Pijanowski v. Pijanowski

• Decision Date: 21 October 2008
• Docket Number: No. WD 69193.,WD 69193.
• Citation: Pijanowski v. Pijanowski, 272 S.W.3d 321 (Mo. App. 2008)
• Parties: Craig PIJANOWSKI, Respondent, v. Hope PIJANOWSKI, Appellant.
• Court: Missouri Court of Appeals

272 S.W.3d 321

Craig PIJANOWSKI, Respondent, v.Hope PIJANOWSKI, Appellant.

No. WD 69193.

Missouri Court of Appeals, Western District.

October 21, 2008.

Motion for Rehearing and/or Transfer to Supreme Court Denied November 25, 2008.

Application for Transfer Denied January 27, 2009.

Allen S. Russell, Kansas City, MO, for Appellant.

Larry Dean Wright, Kansas City, MO, for Respondent.

Before HAROLD L. LOWENSTEIN, P.J., VICTOR C. HOWARD, Judge and THOMAS H. NEWTON, Judge.

VICTOR C. HOWARD, Judge.

Hope Edwards(formerly Hope Pijanowski) appeals the judgment of the Platte County Circuit Court setting a joint child custody schedule.In her two points on appeal, she claims the trial court erred in: (1) denying her motion for a new trial and/or to receive additional evidence and amend the judgment and decree of dissolution of marriage, and (2) implementing a child custody schedule that would be automatically modified when the child began attending kindergarten.Both points are denied, and the judgment of the trial court is affirmed.

Factual and Procedural Background

Hope Edwards("Mother") and Craig Pijanowski("Father") were married on June 25, 2002 in Warrensburg, Missouri.Mother and Father then moved to Platte City, Missouri, in October 2002.Mother and Father became the parents of one child during the marriage.Their son, Elijah, was born on February 25, 2003.Sergio, Mother's child from a previous relationship also resided with Mother and Father in Platte City.

Two years after Elijah was born, Mother began seeking employment in the airline industry as an airplane mechanic.She was unable to find the specific job she sought in the Kansas City area, but in August 2005, Mother was offered a job with U.S. Airways in Washington, D.C.Because Mother believed this job would give her the experience necessary to obtain a job in the Kansas City area, Mother and Father agreed that Mother would take the job in Washington, D.C. on a six month trial basis.

During this six month period, Elijah and Sergio stayed in the marital residence in Platte City with Father.Mother returned to Platte City when she had days off from work.While Mother was away, Father took care of Elijah and Sergio, with the help of the family's babysitter and Elijah and Sergio's maternal grandmother.

In December 2005, while working in Washington, D.C., Mother received an offer for a training opportunity in Pittsburg, Pennsylvania, which would begin in February 2006.Because it was Father's understanding that Mother would return to Platte City after six months of work in Washington, D.C., Father disagreed with Mother's decision to pursue further training away from Platte City.Therefore, Father filed a petition for dissolution of marriage on January 23, 2006, in the Platte County Circuit Court.

The trial court heard evidence regarding the petition for dissolution of marriage on July 18, 2007.By this time, Mother had relocated to and obtained employment in West Plains, Missouri.Mother testified that Elijah's grandmother was retired and lived in the area and, therefore, could help care for Elijah while Mother worked.Mother also testified that she had researched the West Plains community and school district and found them suitable for Elijah's needs.Mother asked the court to adopt a parenting plan in which Elijah would live primarily with Mother during the school year but would still have 116 overnight visits per year with Father.

Father testified that he wanted Elijah to reside in Platte City when he begins kindergarten.Father testified that Platte City had been Elijah's home for his entire life, he had friends there, and Father believed Platte City offered better schools and greater opportunities for Elijah than West Plains.Additionally, Mother and Father had previously agreed that Father would keep the marital home, which Father testified had been Elijah's home for his entire life.

The trial court entered its Judgment and Decree of Dissolution of Marriage on October 16, 2007.The trial court granted joint legal and physical custody of Elijah to Mother and Father, with Father's address designated as Elijah's address for the purposes of mail and education.The parenting plan adopted by the trial court provided that, prior to Elijah entering kindergarten in August 2008, Mother and Father would alternate visitation with Elijah in thirty day increments.To accommodate Elijah entering kindergarten, the parenting plan altered the custody schedule in August 2008, providing that Elijah would primarily reside with Father, with Mother having custody of Elijah during one weekend each month, spring break, summer break (with three weeks reserved for vacation time with Father), and alternating holidays.

After judgment was entered Mother discovered that Father had pled guilty to a driving while intoxicated (DWI) charge approximately one month before the trial, prompting Mother to file a motion for a new trial and/or to receive additional evidence and amend the judgment and decree of dissolution of marriage on November 15, 2007.The trial court heard arguments on Mother's motion on December 20, 2007, and denied the motion.This appeal by Mother followed.¹

Point I

In her first point on appeal, Mother contends that the trial court erred in denying her motion for a new trial and/or to receive additional evidence and amend the judgment and decree of dissolution of marriage.She claims that the trial court should have granted a new trial or received her evidence regarding Father's DWI because she had shown each of the six elements a party must establish when seeking a new trial on the basis of newly discovered evidence.

A.Standard of Review

"The trial court has wide discretion in ruling on a motion for a new trial and is vested with substantial discretion over matters of fact in ruling on new trial motions."Higgins v. Star Elec., Inc.,908 S.W.2d 897, 903(Mo.App. W.D.1995).The exercise of the trial court's discretion will not be disturbed unless clear abuse is shown.Tuffli v. Bd. Of Educ.,643 S.W.2d 296, 297(Mo.App. E.D.1982)."This is particularly true in cases tried without a jury."Id.

B.Analysis

Rule 78.01 provides the standard for a trial court ruling on a motion for a new trial:

The court may grant a new trial of any issue upon good cause shown.A new trial may be granted to all or any of the parties and on all or part of the issues after trial by jury, court or master.On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact or make new findings, and direct the entry of a new judgment.

The party who seeks a new trial on the basis of newly discovered evidence must show:

(1) that the evidence has come to [her] knowledge since the trial; (2) that the failure of the evidence to come to [her] knowledge sooner was not the result of a lack of due diligence; (3) that the evidence is so material that it would probably produce a different result if a new trial were granted; (4) that the evidence is not cumulative only; (5) that the parties' affidavit should be produced, or its absence be accounted for; and (6) that the object of the evidence is not merely to impeach the character or credibility of a witness.

Anderson v. Anderson,854 S.W.2d 32, 37-38(Mo.App. W.D.1993).Furthermore, new trial motions on the ground of newly discovered evidence "are viewed with disfavor and courts grant them as an exception and refuse them as a rule."Williams v. McCoy,854 S.W.2d 545, 554(Mo.App. S.D.1993)."A trial court has broad discretion in ruling on motions on such grounds, and an appellate court will interfere only where that discretion has been abused."Id.

In her motion, Mother alleged that, since the trial, she discovered that Father had entered a guilty plea in connection with a DWI charge prior to the entry of the trial court's judgment.Mother alleges that such conduct presents concerns regarding Father's ability to care and provide for Elijah.On appeal, Mother argues that she has established the six elements listed in Anderson, and that therefore, the trial court should have granted a new trial and/or received additional evidence and amended its judgment.

Although Father stipulates that information concerning his DWI did not come to Mother's knowledge until after the trial, Father asserts that Mother's motion failed to establish several of the other elements she was required to show.Primarily, Father argues that Mother has not shown that her failure to learn of the evidence sooner was not the result of her lack of due diligence.

"[A] new trial will not be granted `unless the movant can show that the evidence in question could not have been obtained in time for trial by the exercise of due diligence.'"Higgins,908 S.W.2d at 903(quotingMorgan v. Wartenbee,569 S.W.2d 391, 398(Mo.App.1978))."Due diligence is defined as `that degree of assiduity, industry or careful attention called for under the circumstances of the case and does not require impeccable, flawless investigation in all situations.'"Id. at 903-04(quotingYoung v. St. Louis Pub. Serv. Co.,326 S.W.2d 107, 112(Mo.1959)).To show due diligence, the movant must make "allegations of facts," rather than "unsupported statements of diligence."Id. at 904(quotingEstate of Brewster,809 S.W.2d 183, 185(Mo.App. S.D.1991))."Bald assertions that a party was not negligent in failing to discover evidence sooner do not suffice."Id.

In her motion, Mother makes no reference to any facts showing her due diligence in this matter.Moreover, on appeal Mother's arguments regarding due diligence focus on why she could not obtain the information, rather than on what steps she took to discover it.For instance, Mother claims that to impose a duty to investigate on Mother"would be to impose a ridiculously high standard on any litigant seeking to avail themselves of a remedy...