R. Farley v. J.T. Farley

• Decision Date: 11 May 2001
• Citation: 51 S.W.3d 159
• Parties: (Mo.App. S.D. 2001) Rebecca Ellen Farley, Respondent, v. John Thomas Farley, Appellant. 23376 0
• Court: Missouri Court of Appeals

51 S.W.3d 159 (Mo.App. S.D. 2001)

Rebecca Ellen Farley, Respondent, v. John Thomas Farley, Appellant.

23376

Missouri Court of Appeals Southern District

05/11/2001

Appeal From: Circuit Court of Butler County, Hon. William J. Clarkson

Counsel for Appellant: Harold G. Johnson and Mitchell D. Johnson

Counsel for Respondent: Douglas R. Kennedy

Opinion Summary: None

Prewitt, J., concurs. Rahmeyer, J., concurs in separate opinion.

Robert S. Barney, Chief Judge

John Farley ("Husband") appeals the judgment of the Circuit Court of Butler County dissolving his 21 year marriage to Rebecca Farley ("Wife"). In pertinent part, the judgment gave Husband and Wife joint legal and physical custody of their son, Dustin Farley, born April 27, 1988, ("Dusty"). Wife, however, was designated the primary care giver and Husband was ordered to pay the sum of $126.00 a month as child support. In its division of the marital property, the circuit court awarded Wife properties worth $114,092.00 and Husband was awarded properties worth $97,641.00, including $30,000.00 that Wife was ordered to pay Husband. No maintenance was awarded either party.

Husband now raises four points of trial court error challenging the trial court's grant of primary physical custody of Dusty to Wife; the valuation the trial court placed on the parties' personal properties; the division of the marital property; and the denial of his request to amend his pleadings to preserve a claim for "future maintenance."

"An appellate court must affirm the trial court's judgment in a dissolution case if it 'is supported by substantial evidence, it is not against the weight of the evidence, and it neither erroneously declares nor applies the law.'" In re Marriage of Turner, 5 S.W.3d 607, 609 (Mo.App. 1999) (quoting In re Marriage of Sisk, 937 S.W.2d 727, 730 (Mo.App. 1996)); see Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In our review of the record on appeal, we accept as true the evidence and inferences therefrom that are favorable to the trial court's judgment and we disregard all contrary evidence. Turner, 5 S.W.3d at 609. "The trial court is free to believe or disbelieve all, part or none of the testimony of any witness." Id.

In his first point, Husband claims he should have been awarded primary physical custody of Dusty because the trial court failed to consider the relevant factors listed in section 452.375.2 in making its grant of primary physical custody of Dusty to Wife.¹

"An appellate court will not disturb a trial court's custody award unless it is manifestly erroneous and the welfare of the child requires some disposition other than that made by the trial court." Id. "We afford greater deference to the trial court's decision in child custody determinations than in other cases." Id. "An appellate court may not substitute its judgment for that of the trial court so long as there is credible evidence upon which the trial court can formulate its belief." Id. "When determining custody, the overriding consideration is the best interests of the child." Turner, 5 S.W.3d at 609; section 452.375.2. Under the foregoing subsection, the trial court is to "consider all relevant factors" including those specifically delineated. Turner, 5 S.W.3d at 609. "The appellate court must presume the trial court awarded custody in the child's best interests, due to the trial court's superior position in judging the credibility of witnesses, along with their character, sincerity, and other intangibles not completely revealed by the record." Id.

In determining the best interests of a child, the court may consider the conduct of the parties. Tracy v. Tracy, 961 S.W.2d 855, 859 (Mo.App. 1998). "Past and present activities may be a reliable guide to the priorities of the parent." Id. The record shows prior to separation, while working full time herself, Wife performed all the traditional household duties, including taking care of all of Dusty's physical needs. Wife also attended to all of Dusty's medical needs, including his problems involving attention deficit disorder and chronic sinusitis. On the other hand, there is evidence in the record showing that Husband's interest and participation with Dusty occurred only after the separation of the parties. See Rinehart v. Rinehart, 877 S.W.2d 205, 209 (Mo.App. 1994); In Re Marriage of Turner, 5 S.W.3d at 611. Additionally, the record shows that prior to separation Husband was "very distant from [Dusty]," and reflects that Husband paid little attention to Dusty. Neither did Husband involve himself with the minor's outside activities. See Turner, 5 S.W.3d at 611.

We also observe that in making its custody determination a trial court must give consideration to the conduct a parent may inspire by example as well as what conduct of a child a parent may foster by condonation. Tracy, 961 S.W.2d at 859. In the instant matter, the record reflects that at least on one occasion Husband bragged to his son about how he was able to evade the law while engaging in illegal activities such as stealing. Furthermore, Husband appeared to speak approvingly of certain individuals involved in other illegal activities such as those relating to the illegal burning of a vehicle in such a manner as to avoid detection.

In our review of the record, including testimony given during the course of an after trial motion in which Dusty, again, was questioned by the trial court and the attorneys, we observe that Dusty expressed resentment of his mother regarding her remarriage. He also expressed a dislike for her new husband. Indeed, during the course of his second testimony, Dusty requested the trial court to allow him to remain with his father. Dusty also charged that some of his mother's relatives had physically abused him. Despite Dusty's testimony, the trial court granted Wife primary custody over the minor. It is clear that the trial court found Dusty's allegations of abuse less than credible. The trial court is free to believe or disbelieve all, part or none of the testimony of any witness, including that of a child. Turner, 5 S.W.3d at 609. Furthermore, while Dusty expressed a preference to remain with his father, we note that a child's preference as to which parent he or she wishes to remain with is but one of the relevant factors that the trial court is required to consider. In Re Marriage of Bigelow, 959 S.W.2d 897, 899 (Mo.App. 1997). "[T]he child's preference, while important, is not dispositive." Id.; section 452.375.2(8). While we acknowledge that Husband's account of his own and Wife's behavior toward the child during their relationship may differ, as previously stated, the trial court was not obliged to believe his testimony or to accept his interpretation of the events. Bigelow, 959 S.W.2d 899. Here, we do not have a firm belief that the decree of the trial court with regard to child custody is wrong. It is supported by substantial evidence and is not against the weight of the evidence. No abuse of discretion has been shown by the trial court in its award of the primary physical custody of the child to Wife. Id.; Tracy, 961 S.W.2d at 863. Point denied.

In his second point, Husband complains of the trial court's valuation placed on the marital property distributed to the parties. He asserts that these values were derived from Wife's Exhibit "C" and were not supported by competent evidence. He alleges that the value of the properties awarded to him were "over stated," whereas the properties awarded Wife were "understated." This point also lacks merit.

A trial court is prohibited from entering a valuation of marital property not supported by the evidence at trial, but the trial court, nevertheless, enjoys broad discretion in valuing marital property. In Re Marriage of Kirkham, 975 S.W.2d 500, 505 (Mo.App. 1998); Brennan v. Brennan, 955 S.W.2d 779, 783 (Mo.App. 1997). "Although the trial court need no longer assign values to the marital property, evidence from which the value of the marital property can be determined must appear." Spauldin v. Spauldin, 945 S.W.2d 665, 669 (Mo.App. 1997). As a general rule, "the owner of property is competent to testify as to its value." Sinopole v. Sinopole, 871 S.W.2d 46, 49 (Mo.App. 1993). In the instant matter, Wife testified at trial, without objection, that Exhibit "B" reflected the fair market values of the parties' marital properties as of the date of trial. Wife also testified, without objection, that Exhibit "C" reflected what she felt was a fair and equitable distribution of the properties owned by the parties. Husband offered little or no evidence as to the value of the marital property. At trial, each party has "at least an equal burden to carry on the matter of evidence of value in a dissolution." Buckner v. Buckner, 912 S.W.2d 65, 69 (Mo.App. 1995). Here, there was no protest to the valuations placed on the property at trial until after the evidentiary phase of the trial had been concluded. Indeed, there was no cross-examination of Wife as to the values she placed on the respective properties set out in Exhibits "B" and "C." "A complainant should not be rewarded for presenting insufficient evidence of property values." Smith v. Smith, 682 S.W.2d 834, 836 (Mo.App. 1984). The trial court did not abuse its discretion in valuing the parties' marital property. Buckner, 912 S.W.2d at 69. Point denied.

In his third point, Husband asseverates that the trial court erred in failing to fairly divide the marital property of the parties. He argues that Wife was awarded a far greater portion of the property than she was entitled to in contradiction of the factors set out in section 452.330.1.

Pursuant to section 452.330.1, the trial court is to divide marital property and debts in such proportions the court deems just after considering all relevant factors therein set out. See Brown v. Brown, 14 S.W.3d 704, 706-07 (Mo.App. 2000). The factors listed in section 452.330.1 are not exclusive and the trial...