Rallo v. Rallo, ED 101746

• Citation: 477 S.W.3d 29
• Decision Date: 02 June 2015
• Docket Number: No. ED 101746,ED 101746
• Parties: Lisa M. Rallo, Respondent, v. Pete S. Rallo, Appellant.
• Court: Court of Appeal of Missouri (US)

477 S.W.3d 29

Lisa M. Rallo, Respondent,

v.Pete S. Rallo, Appellant.

No. ED 101746

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: June 2, 2015

Motion for Rehearing and/or Transfer to Supreme Court Denied July 14, 2015

Application for Transfer Denied September 22, 2015

James W. Schottel, Jr., 906 Olive Street, Suite PH, St. Louis, MO 63101, Attorneys for Appellant.

Stephen R. Fleddermann, 320 N. Fifth Street, First Floor, St. Charles, MO 63301, Attorneys for Respondent.

ROBERT G. DOWD, JR., Judge

This appeal arises from the judgment dissolving the marriage of Lisa Rallo ("Wife") and Pete Rallo ("Husband"). Husband challenges venue, the custody determination, the division of property and attorney fees. We affirm.

Husband and Wife were married in 2006. Wife was pregnant with a son at the time, and Husband was not the natural father. The son was born during the marriage and adopted by Husband. Husband and Wife also had a daughter together a year later. Husband, Wife and the children lived in the City of St. Louis. In December of 2011, Wife and the children moved to her grandparents' home in St. Charles County. A month later, she filed a petition for dissolution in St. Charles County. Husband filed a motion to dismiss or to transfer based on improper venue. That motion was denied, and after failed attempts at mediation the case eventually proceeded to trial in 2014. At that point, the son was eight and the daughter was seven.

The parties were awarded joint legal custody of the children, and Wife was given final decision-making authority and sole physical custody. The trial court found both parties were unemployed, but imputed a minimum wage income to Husband based on his lengthy history of employment at Schnucks. The trial court divided the parties' limited marital property, which included Husband's Schnucks pension and excluded a 2011 tax refund. The court granted Wife's request for attorney fees, but ordered Husband to pay only half of the amount requested. Further facts and details will be developed in the discussion of each point.

In his first point, Husband claims that venue was not proper in St. Charles County and the trial court should have dismissed the case or transferred it to the City of St. Louis where the parties resided during the marriage. Where, as here, the venue ruling depended on factual matters and the inferences to be drawn therefrom, we review for an abuse of discretion. See McCoy v. The Hershewe Law Firm, P.C., 366 S.W.3d 586, 592 (Mo.App.W.D.2012). We find no abuse of discretion because venue was proper in St. Charles County.

Section 452.300.5 provides that dissolution proceedings "shall be commenced in the county in which the petitioner resides." Our courts have held that the term "resides" in this and other provisions of the dissolution statute is equivalent to "domicile." See Byars v. Byars, 593 S.W.2d 656, 658 (Mo.App.S.D.1980) ; State ex rel. Henderson v. Blaeuer, 723 S.W.2d 589, 590 (Mo.App.W.D.1987) ; see also Lindo–Higginbotham v. Higginbotham, 9 S.W.3d 620, 621–23 (Mo.App.E.D.1999) ("resident" in section 452.305 equivalent to "domiciled"). A domicile is a person's "true, fixed and permanent home and principal establishment to which, whenever he is absent, he has the intention of returning." Byars, 593 S.W.2d at 658. To establish residency, it must be shown that Wife was actually present in St. Charles County and intended to remain there, either permanently or for an indefinite time, without any fixed or certain purpose to return to her former abode in the City of St. Louis. See Higginbotham, 9 S.W.3d at 621. In determining a person's intent regarding her residence, we consider "the acts and utterances of the person ... before, at, and after the time the domicile is in dispute." Wambugu v. Wambugu, 896 S.W.2d 756, 757 (Mo.App.E.D.1995). If intent is established by other evidence, then the duration of the person's bodily presence in the place is of little importance. Goeman v. Goeman, 833 S.W.2d 476, 478 (Mo.App.W.D.1992).

Here, there is no dispute that Wife lived in St. Charles County at the time she filed the petition for dissolution. There was also substantial evidence in the record—including Wife's own statements—that she intended to live in St. Charles County indefinitely. At the time of trial, Wife still lived at the grandparents' residence and had lived there continuously, except for a few months when she moved to another location in St. Charles County with her boyfriend. Husband's argument focuses on this brief absence from the grandparents' home and on Wife's testimony that she did not intend to remain at her grandparents' home "at first" and, at some point, had hoped to move to St. Louis County with her boyfriend. But those facts do not support Husband's contention that St. Charles County was not her residence at the time of filing; they merely demonstrate Wife's desire to, at some point, live independently from her grandparents, which she first attempted to do within St. Charles County. Although she may have hoped to move to another county someday, her testimony at trial indicated her intention—despite her earlier hopes—to remain at her grandparents' home in St. Charles County indefinitely to care for them. There was no evidence that Wife ever intended to return to the City of St. Louis. These utterances and actions—before, during and after the move to her grandparents' home—support the conclusion that Wife was a resident of St. Charles County for purposes of venue in this dissolution action.

Husband's motion to dismiss for lack of proper venue included an alternative request to transfer the case to the City of St. Louis, where he resided, under section 452.300.5. Husband has wholly failed to develop any argument to support this issue in his brief on appeal. He points to no evidence in the record to establish—and makes no argument regarding—either of the grounds on which the trial court would have had discretion to transfer this case to Husband's county of residence. See section 452.300.5(1) and (2) (children resided there for ninety days prior to petition or transfer serves best interest of children).

Point I is denied.

In his second point, Husband challenges the trial court's custody decision. This judgment must be affirmed unless it is unsupported by substantial evidence, is against the weight of the evidence, misstates or misapplies the law. Thorp v. Thorp, 390 S.W.3d 871, 877 (Mo.App.E.D.2013). A trial court's custody determination is afforded greater deference than other decisions. Id. In fact, we presume that the trial court reviewed all of the evidence and based its decision on the child's best interests. Id. We view the evidence and any reasonable inferences therefrom in the light most favorable to the judgment—disregarding contradictory evidence—but we will not reweigh the evidence. Id. We defer to the trial court's credibility determinations on appeal because of its superior position to observe the sincerity and character of witnesses, as well as other intangibles not evident from the record. Mehler v. Martin, 440 S.W.3d 529, 534 (Mo.App.E.D.2014). The trial court's decision is afforded great deference, even if the evidence may have supported another conclusion. Thorp, 390 S.W.3d at 877. In sum, we must affirm a custody determination unless we are firmly convinced that the welfare of the child requires an alternative arrangement. Id.

In its judgment, the trial court expressly stated that it had considered the public policy stated in Section 452.375.4: that both parents have "frequent, continuing and meaningful contact" with the children as long as it is in the children's best interest. The court also listed each of the specific factors set forth in section 452.375.2(l)-(8) and stated its findings thereon underneath. Section 452.375.2 provides, in relevant part:

The court shall determine custody in accordance with the best interests of the child. The 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 functions 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....

(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.

Having considered these factors, the trial court concluded that joint legal custody was in the best interest of the children and ordered Husband and Wife to confer with one another regarding decisions about the children. The court noted that the parties had difficulty communicating and reaching consensus in the past; therefore, it ordered that if Husband and Wife cannot agree after good faith efforts to communicate, then Wife will make the final decision.

The trial court awarded sole physical custody of both children to Wife, noting that she had been the primary caretaker from birth—both during the marriage and since the separation—up to the time of trial. The court listed Wife's extensive involvement in all of the children's educational and medical needs. It granted Husband three hours of visitation on a weekday evening with advance notice to Wife, but eliminated the weekday overnight visits from the parenting plan at Husband's request. Husband continued to have alternating weekend visitation, as he did during the separation.

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