Simon-Harris v. Harris

• Decision Date: 13 July 2004
• Docket Number: No. WD 63168.,No. WD 62960.,WD 62960.,WD 63168.
• Citation: 138 S.W.3d 170
• Parties: Shelley Sue SIMON-HARRIS, Appellant-Respondent, v. Mark Jon HARRIS, Respondent-Appellant.
• Court: Missouri Court of Appeals

138 S.W.3d 170

Shelley Sue SIMON-HARRIS, Appellant-Respondent, v. Mark Jon HARRIS, Respondent-Appellant.

No. WD 62960.

No. WD 63168.

Missouri Court of Appeals, Western District.

July 13, 2004.

Appeal from the Circuit Court, Boone County, Joseph D. Holt, J Brian Sleeth, Columbia, MO, for appellant-respondent.

Mary-Corinne Corley, Kansas City, MO, for respondent-appellant.

Before JOSEPH M. ELLIS, C.J., THOMAS H. NEWTON and LISA WHITE HARDWICK, JJ.

THOMAS H. NEWTON, Judge.

Ms. Shelley Sue Simon-Harris and Mr. Mark Jon Harris appeal the judgment of the trial court dissolving their marriage. Both parties appeal the child support award. Because the trial court did not follow the two-step procedure for determining child support, we must reverse. Ms. Simon-Harris appeals the award of joint physical custody and the parenting schedule, claiming that the trial court did not issue the required findings and that its judgment was not in the child's best interest. In this instance, the parties had agreed to the custody arrangement, so written findings were not required. We further find that the parenting schedule is in the child's best interests. But the trial court did not provide a proper parenting plan. We affirm that portion of the decree setting out custody and the schedule, but we reverse for a new parenting plan. Mr. Harris appeals the grant of the dependency exemption to Ms. Simon-Harris and the award of money to her for a dispute over the exemption in 2002. Because the trial court did not abuse its discretion in granting Ms. Simon-Harris the exemption and because there was sufficient evidence to support awarding her the money she lost when she could not claim the exemption in 2002, we affirm that portion of the decree. We affirm in part and reverse in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ms. Simon-Harris and Mr. Harris were married on September 6, 2001, and they separated that same day. One child was born of the marriage, Earen¹ C. Harris, on February 26, 2002.

The parties never established themselves in one home together. Ms. Simon-Harris resided in Columbia, Missouri, before and after the marriage. Mr. Harris resided in Calumet, Michigan, both before and after the marriage. According to Mr. Harris, they had agreed that Ms. Simon-Harris would move to Michigan, but she later declined. On October 11, 2002, Ms. Simon-Harris filed a petition for dissolution of the marriage. Because the parties never lived together or combined their resources, there was no marital property or debt to divide. The only issues during the dissolution action, and on appeal, relate to Earen.

Ms. Simon-Harris has been employed by Kraft Foods for thirteen years, and has worked at the Columbia facility for approximately four years. She works three days a week in Columbia and two days a week in Kirksville. Michigan Tech University employs Mr. Harris and he has custody of his two daughters from his prior marriage, Lori and Rana. Lori was 18 at the time of trial and Rana was 16.

Mr. Harris traveled to Columbia the day after Earen's birth. Shortly after Earen's birth, Ms. Simon-Harris went to Michigan and stayed with Mr. Harris for awhile so that he could spend time with Earen. They also traveled together to Colorado at that time, along with Lori and Rana, to visit some relatives.

When Ms. Simon-Harris returned to Columbia, Mr. Harris did not see Earen that many times. Ms. Simon-Harris maintains that he only requested visitation three times and that she denied him once, and only because she had made plans for Earen to see other relatives. She also claims that he would not give her much notice for the requested visitation. She claims that the only other efforts Mr. Harris made to see Earen consisted of him showing up unannounced at her door and staying only ten to fifteen minutes. Mr. Harris, on the other hand, claims that Ms. Simon-Harris made it difficult, if not impossible, for him to see Earen. She would not allow him to have any overnight visitation or to see Earen alone, and she denied his requests to see Earen. He states that he showed up unannounced because that was the only way he could have any time with Earen and that he simply gave up trying to get her to allow him to have any visitation because she was so uncooperative.

The parties also dispute whether Mr. Harris made any financial or material support for Earen. Ms. Simon-Harris claims that he made no effort, although she says nothing about what type of support Mr. Harris provided during the time that they were all together shortly after Earen's birth. Mr. Harris claims that he provided total support for Earen and Ms. Simon-Harris during the two months they were together. He also asserts that he sent her one check for $200, which she never cashed. She denies ever receiving this check. And he claims that he sent some clothes and toys.

In the petition for dissolution filed by Ms. Simon-Harris, she requested joint legal custody and primary physical custody subject to Mr. Harris' rights of reasonable visitation. In her proposed parenting plan, she stated that Mr. Harris would be awarded reasonable residential time as the parties agree to it, but he could not have any overnight visitation until Earen reached the age of five. However, during the trial, she withdrew the plan. In Mr. Harris' response to the petition, he requested joint legal custody too, but also primary physical custody.

By agreement of the parties, a temporary custody and child support arrangement was adopted by the trial court. Under that temporary order, the parties were awarded joint legal and joint physical custody. Under the physical custody schedule, Mr. Harris would have physical custody of Earen for the first week of each calendar month, from Sunday to Sunday, and he would pay $400 a month in child support; and Ms. Simon-Harris had physical custody of Earen for the remainder of the month. The parties agreed to meet in Rockford, Illinois, to exchange Earen.

The trial court took judicial notice of the entire file, which included the hearings on temporary custody and the temporary order. During trial, the parties made multiple accusations against each other either to show unfitness as a parent or to demonstrate an intention not to cooperate about sharing custody of Earen. Two accusations are specifically mentioned in the appellate briefs. Ms. Simon-Harris testified during trial that when they traveled to Colorado together, Mr. Harris got very angry and after they stopped at a hotel she saw him smoking marijuana. Mr. Harris denied smoking marijuana at any time since he had been married to Ms. Simon-Harris, including during the trip to Colorado. Ms. Simon-Harris also discussed an e-mail she received from Mr. Harris that said, "I hate everyone, including you." She said that this e-mail made her very uncomfortable with allowing Mr. Harris to have overnight visits with Earen. Mr. Harris testified that he sent that e-mail to Ms. Simon-Harris in response to something she had said and because he was upset with her since she would not let him see Earen.²

In discussing custody and visitation during trial, Ms. Simon-Harris asked the trial court to grant them joint legal custody of Earen and to name her as the primary residential custodian or primary physical custodian. She also said that she would like to retain the current schedule with Mr. Harris having Earen for the first week of each month, only changing the trade-off day from Sunday to Saturday. As for Mr. Harris, he asked for primary custody. He stated that if he was not awarded primary custody then he wanted Earen for two weeks a month. Both parties also filed several different Form 14³ worksheets.

During trial, there was disagreement over who was entitled to claim Earen as a dependent in 2002. Both parties believed they were entitled to claim Earen based on the amount of time that they were responsible for him. Mr. Harris filed his tax return first using an online service and he claimed Earen for two months, based on the time that Ms. Simon-Harris was with him in Michigan and Colorado. The online form gave him credit for the full twelve months. Ms. Simon-Harris was not able to claim Earen at all. Mr. Harris testified that by claiming Earen he received an additional tax benefit of $1,200.⁴ When Ms. Simon-Harris informed Mr. Harris that she was not able to claim Earen, Mr. Harris sent her $1,000, which was five-sixths of the benefit he received by claiming Earen. Ms. Simon-Harris claims that because she was unable to claim Earen as a dependent on her taxes, she lost $2,914. She entered an exhibit listing what her federal and state refunds would be if she could claim Earen and what her state refund would be and what she would owe in federal taxes if she could not claim Earen. She also included a copy of her taxes with Earen claimed as a dependent. Mr. Harris objected to the exhibit's admission because it was speculative and based on hearsay as to what she would have received. The trial court admitted it "more as a demonstrative exhibit on what she's asking."

The trial court found both parents fit and proper custodians and granted the parties joint legal and physical custody of Earen until he enters school, subject to the parenting plan. Physical custody of Earen was ordered to alternate between the parties for two-week periods, with the transfer to be every two Saturdays in Rockford, Illinois, each party to pay their own travel costs. Both parties were ordered to maintain health insurance for Earen. Ms. Simon-Harris was ordered to pay $173 per month in child support to Mr. Harris. Ms. Simon-Harris was given head of household status and allowed to claim Earen as a dependent on her tax returns. The trial court ordered Mr. Harris to pay Ms. Simon-Harris $1,914 for tax relief from the 2002 dependency claim dispute. The trial court found that there were no marital debts to be divided and no maintenance to be paid.

The parenting plan listed "standard...