a parsonage. The church pays Husband $500 per month, and he receives $100 per month from his father. In addition to his clerical duties, Husband was attending College of the Ozarks, expecting to receive a degree in May, 1993, with a major in psychology and a minor in theology.

At time of trial, Wife had just begun employment at a factory, earning $4.35 per hour for a 40-hour week. She testified she plans to marry Paramour, adding, "[W]e've already got our rings picked out and everything." Asked where they will live, Wife answered: "Right now, we plan on living in the mobile home because of the children. It's their home as well."

Paramour testified he plans to marry Wife after the dissolution. Asked where they will live, Paramour replied, "Well, if she gets the trailer in the divorce, I imagine we'd live there for a while, I guess."

Paramour is employed as a heavy equipment operator, having held that job three and a half years. He has a four-year-old child by a marriage that was dissolved in December, 1990. That decree requires him to pay his ex-wife $200 per month child support. At time of trial, Paramour was current on that obligation.

Further evidence will be set forth where relevant to particular assignments of error.

The trial court granted each side the opportunity to submit a proposed decree. According to the docket sheet, the deadline was September 4, 1992.

In their respective briefs, the parties acknowledge that the trial court entered the proposed decree submitted by Wife's lawyer, in toto. The docket sheet does not show the date Wife's lawyer submitted it, but the trial court filed it October 15, 1992.

Nothing on the docket sheet indicates Husband's lawyer tendered a proposed decree. However, attached to Husband's brief is a 14-page document identified by Husband as the proposed decree he submitted. It bears a filing stamp dated December 24, 1992, more than two months after the trial court entered the decree. One inference from this is that Husband's lawyer did not tender his proposed decree within the deadline established by the trial court.

Husband's first point asserts the trial court erred in entering the proposed decree submitted by Wife's lawyer in that "the judgment is so favorable to [Wife] and so damaging to [Husband] it shows the judge abandoned his judicial function in the trial process and ceased to be an impartial determiner of the facts and issues but deferred entirely to [Wife] and permitted her to fashion the decree as she wanted it and not based upon the evidence." In a measured understatement, Husband says, "The manner in which the Judgment was submitted, signed, and placed in effect does not inspire confidence in the judicial system...."

It has been repeatedly held that a trial court's entry of a decree of dissolution of marriage proposed by one of the litigants is not per se erroneous. Roberts v. Roberts, 800 S.W.2d 91, 93 (Mo.App.W.D.1990); Kreitz v. Kreitz, 750 S.W.2d 681, 684 (Mo.App.E.D.1988); Ederle v. Ederle, 741 S.W.2d 883, 884-85 (Mo.App.E.D.1987); Binkley v. Binkley, 725 S.W.2d 910, 911 n. 2 (Mo.App.E.D.1987). Although entering such decrees has been criticized, Kreitz, 750 S.W.2d at 684; Binkley, 725 S.W.2d at 911 n. 2, such decrees are reviewed by the same standard as other dissolution decrees. Kreitz, 750 S.W.2d at 684; Ederle, 741 S.W.2d at 885. The decree will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. T.B.G., 772 S.W.2d at 654. We therefore deny Husband's first point and apply that standard of review to his others.

Husband's second point attacks the provision regarding custody of the two sons.

The decree awards Husband and Wife joint legal custody of the sons; it awards Wife "physical custody" of the sons, subject to "visitation rights" of Husband as follows:

Every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m.; on alternating major holidays; and for two periods of two weeks each during the Summer vacation.

This Court has characterized a similar arrangement as "joint physical custody" as defined by § 452.375.1(2), RSMo Cum.Supp.1990. In re Marriage of Johnson, 865 S.W.2d 412, 415 (Mo.App.S.D.1993). Using that terminology, we shall treat Husband's second point as a contention that the trial court erred in its apportionment of joint physical custody in that the periods of time during which the sons will reside with Wife are too long and too frequent, while the periods during which the sons will reside with Husband are too short and too infrequent.

Husband asserts the joint physical custody plan imposed by the trial court is not supported by substantial evidence and is against the weight of the evidence because, in his words:

(A) The Court gave [Wife] preferential consideration solely because she is the mother, which is not permitted;

(B) [Wife] became pregnant by [Paramour] and bore his child while she was still married to [Husband], which reflects unfavorably on her judgment, morals, and character, and renders her unsuitable to have primary custody of the [sons];

(C) [Wife] has introduced [Paramour] in the environment of the [sons] and he will be a major influence on their lives and their values when the evidence shows he is a regular user and abuser of alcohol, has numerous traffic offenses, including D.W.I.'s, had his license suspended, has spent time in jail, and is otherwise unsuited to be in the [sons'] home;

(D) Comparing the respective environments of the parties and what each has to offer the [sons], [Husband] has the superior circumstances and future prospects and he should have been awarded custody of the [sons] for that reason; and

(E) [Wife] has been unstable and undependable, has had emotional problems requiring medication, she has been unemployed for extended periods, and has subsisted on welfare for no apparent reason, all proving she is unsuitable to have custody of the [sons], while [Husband] is regularly employed, is completing a college degree, and has suitable housing and other circumstances with which to properly raise the [sons].

In support of contention "(A)," Husband cites § 452.375.6, RSMo Cum.Supp.1990, which provides that as between the parents of a child, no preference may be given to either parent in the awarding of custody because of that parent's age, sex, or financial...