Shelby v. Shelby

• Decision Date: 19 February 2004
• Docket Number: No. 24910.,24910.
• Citation: 130 S.W.3d 674
• Parties: Stephanie Reeves SHELBY, Respondent, v. Jeffrey Joseph SHELBY, Appellant.
• Court: Missouri Court of Appeals

130 S.W.3d 674

Stephanie Reeves SHELBY, Respondent, v. Jeffrey Joseph SHELBY, Appellant.

No. 24910.

Missouri Court of Appeals, Southern District, Division Two.

February 19, 2004.

Motion for Rehearing or Transfer to Supreme Court Denied March 12, 2004.

Application for Transfer Denied April 27, 2004.

Francis J. Murphy, III, K. Aileen Simpson, Cordell & Cordell, P.C., St. Louis, for appellant.

King E. Sidwell, Blanton, Rice, Sidwell, Nickell & Cozean, L.L.C., Sikeston, for respondent.

JOHN E. PARRISH, Judge.

Jeffrey Joseph Shelby (husband) appeals child custody, child support, and distribution of marital property provisions of a dissolution of marriage judgment.¹ This court affirms.

The trial court dissolved the marriage of Stephanie Reeves Shelby (wife) and husband, awarded the parties joint legal custody of their two children (boys born August 17, 1995, and March 28, 1997), granted wife primary physical custody of the children, distributed marital property and debts, set aside non-marital property, and ordered husband to pay child support in the amount of $1,500 per month. Husband was awarded visitation at specified times including designated holidays and "special days."

This case was tried before the trial court without a jury and is, therefore, reviewed as provided by Rule 84.13(d). The judgment will be affirmed unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Hall v. Hall, 53 S.W.3d 214, 217 (Mo.App.2001). The evidence and all inferences drawn therefrom are viewed in the light most favorable to the judgment. Id. Deference is granted to the trial court's determinations regarding the credibility of witnesses. Id.

Husband's first point on appeal asserts the trial court erred in excluding testimony of his psychiatrist, Dr. Browne-Barnum, as a rebuttal witness. Husband argues this was error because records belonging to that witness were relied on to refute testimony of another witness; that husband should have been permitted to present testimony of Dr. Browne-Barnum relative to those records.

Point I is directed to the trial court's child custody determination. Husband called Dr. David Clark, a psychologist, as a witness. Husband had retained Dr. Clark to conduct a parental evaluation of husband and the children. The day before trial began, husband disclosed Dr. Clark's notes that indicated he had relied, in part, on a psychological assessment Dr. Browne-Barnum made of father. Dr. Browne-Barnum had not been designated as an expert witness to be called at trial. Wife subpoenaed, obtained, and used Dr. Browne-Barnum's records for use in cross-examining Dr. Clark.

Dr. Clark stated that tests he performed did not indicate husband was bipolar and that he did not believe husband was bipolar; that although Dr. Browne-Barnum had previously diagnosed husband as bipolar, Dr. Clark disagreed with that diagnosis. On cross-examination, Dr. Clark stated that if husband were, in-fact, bipolar and did not take medication, such condition could interfere with husband's parenting. Dr. Clark again confirmed his disagreement with the earlier bipolar diagnosis.

Husband called another witness after Dr. Clark testified. He then sought to call Dr. Browne-Barnum "somewhat as a rebuttal" to the cross-examination of Dr. Clark. Husband's counsel told the trial court he originally had no intention of calling Dr. Browne-Barnum as a witness; that she had, therefore, not been disclosed prior to trial. Husband argued that because wife had used Dr. Browne-Barnum's records, husband desired the opportunity to call her to properly defend against the inferences drawn from those records. Wife objected to Dr. Browne-Barnum being permitted to testify. The trial court sustained the objection.

Husband made an offer of proof in which Dr. Browne-Barnum testified as to her treatment and diagnosis of husband. She testified by way of offer of proof that she began treating husband in December 1999; that she initially diagnosed husband with "bipolar II disorder, depressed, severe without psychotic features, and possible attention deficit hyperactive disorder of adulthood." By September 2000 her diagnosis changed. Husband was no longer diagnosed as bipolar. Husband had not been prescribed medication for bipolar disorder after September 2000. Dr. Browne-Barnum gave the further opinion that even if husband had bipolar disorder, he would still be able to be a good parent based on his functional abilities. Wife objected to the offer of proof. The trial court sustained the objection and denied the offer of proof. Husband argues the trial court erred in denying him the right to present Dr. Browne-Barnum as a witness; that the denial of his request to present her testimony was an abuse of discretion.

Husband argues that language used in a trial court document dated December 14, 2001, that was denominated a "judgment" reveals the trial court's reliance on the preliminary diagnosis included in Dr. Browne-Barnum's notes. Language included in the "judgment" referred to the "prior history and mental condition" of husband. The December 14, 2001, "judgment" was replaced by an "Amended Partial Findings of Fact and Conclusions of Law[,] Judgment and Decree of Dissolution of Marriage" filed April 10, 2002, that, together with a "Second Amended Findings of Fact and Conclusions of Law, Judgment and Decree of Dissolution of Marriage" filed October 23, 2002, make up the final judgment that is appealed. See n. 1, supra. The amended document that is part of the judgment before this court does not reference a mental condition of husband. The trial court states in its amended document that "based on the prior history of [husband], [it] doubts the ability of [husband] to properly care for the children as the full time primary custodian."

Assuming, arguendo, that the trial court erred in denying father's request to present the testimony of Dr. Browne-Barnum, in order for father to prevail on Point I, the error would have to be reversible error. Exclusion of expert testimony is reversible error only when its inclusion would have changed the outcome of the case. Missouri Bd. of Nursing Home Administrators v. Stephens, 106 S.W.3d 524, 529 (Mo.App.2003); See Rule 84.13(b). There was evidence that husband had been diagnosed with, and was on medication at the time of trial for, depression, anxiety, and attention deficit hyperactivity disorder. This, together with other factors applicable to Point IV discussed infra, were what the trial court relied on in awarding custody. The denial of husband's request to present testimony of Dr. Browne-Barnum did not prejudice husband. If erroneous, it was harmless error. Point I is denied.

Point IV also relates to husband's complaint of trial court error in awarding child custody. Husband contends the trial court erred in awarding primary physical custody of the parties' two children to wife and "ordering her to reside within a 40 mile radius of [husband's] home." He argues this was not in the children's best interests and was not supported by the evidence because "[wife] removed the children from their home and family without notifying [husband], [wife's] conduct and affairs during the marriage were shown to have a potential adverse effect on the minor children and [wife] residing within 40 miles of [husband's] home hampers [husband's] visitation with the children."

The evidence before the trial court indicated that neither party prioritized parenting during the marriage. The parties abused alcohol and drugs and were frequently away from the children while "partying." As between the parties, however, wife provided the majority of care for the children. Husband's lifestyle during the marriage was dominated by hunting activities. He was frequently away from home either hunting or at "deer camp." During those times wife took care of the children, got them out of bed, bathed, clothed, and cooked for them. Testimony at trial was that husband played with the children but did not provide care for them. Husband became more active in caring for the children after the separation. The trial court found:

The children need to maintain the stability and continuity of an ongoing arrangement for custody. The children have a close personal attachment to their mother. The court, based on the prior history of [husband], doubts the ability of [husband] to properly care for the children as the full time primary custodian. He lacks the parenting skills and abilities of the natural mother, [wife]. The best interest and general welfare of the minor children would best be served by awarding the primary physical custody of the minor children to [wife].

R.J.A. v. G.M.A., 969 S.W.2d 241 (Mo. App.1998), explains:

Upon review, this court presumes that a trial court awards custody with the child's best interests as its ultimate concern. [In re Marriage of Berger, 950 S.W.2d 307 (Mo.App.1997)] at 310[4]. This presumption arises because of the trial court's superior position to judge the credibility of witnesses and their character, sincerity, and other intangibles that might not be completely shown in the cold record. Id. A trial court is free to believe or disbelieve all, part, or none of any witness' testimony. Id. at 310[5]. Moreover, an appellate court will accord a trial court's decision in custody matters greater deference than in other cases. Id. at 310[6].

Id. at 244.

Initially, following their separation, wife and husband alternated living in the marital home with the children. Husband harassed mother and destroyed her property. Husband had a police officer present for the exchange of custody, which frightened the children. Husband tapped the telephone lines, destroyed wife's clothes and photographs, and committed other acts of harassment.

Wife subsequently moved the two children from the marital home. She relocated to Springfield, Missouri. Wife claimed the move was...