Tracy v. Tracy, 21531

• Citation: 961 S.W.2d 855
• Decision Date: 13 January 1998
• Docket Number: No. 21531,21531
• Parties: Mark Randall TRACY, Petitioner-Respondent, v. Carolyn Sue TRACY, Respondent-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 855

961 S.W.2d 855

Mark Randall TRACY, Petitioner-Respondent, v. Carolyn Sue TRACY, Respondent-Appellant.

No. 21531.

Missouri Court of Appeals,

Southern District,

Division Two.

Jan. 13, 1998.

Kay S. Graff, Springfield, for Appellant.

Richard L. Schnake, Neale & Newman, L.L.P., Springfield, for Respondent.

BARNEY, Judge.

Carolyn Sue Tracy (Wife) appeals from a decree dissolving her marriage to Mark Randall Tracy (Husband). The parties were married on September 4, 1985. Their union produced two children: Joshua Aaron Tracy, born July 15, 1992, and Jarrod Adam Tracy, born April 6, 1994.

Husband filed a petition for dissolution of marriage on June 24, 1994, in which he sought primary physical custody of both children and an equitable distribution of marital property and allocation of debts. A temporary custody order was entered on July 15, 1994, splitting custody of the two children between each parent. ¹

The first trial of this matter occurred before Commissioner Scott B. Tinsley of the Greene County Family Court. Commissioner Tinsley entered a "judgment and decree of dissolution of marriage." With regard to child custody, it provided:

That the parties are each fit and proper persons to have the custody, care and control of the minor children of the marriage and that the parties shall have joint legal custody of the children. The Court further finds that the primary physical custody of JOSHUA AARON TRACY shall be placed with [Husband] and the primary physical custody of JARROD ADAM TRACY shall be placed with [Wife]....

On September 22, 1995, Husband filed a motion for reconsideration, which was denied by the family court commissioner. Husband then filed a motion for hearing before the judge of the family court in which he alleged that splitting custody of the children was contrary to their best interests. ² Husband's motion was sustained.

A second trial of this matter then commenced before Associate Circuit Judge J Dan Conklin. On January 24, 1997, the trial court entered its judgment and decree of dissolution of marriage wherein it divided the marital and non-marital assets between the parties and awarded primary physical custody of both children to Husband. ³ The trial court ordered Wife to pay child support to Husband in the sum of $100.00 per month for each child. No maintenance was awarded.

On appeal of the judgment and decree of dissolution of marriage, Wife assigns four points of trial court error. First, she avers that the trial court abused its discretion in awarding primary physical custody of the two children to Husband because its decision was against the manifest weight of the evidence and was contrary to the law in that the children's best interests "would be better served by an award of joint legal and physical custody with approximately equal time with each parent." Second, Wife avers that the trial court's award of child support was not supported by substantial evidence because it exceeded the amount of the Form 14s presented to the court without a statement as to how it was calculated. Third, she avers that the trial court erred in its division of the marital assets in that its decision was against the manifest weight of the evidence because the "valuations adopted by the court were supplied by a non-owner, non-expert witness, the debts were not supported by evidence and the decree is not complete." Fourth, Wife asserts that it was trial court error to not order Husband to pay her attorney's fees.

The trial court's decree must be affirmed if it is supported by substantial evidence, it is not against the manifest weight of the evidence, and it neither erroneously declares nor applies the law. J.L.S. v. D.K.S., 943 S.W.2d 766, 769 (Mo.App.1997). We must accept as true the evidence and permissible inferences therefrom in the light most favorable to the decree and disregard all contrary evidence and inferences. Id. Where there is a conflict in testimony, we defer to the trial court's determination of the credibility of the witnesses. Id.

I.

In Wife's first assignment of error, she avers that the trial court erred in awarding primary physical custody of both children to Husband.

The Missouri legislature has established eight factors which must be considered by the trial court in determining custody in accordance with the best interests of the child:

(1) The wishes of the child's parents as to his custody;

(2) The wishes of a child as to his custodian;

(3) The interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child's best interests;

(4) The child's adjustment to his home, school, and community;

(5) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and the parent or other family or household member who is the victim of domestic violence from any further harm;

(6) The needs of the child for a continuing relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;

(7) The intention of either parent to relocate his residence outside the state; and

(8) Which parent is more likely to allow the child frequent and meaningful contact with the other parent.

§ 452.375.2, RSMo Cum.Supp.1996.

The trial court is vested with broad discretion in determining child custody and our principal concern, as is the trial court's in awarding custody, is the best interests of the children. J.L.S., 943 S.W.2d at 775. In determining the best interests of the children, the court may consider the conduct of the parents. Id.; In re Marriage of Campbell, 868 S.W.2d 148, 153 (Mo.App.1993). There must be consideration of what conduct a parent may inspire by example, or what conduct of a child a parent may foster by condonation. J.L.S., 943 S.W.2d at 775. Past and present activities may be a reliable guide to the priorities of the parent. Id.; M. v. M., 688 S.W.2d 384, 386 (Mo.App.1985). Consideration of conduct is not limited to that which has in fact detrimentally affected the children. J.L.S., 943 S.W.2d at 775. We presume the trial court awarded custody in accordance with the children's best interests. In re Marriage of Bennett, 938 S.W.2d 952, 954 (Mo.App.1997). Appellate courts afford greater deference to a trial court's decision in child custody determinations than in other cases. Id.

The trial court's judgment and dissolution decree delineated a "Joint Custody Plan," which awarded Husband "primary physical custody" of both minor children. The trial court awarded Wife reasonable, frequent and meaningful visitation, specifically outlined in the trial court's decree. It generally provides, inter alia, that Wife will have alternating weekend visitation with the children, one weekday of visitation per week (see note 4, infra ), an extended period of temporary custody during the first half of the summer "school vacation period," and during each holiday or vacation she shall have visitation on alternating odd-numbered and even-numbered years, depending on the particular occasion. ⁴ Wife was also awarded a similar visitation schedule with regard to the children's respective birthdays. Husband was awarded custody during times not otherwise specified in the dissolution decree.

Husband and Wife were awarded identical rights with regard to decision-making relating to the children's health, medical treatment, education, religious training, and welfare. Husband, as the primary custodian, was awarded primary decision-making authority in the event of a conflict.

Considering the foregoing, we conclude that the trial court's decree with regard to child custody would more accurately be interpreted as having awarded Husband and Wife "joint physical custody," as opposed to having awarded Wife merely a right of "visitation." ⁵ Thus, Wife's point one will be considered as contending that the joint custody order's allocation of time when the child resides with each parent or under each parent's care and supervision was contrary to the children's best interests. See Francka v. Francka, 951 S.W.2d 685, 689 (Mo.App.1997); Rinehart v. Rinehart, 877 S.W.2d 205, 207 (Mo.App.1994). The custody plan in the trial court's dissolution decree satisfies the definition of "joint physical custody" as provided in section 452.375.1(2). ⁶ See id.; note 5, supra.

There was detailed testimony adduced at trial regarding the interrelationships between the children and Husband and between the children and Wife. There was also detailed testimony regarding the conduct of Wife as it related to the breakdown of the marriage.

As to the deterioration of the marriage, we need not recount all the details leading to its demise. Suffice to say that during the course of the marriage Wife began an adulterous affair with Mr. Steve Dukes and that such affair led to her voluntarily moving from the parties' home so that she could begin residing with her paramour.

Several witnesses testified during the trial regarding the relationships between the children and the respective parties.

Husband presented expert testimony from Dr. Roy Grando, who holds a Ph.D. in Human Development and Family Studies. Dr. Grando testified that he administered certain tests to Husband, including the Multi-Minnesota Multiphasic Personality Inventory II, the MMPI II, and the Millon Clinical Multiaxial Inventory. He stated that those are personality tests designed to reveal things about a person's emotions and personality, whether the person is in acute distress, has anxiety, depression, and...