Morse v. Morse

Citation80 S.W.3d 898
Decision Date30 July 2002
Docket NumberNo. WD 60144.,WD 60144.
PartiesBrenda L. MORSE, Respondent, v. Ronald L. MORSE, Appellant.
CourtCourt of Appeal of Missouri (US)

Jean Strandberg Goldstein, Columbia, MO, for appellant.

James Clampitt and Jason H. Lamb, Mexico, MO, for respondent.

Before PAUL M. SPINDEN, C.J., HAROLD L. LOWENSTEIN and ROBERT G. ULRICH, JJ.

ROBERT G. ULRICH, J.

Ronald Morse (Father) appeals the judgment of the trial court dissolving his marriage to Brenda Morse (Mother). He claims that the trial court erred in (1) ordering joint physical custody of the two minor children where the children spend alternating months with each parent, (2) ordering him to pay child support in the amount of $467 per month, (3) valuing and dividing the martial property, and (4) awarding Wife $5,200 in attorneys fees. The judgment of the trial court is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

I. Facts

Father and Mother were married on April 11, 1986. Two children were born of the marriage: Zachary, born October 8, 1986; and Mark, born July 30, 1988.

In 1997, Mother began noticing problems in the marriage. Father was not talking to her and was "shutting [her] out." She asked Father if he was having an affair, and he replied, "Yes, sort of." Father said that he had feelings for another woman, and that although he was not having a physical affair, he was having an "emotional affair." Father testified at trial that he had been having doubts about the marriage for years and probably from the beginning. The parties stayed together for the next year. Mother encouraged Father to go to counseling, but he refused. Father threatened to kill himself if Mother left him. He was depressed, and he isolated himself from Mother and the two children. Father eventually admitted that he was romantically interested in a co-worker, and he refused to end his friendship with her. The parties finally separated in November 1998, and Father moved out of the marital home. The children remained in the custody of Mother with Father receiving visitation on alternate weekends and one night per week.

After the separation, Mother and Father attended marriage counseling. Father told the counselor that he would continue in counseling if he could keep his girlfriend. Father testified that he began a romantic relationship with his co-worker in December 1998. Father also continued to have sexual relations with Mother after the separation. He admitted that he was sexually active with both his girlfriend and Mother during a seven-month period. Mother testified that she and Father continued to have sexual relations until February 2000 when she discovered that Father was also engaging in a sexual relationship with another woman.

Mother filed her petition for dissolution of marriage in August 1999 in Audrain County Circuit Court. The case was transferred to Boone County Circuit Court in June 2000. Thereafter, Father filed his answer and counter-petition. Both parties sought dissolution of the marriage, joint legal custody and primary physical custody of the children with visitation by the other spouse, child support from the other spouse, and division of marital property. Mother also sought attorney's fees.

At the time of trial on January 9, 2001, Mother was a full-time student and worked twenty hours per week earning $9.61 per hour. She was scheduled to graduate with an associate's degree in May 2001. Father was employed by Boone Electric Company where he has worked for thirteen and a half years. While normally employed as an electrical lineman earning $20.84 per hour, Father was performing clerical duties at the time of trial due to recent back surgery. He was scheduled to return to his normal job in the spring of 2001.

On January 16, 2001, Father filed a motion to reopen for additional evidence alleging that during an argument on January 11, 2001, Mother had pushed and shoved the boys and had slapped their elder son multiple times. A hearing was held on the motion, and the trial court took it under advisement. The court then ordered the parties and the children to attend counseling. The court also ordered temporary custody of alternating weeks to each parent.

On April 19, 2001, a report by the family's counselor was filed with the court. The counselor opined that while the weekly custody transfer was not ideal for the children, a dual-household schedule is an appropriate arrangement that would allow the children to have meaningful contact with both parents if the parties continue to live within close proximity of each other and cooperate on the frequent exchanges.

The trial court entered its judgment dissolving the parties' marriage on June 12, 2001. It awarded the parties joint legal and physical custody of the children with custody to alternate monthly between the parents. Visitation was scheduled for the parent who did not have custody in a specific month. The trial court ordered Father to pay $467 per month in child support. It also ordered Father to pay Mother's attorney's fees in the amount of $5,200. Finally, the trial court divided the marital property. Based on its finding that Father's conduct broke up the marriage, it awarded 60% of the marital property to Mother and 40% to Father. This appeal by Father followed.

II. Standard of Review

The judgment of the trial court in a dissolution action will be affirmed on appeal 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Taylor v. Taylor, 25 S.W.3d 634, 638 (Mo.App. W.D.2000). Deference is given to the trial court's determinations of credibility, and the evidence and permissible inferences therefrom are viewed in the light most favorable to the decree with all contrary evidence and inferences disregarded. Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991). The appellant bears the burden of demonstrating error. Taylor, 25 S.W.3d at 638.

III. Child Custody and Child Support

The issues of child custody and child support are first addressed. Father claims that the trial court erred in ordering joint physical custody of the two minor children where the children spend alternating months with each parent. He also claims that the trial court erred in ordering him to pay child support in the amount of $467 per month.

Section 452.375, RSMo 2000, governs custody of children. It requires the trial court to "determine custody in accordance with the best interests of the child." § 452.375.2, RSMo 2000. In doing so, the trial court shall consider all relevant factors including:

(1) The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties;

(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their function as mother and father for the needs of the child;

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

(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;

(5) The child's adjustment to the child's home, school, and community;

(6) 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;

(7) The intention of either parent to relocate the principal residence of the child; and

(8) The wishes of a child as to the child's custodian.

§ 452.375.2, RSMo 2000. Section 452.375.6, RSMo 2000, provides:

If the parties have not agreed to a custodial arrangement, or the court determines such arrangement is not in the best interest of the child, the court shall include a written finding in the judgment or order based on the public policy in subsection 4 of this section and each of the factors listed in subdivisions (1) to (8) of subsection 2 of this section detailing the specific relevant factors that made a particular arrangement in the best interest of the child. If a proposed custodial arrangement is rejected by the court, the court shall include a written finding in the judgment or order detailing the specific relevant factors resulting in the rejection of such arrangement.

Thus, "[i]f written findings are required of the trial court by § 452.375.6, but are not made, the award of child custody will be reversed and the case remanded for the court to make the necessary findings and an award in accordance therewith." Bauer v. Bauer, 38 S.W.3d 449, 456 (Mo. App. W.D.2001).

In this case, the parties did not agree to a custodial arrangement regarding the minor children and the trial court rejected their proposed custodial plans. The trial court, therefore, was required under section 452.375.6 to make written findings in the judgment detailing the specific relevant factors that made its custody award in the best interests of the children. The trial court, however, did not make the required findings in its judgment.1 The judgment regarding child custody and support is, therefore, reversed, and the case is remanded to the trial court to make written findings in its judgment as required by section 452.375.6 and for entry of a new child custody and support judgment as the trial court deems proper. See Id.

IV. ...

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