Plunkett v. Aubuchon
| Decision Date | 26 June 1990 |
| Docket Number | No. 56605,56605 |
| Citation | 793 S.W.2d 554 |
| Parties | Edward Dean PLUNKETT, Petitioner/Appellant, v. Darlene Plunkett AUBUCHON, Respondent/Respondent. |
| Court | Missouri Court of Appeals |
Wallace L. Duncan, Grace C. Blaich, Poplar Bluff, for petitioner/appellant.
David L. Mayhugh, Flat River, for respondent.
Petitioner Edward Plunkett (father) appeals the trial court's decision granting respondent Darlene Aubuchon (mother) sole custody of their two minor sons. We affirm.
Father raises six points of error. First, the trial court erred in granting sole custody of the children to mother; because no changes in the circumstances had occurred; and because the trial court's decision was against the weight of the evidence. We disagree; changes in the circumstances had occurred necessitating a modification of the original decree, and the trial court's decision was not against the weight of the evidence. Second, the trial court erred in denying his motion for contempt against mother. This point is denied, because the record on appeal did not include father's motion for contempt.
Third, the trial court erred in awarding mother child support of $50.00 per week per child; because the award was against the weight of the evidence. We disagree; the trial court did not abuse its discretion. Fourth, the trial court erred in ordering father to pay retroactive child support; because there was no original decree of child support. We disagree; a retroactive child support award can be made upon a motion to modify even though the original decree did not provide for child support. Fifth, the trial court erred in ordering father to pay a portion of mother's attorney fees. We disagree; the trial court considered the relevant factors, and a trial court itself can determine the reasonableness of a fee. Sixth, the trial court erred in determining custody without appointing a guardian ad litem. We disagree; there was no allegation of abuse or neglect requiring the appointment of a guardian ad litem.
The parties' marriage was dissolved November 6, 1985. Under the dissolution decree, the parties were awarded joint legal and physical custody of their two minor sons 1. Father was to have actual custody of the boys for the majority of the time. This arrangement allowed the school-age son to attend school in the North County School District. Father has lived in that district throughout these proceedings; while, at the time of the decree, mother lived in Jefferson County.
Problems between the parties arose soon after the decree was entered. The parties each filed motions to modify. Following a hearing, primary care, custody, and control of the two boys was transferred to mother. The trial court ordered father to pay child support and granted him visitation and temporary custody privileges. Father appealed.. He posted a supersedeas bond to stay execution on the child support award.
This court vacated the trial court's orders and remanded the cause for further proceedings before another judge. Plunkett v. Plunkett, 757 S.W.2d 286 (Mo.App.E.D.1988). Upon remand, this cause was assigned to the Honorable Larry Casey.
Both parties filed amended motions to modify, seeking primary custody. After a two day trial, the trial court awarded custody of the two children to mother. Father was ordered to pay $50.00 per week per child as and for child support. In addition, the trial court ordered him to pay $5,000.00 as retroactive child support and $9,500.00 for mother's attorney fees.
In his first point, father asserts that the trial court erred for two reasons in awarding sole custody of the parties' minor children to mother. He argues that (1) no changes in the circumstances necessitating a modification had occurred since the prior decree; and (2) the trial court's decision was against the weight of the evidence, was not supported by substantial evidence, and the trial court misdeclared and misapplied the law.
Father first contends that no change of circumstances had occurred. In making this contention, father overlooks the allegations in his amended motion to modify. In his motion, he alleged that "since the date of the Decree of Dissolution of Marriage ... there have been substantial and continuing changes in the circumstances of the parties and the minor children so that modification of the Decree of Dissolution is necessary." He then listed twenty alleged changes.
His verified motion further alleged that, as a result of those changes, "it is required that the Court modify the Decree ... by awarding [father] sole legal custody and the full primary care ... of the minor children." The prayer in his motion was that "permanent sole legal and sole physical custody of the minor children [be placed] with [father]."
"[I]t is a general rule that allegations or admissions of fact contained in pleadings upon which a case is tried are binding on the pleader." Sayers v. Bagcraft of Am., Inc., 597 S.W.2d 280, 282 (Mo.App.S.D.1980). Here, both father's and mother's motions alleged "substantial and continuing changes in the circumstances" had occurred. In addition, each motion set out numerous specific changes which had occurred.
Further, at trial, father testified that he did not think that joint custody was "necessarily in the best interests of the children." Based on the pleadings and the testimony, the trial court found that one of the "few issues upon which [father] and [mother] both agree is that joint ... custody has not worked and that sole or primary legal custody ... is the appropriate course."
Next, father correctly points out that we review the trial court's decision under the standard set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We understand father's argument to be that the trial court's decision granting mother sole custody of the children was against the weight of the evidence.
"Appellate courts should exercise the power to set aside a decree or judgment on the ground it is 'against the weight of the evidence' with caution and with a firm belief that the decree or judgment is wrong." Id. "We view the facts in the light most favorable to the judgment and defer to the trial court's resolution of conflicts in evidence." Mueller v. Simmons, 634 S.W.2d 533, 535 (Mo.App.E.D.1982); see also Ware v. Ware, 647 S.W.2d 582, 584 (Mo.App.E.D.1983).
Here, there was evidence which would justify the award of custody to either parent. No useful purpose would be served by setting out that evidence, which sharply conflicted. "Where conflicts in testimony exist, as in the present cause, we may assume the trial court believed the testimony and evidence which was consistent with its findings and judgment." McComas v. Umlauf, 641 S.W.2d 809, 812 (Mo.App.S.D.1982). "The fact that there is evidence in the record which might have supported a different conclusion does not demonstrate the court's holding is contrary to the weight of the evidence." Alice v. Ronald, 683 S.W.2d 307, 310 (Mo.App.S.D.1984).
We do not have "a firm belief that the decree ... is wrong," Murphy, 536 S.W.2d at 32, nor are we "firmly convinced that the welfare of the [children] requires some other disposition." In re Marriage of Wofford, 589 S.W.2d 323, 326 (Mo.App.S.D.1979). We, therefore, defer to the trial court's decision. Id. Point denied.
In his second point, father challenges the trial court's denial of his motion for contempt against mother. He contends that mother wrongfully retained custody of the children after the order granting her primary custody was vacated by this court.
Father failed to provide this court with a copy of his motion for contempt. "For a question to be reviewed the record or the requisite part thereof must contain or set forth such matters relating thereto as will enable the court to determine whether or not there is error in respect thereto." 4A C.J.S. Appeal and Error § 1154 (1957); see also Cain v. Richart, 781 S.W.2d 265 (Mo.App.S.D.1989). Rule 81.12(a) and (c). Because father failed to include his motion in the record on appeal, this court has no basis upon which to find any error of fact or law. See A.W. Moore Roofing v. Sevier, 700 S.W.2d 93 (Mo.App.E.D.1985); Hammons v. Eisert, 745 S.W.2d 253 (Mo.App.S.D.1988). Father's point is denied.
We have, ex gratia, read the briefs and the cases cited therein. Under the facts of this case, we do not perceive any reversible error. Originally, the parties had joint custody of the children. However, on September 4, 1987, mother was granted custody of the children. About a year later, the September 4 order was declared vacated by this court's opinion dated August 30, 1988. That opinion did not become final until this court issued its mandate on October 19, 1988.
Between the date of the opinion and the mandate, mother filed, and the trial court took up, a motion for temporary custody. That motion is not contained in the legal file, nor does the legal file contain a copy of any written order. The transcript of the September 28 hearing, however, reveals that the trial judge said, "It is my judgment today that the matters shall stay as they are, and by that I mean ... the children are with [mother]--that they remain there."
No issue is raised as to whether the trial court had jurisdiction to enter the September 28 order. Mother at least had "colorable" custody of the children. The trial court did not err in refusing to hold mother in contempt.
In his third point, father contends the trial court erred in awarding mother child support of $50.00 per week per child. This court construes his argument to be that the trial court's award is against the weight of the evidence.
"Setting the amount of child support is a matter within the sound discretion of the trial court." Geil v. Geil, 647 S.W.2d 161, 162 (Mo.App.E.D.1983). "We cannot substitute our judgment for that of the trial court absent...
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