Patterson v. Patterson

• Decision Date: 11 October 2006
• Docket Number: No. 26824.,No. 26822.,26822.,26824.
• Citation: Patterson v. Patterson, 207 S.W.3d 179 (Mo. App. 2006)
• Parties: Mark PATTERSON, Appellant-Respondent, v. Rhonda PATTERSON, Respondent-Appellant.
• Court: Missouri Court of Appeals

207 S.W.3d 179

Mark PATTERSON, Appellant-Respondent, v. Rhonda PATTERSON, Respondent-Appellant.

No. 26822.

No. 26824.

Missouri Court of Appeals, Southern District, Division One.

October 11, 2006.

Motion for Rehearing or Transfer to Supreme Court Denied October 30, 2006.

Application for Transfer Denied December 19, 2006.

COPYRIGHT MATERIAL OMITTED

Tim Gammon, Springfield, for appellant/respondent.

Susan S. Jensen, Pratt, Fossard, Jensen & Masters, L.L.C., Springfield, for respondent/appellant.

JOHN E. PARRISH, Judge.

Mark Patterson (husband) and Rhonda Patterson (wife) each appeal the judgment entered in their dissolution of marriage case. Both husband and wife appeal the parts of the judgment that awarded child custody and visitation and the distribution of marital property. Husband also appeals the amount of child support the judgment directs that he pay. This court affirms.

Both parties sought dissolution of their marriage. The parties have one child, Tyler Allen Patterson, born May 11, 1992. The trial court dissolved the marriage, awarded sole legal and physical custody of Tyler to wife, granted husband specific periods of supervised visitation, and ordered husband to pay child support in the amount of $846 per month. Non-marital property was set aside to each respective party. Marital property and marital debts were divided.

This court's review is undertaken pursuant to Rule 84.13(d).

The judgment will be affirmed unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Hall v. Hall, 53 S.W.3d 214, 217 (Mo. App.2001). The evidence and all inferences drawn therefrom are viewed in the light most favorable to the judgment. Id. Deference is granted to the trial court's determinations regarding the credibility of witnesses. Id.

Shelby v. Shelby, 130 S.W.3d 674, 676 (Mo. App.2004).

Husband asserts five points on appeal. Wife presents two points in her cross appeal.¹ Wife's Point VI is directed to the same issue to which husband's Points II and III are directed, the award of child custody and visitation. They will be addressed together. Facts directed to the issues asserted in particular points on appeal will be set forth in the parts of this opinion that address those points.

Husband's Point I

Husband's Point I asserts four claims of error that he alleges deprived him "of his rights to due process and equal protection under the Fifth and Fourteenth Amendments to the United States Constitution." Husband argues that this occurred as a result of the trial court "limiting and restricting [his] allotted trial time while in effect allowing [wife] twice as much time for her witnesses and advocates;" "denying . . . his right to discover and use all records of counselor Brown and the GAL Kim Lowry;" "failing to order a current evaluation of Tyler by an independent psychologist or obtain Tyler's direct testimony;" and "failing to recognize [husband's] liberty interest in access to and involvement with his son and to apply heightened judicial scrutiny before restricting or denying that interest."

Husband's Point I appears to suggest that the trial court erred in four ways: (1) by allocating the amount of time each litigant would have for presenting their cases; (2) by denying a discovery request for records of a counselor who would be a witness for wife and for records of the guardian ad litem; (3) by not ordering a further evaluation of Tyler or, sua sponte, requiring Tyler to testify at trial; and, (4) by denying husband access to his son without "apply[ing] heightened judicial scrutiny" (whatever that is).

Husband's Point I does not explain, in the context of the case as required by Rule 84.04(d)(C), why these actions deprived him of the constitutional rights he claims were denied. Further, the point groups multiple allegations of incidents of error that relate to a variety of issues into a single point relied on. Husband's Point I contains multifarious claims. "Improper points relied on preserve nothing for appellate review." Rushing v. City of Springfield, 180 S.W.3d 538, 539 (Mo.App. 2006). Husband's Point I is dismissed.

Husband's Points II and III; Wife's Point VI

Husband's Points II and III assert that the trial court erred in restricting his visitation with Tyler (Point II) and that "[t]he trial court erred in denying significant and meaningful contact between Tyler and [husband]" (Point III). Wife's Point VI argues that the trial court erred in granting any visitation to husband.

The trial court awarded custody of Tyler and visitation as follows.

A. CUSTODY.

1. LEGAL CUSTODY.

The [WIFE] is awarded SOLE LEGAL CUSTODY of the minor child, and shall therefore have the sole decision making right, responsibility, and authority relating the health, education, and welfare of the child. Further, as sole legal custodian, the [wife] shall not be required to consult with the [husband] in the exercise of her decision making rights, responsibilities, and authorities.

2. PHYSICAL CUSTODY.

The [WIFE] is awarded SOLE PHYSICAL CUSTODY of the minor child.

. . .

CONTACT SCHEDULE. Upon the conditions set forth below the [husband] shall have restricted, supervised parenting time with the minor child for two, six hour periods each month to be exercised from 10am [sic] to 4pm [sic] on the 2nd and 4th Saturdays of each month. The conditions for same are as follows.

(1) The [husband] shall submit the name of a proposed supervisor, who must be agreed to by the [wife] and approved by the Guardian ad Litem. In the absence of such agreement and approval, the [husband] must seek relief from the Court.

(2) The [husband] shall be responsible for the cost associated with the supervised contact, and must pay the supervisor and the Guardian ad Litem for time spent in this process for each designated parenting time no later than Monday at 5pm [sic] for the parenting time to be exercised that following Saturday. If these costs are not paid in advance on the Monday preceding the parenting time, then said parenting time shall be forfeited by [husband].

. . .

Husband's Point II, as it is perceived by this court, complains about the weight he contends the trial court gave the testimony of a counselor and the guardian ad litem in concluding there had been domestic violence in husband's relationship with wife and in restricting father's visitation with Tyler. Husband argues that counselor Leslie Brown and the guardian ad litem were biased against him. He contends their bias is evidenced by the fact that wife retained the counselor and worked with her ten months before the court appointed her; that the counselor recommended the guardian ad litem and, thereafter, the guardian ad litem recommended that the trial court appoint Ms. Brown to assist in the case. Husband complains that after he filed a complaint against the guardian ad litem, the guardian ad litem and the counselor "constructed the argument and marshaled the evidence against [husband]." Point II contends that the actions of the counselor and the guardian ad litem "resulted in denying [him] access to and meaningful visitation with his son."

Husband's Point III contends "[t]he trial court erred in denying significant and meaningful contact between Tyler and [husband]." Husband argues that his relationship with Tyler "was functioning at the time of separation"; that problems in his relationship with Tyler "were a result of the separation and not a cause of the separation." He asserts a willingness "to go to counseling to correct any alleged vulgarity or verbal abuse toward Tyler" and complains there was a lack of "direct evidence from Tyler" or from a neutral psychologist about Tyler's wishes and about other problems that husband asserts appeared after he and wife separated. Wife's Point VI contends the trial court erred in granting any visitation to husband because the evidence and recommendations of the counselor and guardian ad litem were adverse to granting of visitation rights to father.

Section 452.400.1, RSMo 2000, as it existed at the time of the trial of this case, provided, as applicable here:

A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger the child's physical health or impair his or her emotional development. The court shall enter an order specifically detailing the visitation rights of the parent without physical custody rights to the child . . . for whom such parent has custodial or visitation rights. In determining the granting of visitation rights, the court shall consider evidence of domestic violence. If the court finds that domestic violence has occurred, the court may find that granting visitation to the abusive party is in the best interests of the child....

The trial court found with regard to the child's needs to have frequent, continuing, and meaningful relationships with both parents and the ability and willingness of the parents to actively perform their functions as mother and father for the needs of the child:

In this regard the Court recognizes the public policy of this state that frequent, continuing and meaningful contact with both parents is in the best interest of child, except for cases where the Court specifically finds that such contact is not in the best interest of the child. In this case, the Court does find and conclude from the evidence that it is not in the child's best interest to have such contact with [father]. The Court further concludes that unrestricted contact by [husband] with Tyler would endanger Tyler's physical health and impair his emotional development. In fact, unrestricted contact by [father] during the marriage, and prior to this Court's Order for restricted contact, has already impaired Tyler's emotional development and his physical health and resulted in the necessity of extended therapy for Tyler.... [Emphasis in...