Sewell-Davis v. Franklin

• Decision Date: 25 October 2005
• Docket Number: No. WD 64710.,WD 64710.
• Citation: 174 S.W.3d 58
• Parties: Brendan D. SEWELL-DAVIS by His Next Friend Russell E. Davis, and Russell E. Davis, Individually, Respondent, v. Jennifer Sewell FRANKLIN, Appellant.
• Court: Missouri Supreme Court

174 S.W.3d 58

Brendan D. SEWELL-DAVIS by His Next Friend Russell E. Davis, and Russell E. Davis, Individually, Respondent, v. Jennifer Sewell FRANKLIN, Appellant.

No. WD 64710.

Missouri Court of Appeals, Western District.

October 25, 2005.

Edward Leon Campbell, Kirksville, MO, arguing on behalf of appellant.

Howard Madison Hickman, Kirksville, MO, arguing on behalf of respondent.

Before JAMES M. SMART, JR., P.J., HAROLD L. LOWENSTEIN, and LISA WHITE HARDWICK, JJ.

PER CURIAM.

Jennifer Sewell Franklin (Mother) appeals the trial court's judgment that awarded her joint physical and joint legal custody of her biological child, Brendan, with the child's biological father, Russell E. Davis (Father), and designated Father's as the child's primary residence.

Brendan was born in November 2000. He has cerebral palsy. Brendan's parents, who have never been married, lived together intermittently both before and after his birth. The couple separated for the final time in January 2003, when Brendan was just a little over two years old.

Father brought a petition seeking a declaration of paternity, custody, and support. A bench trial was held, and the court entered judgment in July 2004. The court determined that Brendan was Father's biological child and awarded joint legal and joint physical custody to the parties. The court adopted Father's proposed parenting plan and designated his residence as the child's primary residence. The court awarded Mother specific periods of custody and ordered her to pay child support.

On appeal, Mother alleges four instances of trial court error. We remand for additional findings.

Standard of Review

As in other court-tried cases, we will affirm the trial court's judgment unless it is unsupported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Loumiet v. Loumiet, 103 S.W.3d 332, 335-36 (Mo.App.2003) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). The trial court is afforded broad discretion in awarding child custody, and we will affirm its decision unless we are firmly convinced that the welfare of the child requires a different disposition. Id. at 336.

Lack of Findings on Custody

In her first point, Mother argues that the trial court erred in failing to make specific findings with regard to its decision to award joint physical and legal custody to the parties. Mother says the court was required under section 452.375.6, RSMo,¹ to make specific findings because the parties failed to agree as to custody and because the court rejected Mother's proposed custody arrangement.

Where the parties have not agreed to a custodial arrangement, section 452.375.6 requires the court to include written findings in the judgment based on the public policy set forth in section 452.375.4.² The court is to consider all relevant factors, including the factors listed in section 452.375.2(1)-(8).³ See § 452.375.6. In view of the public policy of the State that children should have "frequent, continuing and meaningful contact with both parents," if the parties have not agreed to a custodial arrangement, the court shall include a finding as to the matter of frequent, continuing and meaningful contact with the parents, and also a finding detailing the specific relevant factors that made a particular arrangement in the best interest of the child. § 452.375.6. Subsection .6 further provides that such findings must be made if the court rejects a proposed custodial arrangement offered by both parents.

With regard to the section 452.375 findings, the trial court in this case stated only that "[e]ach of the applicable and relevant factors in subdivision 1-8 as set forth at § 452.375.2 were duly considered in accordance with the best interest of the child." The court did not make a finding as to the need to promote frequent, meaningful contact with both parents; nor did the court refer to or describe the factors it determined to be relevant.

According to Mother, while Father had requested joint physical and legal custody, she was seeking sole physical custody and joint legal custody. Mother submitted a proposed judgment and parenting plan in which she requested joint legal custody and "primary physical custody." Although Mother inadvisedly used the term "primary physical custody," she actually, she says, was requesting "sole physical custody." She points out that she clearly and specifically asked for sole physical custody at trial.

Father says the court was not required to make specific findings under section 452.375.6, because the parties did agree as to the custodial arrangements, but only disagreed about the actual parenting time (i.e., visitation time) and the primary residence. He argues that Mother's plan, in essence, was for joint physical and legal custody, with hers designated as the primary residence. Father suggests that both parties were seeking joint physical custody because the parenting plans contained similar schedules, with schedules reversed as to the respective parents.

Father relies upon Simon-Harris v. Harris, 138 S.W.3d 170, 178 (Mo.App.2004), for the proposition that where parties have agreed to joint physical custody but only disagree as to the division of parenting time, the court is not required to make the findings required by section 452.375.6. Because we have a contest of semantics, it is not clear that Simon-Harris applies here. Despite the ambiguity of Mother's proposed judgment and parenting plan, she did, at trial, in fact ask for sole physical custody. In any event, the semantic contest may be irrelevant. In Buchanan v. Buchanan, 167 S.W.3d 698, 702 (Mo. banc 2005), the parties had agreed on joint physical and legal custody, but they did not agree on the residence address for the child or on a parenting plan. Id. The Court said:

While these may be sub-issues of custody, they were contested and required the court's resolution. So long as any issue or sub-issue of custody is subject to contest between the parties and resolution by the court, written findings that include discussion of the applicable factors from section 452.375.2 are required.

Id. The Supreme Court reversed the judgment and remanded the case for findings.

Buchanan governs this case. Father acknowledges that the parties did not agree on the parenting plan, the visitation arrangements, or the child's primary residence. Thus, as in Buchanan, the trial court was mandated by section 452.375.6 to make findings based on the public policy set forth in section 452.375.4 and the specific relevant factors that made the custody arrangement in the child's best interests.

The judgment is reversed, and we remand to the trial court with instructions to make those mandatory findings.⁴

Ex Parte Communications

Mother next argues that the trial court erred in failing, sua sponte, to recuse itself or to grant her request for a new trial on the basis of the court's inappropriate ex parte communications with Father and Father's attorney on the day of trial.

At a hearing on Mother's motion for new trial, Mother presented two witnesses who both testified that they witnessed an ex parte communication between the trial judge, Father, and Father's attorney in the hallway on the day of trial. One witness said the judge spoke "briefly" to Father and Father's attorney. One witness said the judge stood and talked for "about five minutes." Both had the belief that it was against the rules, and unfair, for the judge to talk to only one side, regardless of the subject matter. The alleged communication took place during the lunch break, just before the presentation of Mother's evidence. The court examined the witnesses about the witness' observation of the encounter, but did not at that time either refute the allegation or explain the nature of the communication. With his response to the new trial motion, Father submitted three affidavits from his family members stating that "no meeting whatsoever" took place. Father presented no testimony at the hearing. At oral argument, Father concedes that there was a communication between the court, Father's attorney, and Father, but contends that the suspicions of Mother's witnesses were incorrect.

Mother says the court was obliged to recuse itself, sua sponte, under both Canon 3B(7) and Canon 2 of Rule 2.03.⁵ Canon 3B(7) prohibits a judge from initiating, permitting or considering ex parte communications or "other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding" with a few exceptions that are not applicable here. The Commentary states: "To the extent reasonably possible, all parties or their lawyers shall be included in communications with a judge." Rule 2.03, Canon 3B(7). Canon 2 requires a judge to avoid impropriety and the appearance of impropriety in all his activities. Provision A says, "[a] judge shall ... act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." The Commentary says, "[t]he test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired." Rule 2.03, Canon 2A.

Father states that even if a communication did take place, Mother has failed to show that the alleged ex parte communication was about a matter pending before the court, as required under Canon 3B(7). He notes that the record does not show what the subject matter of the alleged ex parte communication was, nor what information was communicated. With regard to Canon 2, Father points out that the appearance of impropriety is to be measured objectively based on whether a "reasonable" person would have questioned the impartiality of the judge. See In the Interest of K.L.W., 131 S.W.3d 400, 405 (Mo.App.2004). He says Mother's two witnesses, one of whom was her mother, were...