Stewart v. Stewart

• Decision Date: 06 April 1999
• Docket Number: No. WD,WD
• Citation: 988 S.W.2d 622
• Parties: Glenda STEWART, Respondent, v. Thomas STEWART, Appellant. 55362.
• Court: Missouri Court of Appeals

Page 622

988 S.W.2d 622

Glenda STEWART, Respondent, v. Thomas STEWART, Appellant.

No. WD 55362.

Missouri Court of Appeals,

Western District.

Submitted Dec. 10, 1998.

Decided April 6, 1999.

Timothy C. Brady, Fulton, for Appellant.

Paul Stingley, Fulton, for Respondent.

Before ULRICH, P.J.; SMART and EDWIN H. SMITH, JJ.

SMART, Judge.

In this dissolution action, Thomas Stewart challenges the trial court's characterization of the physical custody award to Glenda Stewart, and the propriety of the trial court's child support award. Mr. Stewart claims that the trial court erred in its application of § 452.375, RSMo Supp.1997, ¹ and abused its discretion in designating Mrs. Stewart the primary physical custodian when, in fact, the custody award amounted to joint physical custody. Mr. Stewart also argues that because both parties were awarded significant periods of time during which the children were under the care and supervision of each of them, the trial court erred in ordering Mr. Stewart to pay child support to Mrs. Stewart.

Factual Background

Glenda and Thomas Stewart were married on November 3, 1978. Two children were born of their marriage. The Stewarts' dissolution was heard on November 20, 1997. The primary issues at the hearing were child custody and child support.

During the pendency of the dissolution, Mr. and Mrs. Stewart continued to reside together because they believed that the children needed to be with both of them as much as possible. Both Mr. and Mrs. Stewart actively participate in the children's extracurricular activities. Moreover, Mr. and Mrs. Stewart have similar views regarding religion, the discipline and education of the children, and extracurricular activities.

Mr. Stewart sought joint legal and physical custody of his children and asked the court to award physical custody to both parents, alternating weekly. Neither Mr. nor Mrs. Stewart wanted to keep the other from spending considerable time with the children. Mrs. Stewart agreed at the hearing that it was in the best interest of the children to have regular and frequent contact with both her and Mr. Stewart. At the hearing, Mrs. Stewart asked the court to award her primary physical custody of the children. Mrs. Stewart's recommendation as to visitation was that Mr. Stewart have visitation every other weekend and, on the off weeks, Monday, Tuesday and Wednesday. She also asked the court to award her child support in the amount calculated on her Form 14.

Mrs. Stewart agreed that she and Mr. Stewart should share in the costs of raising the children and "providing the shelter and housing for them" and stated that she was "willing to pay half of all costs of medical care that may be uninsured, not covered by insurance." Mrs. Stewart stated that the obligation of raising the children in a proper manner belonged to both parents.

On December 5, 1997, the trial court awarded Mr. and Mrs. Stewart joint legal custody of the children. The trial court awarded Mrs. Stewart primary physical custody of the children and allowed Mr. Stewart reasonable visitation, which "shall include" visitation from Friday through Sunday on alternate weekends and from Monday evening to Thursday morning on the other weeks. For purposes of establishing the parties' income, the court adopted Mr. Stewart's amended Form 14 and attributed monthly incomes of $1,345.00 to Mrs. Stewart and $1,386.67 to Mr. Stewart. ² The trial court ordered Mr. Stewart to pay child support in the amount of $356.70 per month to Mrs. Stewart. Mr. Stewart appeals. ³

Custody Classification

Mr. Stewart first claims that the trial court abused its discretion by designating Mrs. Stewart as primary physical custodian of the children. Mr. Stewart also claims that there was no substantial evidence to support such an award of custody because the substance of the award grants each parent significant periods of time during which the children are under the care and supervision of each of them. Mr. Stewart claims that despite the trial court's description of the custody award, the award amounts to joint physical custody.

Our standard of reviewing a custody determination is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Gulley v. Gulley, 852 S.W.2d 874, 876 (Mo.App.1993) . We must uphold the decision of the trial court unless it is against the weight of the evidence, there is no substantial evidence to support it, or it erroneously declares or applies the law. Id.

The dissolution decree ordered:

Custody of minor children awarded jointly with primary physical custody to [Mrs. Stewart] subj[ect] to [Mr. Stewart's] right of reasonable visitation which shall include visitation commencing at 4 p.m. Friday and ending at 8 p.m. Sunday on alternate weekends with custody from 4 p.m. Monday to 8 a.m. Thursdays of alternate weeks.

(Emphasis added).

The court thus allowed Mr. Stewart specific time with the children of approximately three days during the week one week, and three days on weekends on the alternate weeks. This gives Mr. Stewart approximately six ⁴ days with the children each two week period.

Since the time of the adoption of the joint custody statute, the appellate courts have attempted to deal with the issue of how to label physical custody awards in those cases in which the trial court has considered the award to be one of sole physical custody, but has also awarded more visitation than the traditional "every other weekend and two weeks in the summer." It is not always clear in such cases whether the award is one of sole physical custody, as the trial court designated it, or one of joint physical custody. See, e.g., Ibrahim v. Ibrahim, 825 S.W.2d 391, 396 (Mo.App.1992) (stating that the adoption of a specific visitation schedule would amount to an award of joint physical custody). Also not clear is the extent to which the specific designation of physical custody really matters. Many times, when the decree specifically awards significant times with each parent, the matter, in practical terms, appears to be one of labeling.

For instance, there is often little or no practical distinction between an award characterized as joint physical custody, as in Morton v. Stockdale, 888 S.W.2d 362, 363 n. 1 (Mo.App.1994), and one characterized as primary physical custody to mother and "liberal visitation" to Father, as in Patton v. Patton, 973 S.W.2d 139 142 (Mo.App.1998). Joint physical custody does not require an equal amount of time with each parent. Tilley v. Tilley, 968 S.W.2d 208, 213 (Mo.App.1998). Child support may be awarded, as appropriate, in cases of joint physical custody just as in cases of sole physical custody. § 452.375.11, RSMo Supp.1997.

The Southern District has generally chosen to consider a declaration of sole physical custody as one of joint physical custody when the trial court has awarded substantial specific time with each parent. See, e.g., In re Marriage of Johnson, 865 S.W.2d 412, 415 (Mo.App.1993); Nix v. Nix, 862 S.W.2d 948, 951 (Mo.App.1993). ⁵ In accordance with § 452.375.8, a reclassification of a sole physical custody award to joint physical custody requires the adoption of a written plan of joint physical custody, unless the decree already contains provisions which are sufficient to constitute a written plan. There were at that time no specific guidelines as to what is to be included in a written plan of joint custody, Gulley v. Gulley, 852 S.W.2d at 877, n. 1, ⁶ and, the type of items covered in a plan of joint legal custody (such as a method for resolving disputes as to issues such as schooling) would differ from those included in a plan of joint physical custody. Id. See Al-Yusuf v. Al-Yusuf, 969 S.W.2d 778, 784 (Mo.App.1998).

Mr. and Mrs. Stewart were clearly candidates for both joint legal and joint physical custody. During the pendency of the dissolution proceedings, Mr. and Mrs. Stewart continued to reside together because they believed their children needed to be with both of them as much as possible. There is no evidence that Mr. and Mrs. Stewart cannot communicate reasonably. Further, Mr. and Mrs. Stewart have similar views regarding religion, the discipline and education of the children, and their extracurricular activities.

Although the trial court order named Mrs. Stewart primary physical custodian, we believe Mr. Stewart is correct that, based on the authorities we have reviewed, the award should be considered an award of joint physical custody. Johnson, 865 S.W.2d at 415; Nix, 862 S.W.2d at 951. Section 452.375.8 requires that, in cases of an award of joint physical custody, the court must, sua sponte, if necessary, adopt a written plan of joint physical custody. Al Yusuf, 969 S.W.2d at 784. The court here did provide for specific times with the children. It is not clear that anything else might need to be included in such plan and neither party offers any suggestions about what else might need to be included. Thus, it is not clear that Mr. Stewart is actually aggrieved by the trial court's designation of physical custody. We fail to see that we need to take any formal action as to the physical custody award. ⁷ Nevertheless, because there is no written plan of joint legal custody in the decree, and the court did expressly award joint legal custody, the case will be remanded for the adoption of a plan related to joint legal custody as a matter of plain error. Gulley, 852 S.W.2d at 877.

Award of Child Support

Mr. Stewart next argues that the trial court abused its discretion in awarding child support to Mrs. Stewart, or, in the alternative, awarding child support only to Mrs. Stewart without a reciprocal award to Mr. Stewart because the children are in the custody of each parent for significant periods of time. Moreover, Mr. Stewart argues that his income is nearly identical to Mrs. Stewart's, Mrs. Stewart's financial resources far outweigh his, and there was no showing that Mrs. Stewart's financial needs when she had custody...