Stangeland v. Stangeland

• Decision Date: 19 December 2000
• Citation: 33 S.W.3d 696
• Parties: (Mo.App. W.D. 2000) . Douglas Alan Stangeland, Respondent-Appellant v. Tammy Lynn Stangeland, Appellant-Respondent. WD57163 (Consolidated with WD 57195) Missouri Court of Appeals Western District Handdown Date:
• Court: Missouri Court of Appeals

33 S.W.3d 696 (Mo.App. W.D. 2000)

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

Douglas Alan Stangeland, Respondent-Appellant v. Tammy Lynn Stangeland, Appellant-Respondent.

WD57163 (Consolidated with WD 57195)

Missouri Court of Appeals Western District

Handdown Date: 12/19/2000

Appeal From: Circuit Court of Vernon County, Hon. Joseph B. Phillips

Counsel for Appellant: Christopher Hoberock

Counsel for Respondent: David V. Collignon

Opinion Summary: Tammy Lynn Stangeland appeals judgment dissolving her marriage to Douglas Alan Stangeland with respect to the court's awards of maintenance and child custody.

AFFIRMED.

Division Three holds:

In Point I, regarding the trial court's award of only $100 per month in maintenance, the testimony at trial indicated that she could earn a certain monthly income from a job, that her expenses were potentially overstated, and that she had additional income from payments to her by the husband, ordered to equalize the court's property division. As to the husband, the record indicated that he could reasonably anticipate a certain income but had expenses for himself and the child, and was ordered to pay the wife for property equalization and to pay the fees of the court-appointed trustee, the guardian ad litem, and the wife's attorneys. Thus, even if the trial court accepted the wife's figures as to her income and expenses, there was ample evidence from which the trial court could have found that he did not have the means to pay any more than $100 per month in maintenance.

As to Point II, the wife claims that the trial court erred in awarding sole legal and physical custody of the parties' minor child to the husband. Section 452.375.2 requires the trial court to "determine custody in accordance with the best interests of the child," and sets forth ten factors for the court to consider. The wife attacks the trial court's findings with respect to factors (1), (3), (4), (5), (6) and (8).

As to factors (1) and (4), the wife contends that the record does not support the court's finding that the husband's plan was in the best interests of the child and would provide more opportunity for meaningful contact with the child. His plan provided for 85 days of visitation per year; the wife's only 42 days of visitation per year. A comparison of the plans would support the court's finding. As to the trial court's finding on the wife's unwillingness to be flexible on matters of visitation to promote meaningful contact by the non-custodial parent with the minor child, the record reflects that the husband's parenting plan provided that both parents would share in making decisions concerning the minor child, while the wife's plan stated that she would have sole decision-making authority, without consulting the husband. She testified that no one except the husband would be allowed to pick up the child for visitation, except in cases of emergency. There was also evidence in the record regarding conflicts that had arisen between the parties concerning the terms of the temporary pre-trial physical custody ordered by the court and the wife's unwillingness to make any concessions with respect thereto.

As to factor (3), the court found she had allowed her child to ride in a vehicle while her paramour, Charlie Crocker, was driving, even though she knew he had lost his license due to recurring driving while intoxicated charges. She contends there was no evidence in the record to support this finding. While this Court agrees with her, even if this finding were ignored, the record otherwise supports the trial court's award of custody.

As to factor (5), the wife argues that the court's emphasis on the husband's remaining in the marital residence was not supported by the evidence because there was no testimony to show that her new residence was "inadequate or detrimental to the welfare of the child." However, the award of the family home can be a relevant factor in determining custody. Further, the wife argues that the trial court's attaching any significance to the child's sleeping with Crocker and her in awarding custody to the husband was not supported by the record because there was no evidence to show that this arrangement was detrimental to the child. However, morals are a relevant consideration in deciding the best interests of a child and consideration must be given to what conduct a parent may inspire by example or may foster by condonation. Thus, although there was no showing that the child was actually adversely affected, the trial court was free to attach some significance to these actions in determining custody.

As to one of the trial court's findings with respect to factor (6), namely the child's exposure to verbal arguments between the wife and her paramour, section 452.375.2(6) indicates that domestic violence, even though not directed at the child, is always a concern when considering the best interests of the child as to an award of custody. Further, a parent's comportment and behavior during a relationship is some indication of the stability of the home environment the parent will provide.

Finally, as to factor (8), the while the wishes of the child regarding his custody are taken into consideration, they are not controlling. The weight to be given such preferences varies with the age of the child and the basis for that preference. Because the child here was five years old at the time of the hearing, little weight should reasonably be given his preference in that it is doubtful that he had a rational basis for a preference.

The trial court's findings as to the factors of section 452.375.2 and custody award were supported by the record.

Opinion Author: Edwin H. Smith, Presiding Judge

Opinion Vote: AFFIRMED. Ulrich and Ellis, JJ., concur.

Opinion:

Tammy Lynn Stangeland appeals the judgment of the Circuit Court of Vernon County dissolving her marriage to the respondent, Douglas Alan Stangeland, with respect to the court's awards of maintenance and child custody.

The appellant raises two points on appeal. In Point I, she claims that the trial court erred in awarding her maintenance of only $100 per month because the amount of the award was not supported by substantial evidence, and in making such an award, the court misapplied the law. In Point II, she claims that the trial court erred in awarding sole legal and physical custody of the parties' minor child to the respondent because the findings on which the court based its award were not supported by substantial evidence and were against the weight of the evidence, and in making its award, the trial court erroneously applied the law.

We affirm.

Facts

The parties were married on July 26, 1986. Less than two years later, the parties started a business that eventually became known as Stangeland Vending and Discount Cigarette Company. The parties had one child during their marriage, Derek Alan Stangeland, born October 21, 1993.

On March 25, 1998, the respondent filed his petition for dissolution of marriage alleging that the marriage was irretrievably broken. In his petition, the respondent requested the court to, inter alia, dissolve the marriage; award him custody of the minor child and child support; and divide the parties' property. On April 3, 1998, the respondent filed and the court granted a motion for temporary custody of Derek and restrained the appellant from entering the parties' marital home or business. On that same day, the appellant filed a petition for an order of protection against the respondent. On April 9, 1998, the appellant filed her answer to the respondent's petition and her counter-petition for dissolution. The respondent filed his answer to the appellant's counter-petition on April 27, 1998. On April 16, 1998, the court entered an order granting temporary joint legal and physical custody of Derek to the parties and establishing a schedule of physical custody. On May 22, 1998, the court appointed Carol Spillars as trustee to oversee and manage the financial affairs of the parties' business. Thereafter, neither party was allowed access to the receipts, cash, or inventory of the business. On July 7, 1998, an application for appointment of a guardian ad litem for the minor child was filed. The court appointed a guardian ad litem on July 16, 1998.

The parties' case went to trial on January 25, 1999, and concluded on January 29, 1999. The trial court entered its judgment on February 10, 1999, inter alia, dissolving the marriage; dividing the property, including awarding to the respondent both the business and the marital home, and ordering him to pay the debts thereon; awarding sole legal and physical custody of the minor child to the respondent, with supervised visitation to the appellant; and ordering the respondent to pay non-modifiable maintenance of $1,000 per month for 60 months. In addition, the respondent was ordered to pay the trustee fees of $25,000 within two years, his own attorney's fees, $5,000 of the appellant's attorney's fees, and $2,500 of the guardian ad litem's fees. The judgment was amended nunc pro tunc on March 4, 1999, changing the appellant's visitation from supervised to unsupervised.

On March 11, 1999, the appellant filed her "Motion for New Trial, or, In the Alternative, to Vacate and Amend the Judgment and Decree of Dissolution." The court heard the motion on April 12, 1999. On April 20, 1999, the trial court sustained the motion and amended its judgment, awarding the appellant modifiable maintenance of $100 per month for 60 months and ordering the respondent to pay the appellant $1,000 per month for 60 months to equalize the court's property division.

On April 30, 1999, the appellant filed a premature notice of appeal. Likewise, on May 11, 1999, the respondent filed a premature notice of cross-appeal, which he later dismissed. After the trial court's judgment was further amended nunc pro tunc on May 4, 1999, to...