Seaman v. Seaman

• Decision Date: 13 February 2001
• Citation: Seaman v. Seaman, 41 S.W.3d 889 (Mo. App. 2001)
• Parties: (Mo.App. W.D. 2001) . David L. Seaman, Appellant, v. Rowena D. Seaman, Respondent. WD58227 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

41 S.W.3d 889 (Mo.App. W.D. 2001)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

David L. Seaman, Appellant, v. Rowena D. Seaman, Respondent.

WD58227

Missouri Court of Appeals Western District

Handdown Date: 02/13/2001

Appeal From: Circuit Court of Platte County, Hon. Daniel M. Czamanske

Counsel for Appellant: Susan Long

Counsel for Respondent: Mary Drape

Opinion Summary: Husband and Wife each sought custody of children in dissolution action, and Wife sought to relocate with children out of state. The Circuit Court, Platte County, Daniel M. Czamanske, J., granted Wife primary physical custody and allowed relocation. Husband appealed. The Court of Appeals, Lowenstein, J., held that: (1) allowing Wife primary physical custody of children was in children's best interests, and (2) Wife's proposed relocation was made in good faith and was in children's best interests.

Opinion Author: Harold L. Lowenstein, Judge

Opinion Vote: AFFIRMED. Holliger, P.J., and Newton, J., concur.

Opinion:

David Seaman (Father) and Rowena Seaman (Mother) married May 27, 1987, in Smithville, Mo. They have two daughters, Brittany Nicholle, born February 10, 1990, and Katherine Elizabeth (Katie), born May 29, 1992. Father and Mother have resided in Edgerton, Mo., with their children since 1992. In this dissolution of marriage action, the parents were awarded joint physical and joint legal custody. However, Mother was permitted to remove the children to Omaha, Neb., and the court awarded Father liberal visitation rights.

Father contests two of the trial court's rulings. He argues first that the court erred in ruling that children shall reside with Mother and second that the court erred in permitting Mother to remove the children from Missouri. Further facts are set forth below as they relate to each point on appeal.

Standard of Review

The trial court's judgment will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). An appellate court presumes that the best interests of the child motivate the trial court. Buschardt v. Jones, 998 S.W.2d 791, 796 (Mo. App. 1999)(citation omitted). As such, "the trial court's assessment of what serves the child's best interests will be affirmed unless the appellate court is firmly convinced that the child's welfare requires some other disposition." Id.; Boling v. Dixon, 29 S.W.3d 385, 387 (Mo. App. 2000). Where there is contradictory evidence, an appellate court defers to the trial court's credibility determinations. Buschardt, 998 S.W.2d at 796. "Moreover, because of the trial court's unique position for determining the credibility, sincerity, character, and other intangibles of the witnesses, we presume awards of custody are made in the best interests of the children." Flathers v. Flathers, 948 S.W.2d 463, 471 (Mo. App. 1997)(citation omitted).

Analysis

I.

Father argues in his first point is that the trial court erred in finding that the children shall reside with Mother because there was no substantial evidence to support the award. Custody is determined by considering the best interest of the child and the following factors set out in section 452.375.2, RSMo. 1998:¹

(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. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and the parent or other family or household member who is the victim of domestic violence from any further harm;

(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.

In this case, the trial court found: factors one, two, five and six were applicable to both parents; factors three and four weighed in favor of Mother; factor seven weighed in favor of Father.² In arguing that there was not substantial evidence to support the trial court's ruling, Father contests the trial court's determination of factors three, four, five and six. Each of these factors is considered below.

Factor three requires the trial court to consider the relationships of the children with those who may affect their best interests. Section 452.375.2(3). Father argues that factor three weighs more heavily in his favor because he took the girls to ride their horses and was involved in 4-H (and that the children will not be able to take their horses to Omaha), because he took the children to birthday parties, because of testimony that he was a patient parent while Mother was often impatient and used profanity around the children, and because of the children's frequent interaction with cousins, aunts and uncles in Edgerton.

There was also evidence, however, that Mother helped the children with their homework, took them to the doctor, and attended field trips, Brownies and church with the girls. Mother also testified that she was the primary caregiver. In Omaha, the girls will live with their grandparents, and several of their aunts, uncles and cousins live nearby. As such, under the standard of review, there was substantial evidence to support the trial court's finding regarding the children's relationships with their parents and others who may affect them.

The fourth factor that the trial court must consider is which parent is more likely to allow the children frequent, continuing and meaningful contact with the other parent. Section 452.375.2(4). Both parents testified about problems with the other parent in spending time with the children. Father cited an incident where Mother kept the children a day longer than she anticipated without providing him proper notice. Mother stated at trial that Father at times denied her contact with the girls. This court defers to the trial court's determination of credibility issues. Buschardt, 998 S.W.2d at 796. Thus, although there was conflicting testimony, there was substantial evidence to support the trial court's finding that Mother would be the parent more likely to allow her former spouse more contact with the children.

Factor five concerns the children's adjustment to their home, school, and community. Section 452.375.2(5). Father argues that the trial court erred in finding that this factor did not weigh in favor of either parent because the children would continue to reside in the same home as they had since 1992 if he were awarded primary physical custody. He argues that they were doing well in school, have many friends there, and participate in Brownies. Both of Mother's parents have been substitute teachers in Omaha, and Mother's mother testified that the faculty in the girls' future school district are congenial and "very good." Also, Mother's parents testified that their other three children and their grandchildren all reside within ten minutes of their home, where Mother and the girls would live. Further, there was extensive testimony and evidence that the home in Edgerton is dilapidated (leaky roof, rotting porch, wild animals entering the home, poor air conditioning) and that the grandparents' home in Omaha is updated and more spacious. Again, under the standard of review, the trial court's finding as to the fifth factor was supported by substantial evidence.

Finally, Father argues that the trial court erred in finding that the sixth factor, concerning the mental and physical health of all individuals involved, did not weigh heavily in favor of either parent. Section 452.375.2(6). In so arguing, Father cited an incident where Social Services investigated a complaint involving a spanking Mother gave to Katie. However, the trial court found that there was no history of abuse or physical or mental problems in the family,³ and the record supports that finding. There was no indication that any action resulted from the investigation by Social Services; there was no report on file from the investigating agency; there was no testimony, even from Father, that Mother abused the children. Moreover, section 452.375(6) speaks of a "pattern of domestic violence." To show a pattern, the court must find that incidents during a marriage are representative of typical behavior. Hamilton v. Hamilton, 886 S.W.2d 711, 715 (Mo. App. 1994)(two incidents of spousal abuse during twenty-year marriage did not constitute a "pattern of domestic violence" requiring trial court to enter written findings of fact and conclusions of law in award of joint custody). In the instant case, there was not evidence even of one incident of abuse, let alone a pattern. As such, the trial court's ruling was supported by substantial evidence. This point is denied.

II.

Father next argues that the trial court erred in permitting Mother to remove the children from Missouri because it did not consider the four requisite factors for relocation.

Under section 452.377.9, "[t]he party seeking to relocate...