Rothfuss v. Whalen, 58581

• Decision Date: 28 June 1991
• Docket Number: No. 58581,58581
• Citation: 812 S.W.2d 232
• Parties: Richard J. ROTHFUSS, Petitioner/Appellant, v. Pamela Ann WHALEN, Respondent.
• Court: Missouri Court of Appeals

Page 232

812 S.W.2d 232

Richard J. ROTHFUSS, Petitioner/Appellant, v. Pamela Ann WHALEN, Respondent.

No. 58581.

Missouri Court of Appeals,

Eastern District,

Division Two.

June 28, 1991.

John B. Gray, Florissant, for petitioner-appellant.

Richard R. Veit and Mary Kay Stergos, Hazelwood, for respondent.

AHRENS, Judge.

Husband appeals from an order modifying the child support and custody provisions of the decree that dissolved the parties' marriage. We affirm.

On February 6, 1984, a decree of dissolution ended the parties' marriage. The decree granted to the parties joint legal custody of their minor children, Douglas and Darren, born August 6, 1969, and March 12, 1974, respectively. Primary physical custody was awarded to husband and temporary custody with reasonable visitation rights to wife. Husband was ordered to pay child support to wife during her periods of temporary custody.

After wife moved to Nevada, the decree was modified on June 26, 1984, to hold for naught the portions providing for joint custody and for husband's payment of child support to wife. Husband was awarded custody, with specific temporary custody and visitation rights reserved to wife.

In June of 1987, Darren travelled to Nevada to visit with wife. At that time, Darren informed husband that he wished to remain in Nevada, and husband allowed Darren to stay. Wife on April 28, 1989, filed a motion to modify the decree of dissolution, seeking primary custody of Darren, attorneys' fees, and child support retroactive to the motion's filing date. Husband was served with the motion on May 21, 1989.

Husband on August 25, 1989, filed in Nevada a petition for modification of the decree of dissolution and for assumption of jurisdiction under the Uniform Child Custody Jurisdiction Act. The Nevada court on December 6, 1989, awarded joint legal custody of Darren to both parties.

The subject of the appeal now before us is the Missouri trial court's ruling on wife's motion to modify, filed April 28, 1989. The trial court sustained wife's motion and awarded the parties joint legal custody of Darren, with primary custody to wife and temporary custody and visitation to husband for one week at spring break and Christmas, four weeks during summer, and at such other times as husband and Darren agree. The court further ordered husband to pay to wife $660.00 per month child support, retroactive to May 21, 1989. Lastly, the court ordered wife to pay the transportation costs to and from Nevada for Douglas' visitation, and ordered husband to pay the costs to and from St. Louis for Darren's visitation. The parties stipulated to a stay of any further proceedings in Nevada and to the trial court's consideration of attorneys' fees incurred in the Nevada proceedings. They further stipulated that the trial court's judgment be registered with the Nevada court, and that upon such registration the Nevada proceedings be dismissed. Husband appeals from the trial court's order.

We first consider a motion taken with the case. Wife moves to strike the "scope of review" section of husband's brief for failure to comply with Rule 84.04. Although not in technical compliance with the Rule, husband's comments consist merely of broad statements of law and fact included in other portions of his brief; their inclusion does not impede our determination of the case on the merits. See Maxbar Rlty. v. The Great A. & P. Tea Co., 627 S.W.2d 81, 82 (Mo.App.1981). Accordingly, wife's motion to strike is denied.

In his first point, husband challenges the trial court's determination of custody, seeking a longer period of defined temporary custody during the summer. He also challenges the court's order requiring him to pay the costs of transporting Darren to and from St. Louis for the periods of temporary custody awarded husband.

In reviewing an order modifying a dissolution of marriage decree, this court is limited to determining whether the order is supported by substantial evidence, whether it is against the weight of the evidence, or whether it erroneously declares or applies the law. Wiebusch v. Deke, 762 S.W.2d 521, 524 (Mo.App.1988); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc. 1976). The trial court is vested with broad discretion in determining child custody, because it is in a better position to consider all of the facts bearing on custody and the best interests of the children. Griggs v. Griggs, 707 S.W.2d 488, 491 (Mo.App.1986). This court is to affirm the decision of the trial court unless firmly convinced the welfare of the children requires a different disposition. Id. With respect to the custody provisions in the present case, we are not so convinced.

We find no abuse of discretion in the trial court's award to husband of four weeks' temporary custody during the summer. The record indicates that Darren at the time of the modification hearing had lived with wife in Nevada for 3 1/2 years. During this period, Darren made friends, located part-time employment, and developed a serious interest in golf, hoping to earn a golf scholarship as a means of attending college. Darren expressed a strong preference for remaining in Nevada and appears to have adjusted well. Further, Darren specifically stated that because of his employment and golf activities, summer visits with husband would be difficult to arrange. The trial court found that husband had stated: "[A]lthough Darren's wishes should be considered, they should not be paramount and other factors, among them Petitioner's poor health should be taken into consideration by the Court...." We are entitled to presume the dissolution court considered all the evidence and awarded custody in the best interest of the child. In re Marriage of Stuart, 805 S.W.2d 309, 313 (Mo.App.1991). We find that the court in making its custody determination neither considered Darren's preferences decisive nor failed to consider husband's ill health, as husband asserts. Rather, the court properly considered both as relevant factors under § 452.375.2, RSMo (Supp.1990).

Husband cites Siegenthaler v. Siegenthaler, 761 S.W.2d 262 (Mo.App.1988), arguing that the custody determination in that case is somehow the "minimally appropriate" period of custody to be applied in every case. We disagree. The custody decision in Siegenthaler was based upon the determination that, upon the particular facts of the case, the welfare of the children required a disposition different from the one entered by the trial court. Id. at 266. In contrast, the facts of the present case support the trial court's custody determination. A good environment and stable home are considered the most important factors in custody cases, Petty v. Petty, 760 S.W.2d 555, 557 (Mo.App.1988), and the evidence here indicates that both these considerations are furthered by the trial court's order. We have reviewed the record with respect to husband's allegations that wife has interfered in his relationship with Darren. Although there was conflicting evidence, the trial court was in a better position to consider it. We find substantial evidence in the record to support the trial court's action, and we uphold its findings because we are not convinced that Darren's welfare requires a different disposition of custody. See Crabtree v. Crabtree, 802 S.W.2d 567, 569 (Mo.App.1991). Husband has failed to rebut the presumption of the correctness of the court's ruling.

In his next subpoint, husband alleges the trial court erred in requiring him to pay the costs of transporting Darren to and from St. Louis for periods of temporary custody with husband. Husband argues that because wife caused the need for the transportation, it is appropriate to impose those costs on her. In support of his argument, husband cites cases in which one parent removes a child from the court's jurisdiction: Koenig v. Koenig, 782 S.W.2d 86 (Mo.App.1989); Ronzio v. Ronzio, 673 S.W.2d 100 (Mo.App.1984); and Jaudes v. Jaudes, 715 S.W.2d 329 (Mo.App.1986). We find these cases inapposite to the situation now before us, where the child after visiting one parent chooses to remain, and the other parent consents to the change of custody.

At the time of trial, the existing decree, as modified, gave primary custody of both children to husband and required wife to pay the transportation costs for her periods of temporary custody with the children. However, for 3 1/2 years prior to trial, Darren had been living with wife. During this time, husband paid the costs of transporting Darren to and from St. Louis for visitation with husband, while wife paid the costs of transporting Douglas to and from Nevada for visitation with her.

While we recognize that an order apportioning the expense of exercising child custody rights need not mirror the parties' financial status, the financial circumstances of the parties is an important consideration in apportioning the expense. Ronzio, 673 S.W.2d at 101. The trial court has broad discretion in making the apportionment, and the order is reviewed only for a manifest abuse of that discretion. Id.

We find no abuse of discretion on the facts before us. The record indicates that husband's gross monthly income at the time of trial was nearly $7,000.00, excluding a yearly bonus of more than $16,000.00. Wife's gross monthly income at the time of trial was approximately $1,750.00, not including half of a $10,000.00 gift the trial court imputed to wife. We cannot say the court abused its discretion in apportioning the transportation expenses, given the parties' incomes and the fact that the parties had implemented for 3 1/2 years prior to trial the same arrangement sanctioned by the court in its modification. The trial court could properly have found that Darren's move to Nevada and the accompanying expense constituted a sufficiently substantial change in circumstances to justify a second modification as to transportation costs. Additionally, it is appropriate for husband to pay Darren's transportation...