Wennihan v. Wennihan

• Decision Date: 13 January 2015
• Docket Number: WD 77280
• Parties: John Dean Wennihan, Respondent, v. Beth Ann Wennihan, Appellant.
• Court: Missouri Court of Appeals

452 S.W.3d 723

John Dean Wennihan, Respondent
v.
Beth Ann Wennihan, Appellant.

WD 77280

Missouri Court of Appeals, Western District.

OPINION FILED: January 13, 2015

Dan Smith, Rock Port, MO, for respondent.

Sandra Grant Hessenflow, Kansas City, MO, for appellant.

Before Division Two: Cynthia L. Martin, Presiding Judge, Victor C. Howard, Judge and Mark D. Pfeiffer, Judge

Opinion

Cynthia L. Martin, Judge

Beth Wennihan (“Mother”) appeals from a judgment entered in the Circuit Court of Atchison County dissolving her marriage to John Wennihan (“Father”). Mother challenges the trial court's designation of Father's home as the child's residence for school and mailing purposes and its division of parenting time in its parenting plan. For the following reasons, the trial court's judgment is reversed in part, and the cause is remanded to the trial court with instructions to amend its parenting plan to address various school holidays that were overlooked therein. In all other respects, the judgment is affirmed.

Factual and Procedural History

Father and Mother were married on November 20, 2002. One child, Carter, was born of the marriage on June 3, 2008.

On October 22, 2012, the couple separated, and Father filed his petition for dissolution of the marriage the following day. At the time of separation, the family had been living in a home that Father had inherited from his grandfather. Mother went to stay with relatives.

On November 2, 2012, the trial court entered its Pendente Lite Order, generally providing that the child would continue to reside with Father in the family home and that Mother would have parenting time on Tuesday and Thursday evenings and overnight on alternating weekends. Provisions were also included for summer and holidays.

The case was tried on April 1 and 2, 2013. Both parties requested that the trial court enter an award of joint legal and physical custody. The parties submitted competing parenting plans with each party seeking to have their home designated as the child's address for school and mailing purposes and to have the larger portion of the parenting time. On April 11, 2013, the trial court entered its Judgment of Dissolution dividing the couple's personal and marital property, designating Father's home as the child's address for purposes of school and mailing, and adopting its own parenting plan.

Mother filed a post-trial Motion to Amend and/or Correct the Findings and Judgment of the trial court. In response, the trial court entered an Amended Judgment of Dissolution on May 24, 2013, making findings as to acts of domestic violence as required by section 452.375.13 but in all other respects leaving the judgment unchanged.

On June 24, 2013, Mother, by and through newly retained counsel, filed a Motion for New Trial, largely attempting to reargue the evidence and seeking an opportunity to present additional evidence related to child custody that had not been presented at trial or had arisen since trial.

452 S.W.3d 727

Mother also claimed that there was marital and non-marital property that had not been divided by the trial court. Following a case management conference, on June 28, 2013, the trial court set aside its Amended Judgment to allow the parties an opportunity to resolve whether there were marital and/or non-marital assets and debts that had not been addressed in the judgment.

On December 9, 2013, the trial court entered its Second Amended Judgment of Dissolution. The provisions related to the child's designated address, custody, and parenting time remained the same as in the first two judgments. Mother was given parenting time on alternating weekends from 4 p.m. Friday until 7 p.m. Sunday. On those weekends where she was not granted the full weekend, Mother was to have the child from 4 p.m. Friday until 10 a.m. Saturday. In addition, Mother was to have the child Wednesday evenings from 4 p.m. until 7 p.m.¹ The trial court expressly found that it was in the child's best interest not to have midweek overnight stays with Mother during the school year because Mother's work schedule and the location of the child's school in relation to Mother's home and workplace would require the child to wake very early in the morning. Over the summer, Mother was to have the child for eight weeks with Father having parenting time on alternating weekends and from 4 p.m. Wednesdays until 10 a.m. on Thursdays. The trial court also set forth an alternating schedule evenly dividing certain holidays, Spring break, and Christmas break.² Mother brings three points on appeal.³

Standard of Review

“Our standard of review in a dissolution action is governed, as in any court-tried case, by the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).” Schollmeyer v. Schollmeyer, 393 S.W.3d 120, 122 (Mo.App.W.D.2013). “We will affirm the decree of dissolution unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law.” Pollard v. Pollard, 401 S.W.3d 506, 510 (Mo.App.W.D.2013) (internal quotation omitted).

“Judging credibility and assigning weight to evidence and testimony are matters for the trial court, which is free to believe none, part, or all of the testimony of any witness.”

452 S.W.3d 728

Sharrai v. Sharrai, 322 S.W.3d 641, 643 (Mo.App.W.D.2010) (internal quotation omitted). “We presume that the trial court took into account all evidence and believed such testimony and evidence that is consistent with its judgment.” Id. (internal quotation omitted). “We do not reevaluate the testimony; instead, we are confined to determining whether substantial evidence exists to support the trial court's judgment.” Sparks v. Sparks, 417 S.W.3d 269, 280 (Mo.App. W.D. 2013) (internal quotation omitted). “We will set aside a judgment as against the weight of the evidence only if we have a firm belief that it is wrong.” Id. In conducting our review, “[w]e view the evidence and all permissible inferences in the light most favorable to the judgment and disregard all contrary evidence and inferences,” id. (internal quotation omitted), and we “defer to the trial court even if the evidence could support a different conclusion.” Pollard, 401 S.W.3d at 510 (internal quotation omitted).

Multifarious Points Relied On

Before addressing Mother's claims on appeal, we are compelled to note that Mother's points relied on contain multifarious claims of error and, accordingly, violate Rule 84.04.⁴ Wiley v. Homfeld, 307 S.W.3d 145, 152 (Mo.App.W.D.2009) (overruled in part on unrelated grounds in Badahman v. Catering St. Louis, 395 S.W.3d 29, 36–37 (Mo. banc 2013) ). “A point relied on should contain only one issue, and parties should not group multiple contentions about different issues together into one point relied on.” Rouse v. Cuvelier, 363 S.W.3d 406, 419 (Mo.App.W.D.2012) (internal quotation omitted). “Despite this flagrant disregard of the rules, the policy of the appellate courts in this State is to decide a case on the merits rather than technical deficiencies in the brief.” Wiley, 307 S.W.3d at 152. “Because we are able to discern the claims being made and the defective nature of the point[s] relied on does not impede our disposition of the case on the merits, we will exercise our discretion to attempt to resolve the issues on the merits.”Id. “We will separate [Appellant]'s contentions, as best we can discern them, and respond to each one individually.” Id.

We further note that in the points relied on in her initial brief, Mother generally claims that the trial court's judgment is not supported by the evidence, is against the weight of the evidence, is against the child's best interests, and erroneously applies the law with regard to each of her assorted claims of error. However, in response to Father's challenge to the multifarious nature of Mother's points on appeal, in her reply brief, Mother specifies that the third and fourth sub-points to her third point on appeal, related to whether the trial court made sufficient findings regarding its rejection of the parties' proposed parenting plans and to whether the parenting plan complies with the statutory requirements of section 452.310(8), should be regarded as claims that the trial court misapplied the law. With regard to all of her other claims on appeal, Mother asks this Court to simply review whether the challenged determinations by the trial court are against the weight of the evidence. We address Mother's claims of error as so modified.

Analysis

Point I

As modified by her reply brief, Mother's first point asserts that the trial

452 S.W.3d 729

court's findings under section 452.375.2(3)⁵ (“[t]he interaction and interrelationship of the child with parents, siblings and any other person who may significantly affect the child's best interests”), section 452.375.2(5) (“[t]he child's adjustment to the child's home, school, and community”), and section 452.375.2(7) (“[t]he intention of either parent to...