White v. White

• Court: Missouri Court of Appeals
• Writing for the Court: Philip M. Hess, Judge
• Citation: White v. White, 616 S.W.3d 373 (Mo. App. 2020)
• Decision Date: 03 November 2020
• Docket Number: No. ED 108036,ED 108036
• Parties: Sally A. WHITE, Respondent, v. Clayton H. WHITE, Appellant.

616 S.W.3d 373

Sally A. WHITE, Respondent,

v.Clayton H. WHITE, Appellant.

No. ED 108036

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: November 3, 2020

Application for Transfer Denied March 2, 2021

FOR APPELLANT: Lawrence G. Gillespie, Gillespie, Hetlage & Coughlin, L.L.C., 120 South Central Avenue, Suite 650, Clayton, Missouri 63105-1705.

FOR RESPONDENT: James D. Terrell, Wasinger Parham, L.C., PO Box 962, Hannibal, Missouri 63401.

GUARDIAN AD LITEM: Karla J. Roisum, PO Box 914, Hannibal, Missouri 63401.

Philip M. Hess, Judge

Introduction

Clayton White ("Father") appeals the trial court's judgment and decree of dissolution of marriage ("Judgment") awarding sole physical custody of S.W., G.W., and E.W. (the "Children") to Sally White ("Mother") and joint legal custody of the Children to both him and Mother. He raises four points on appeal.

In Point I, Father contests the trial court's decision to grant joint legal custody of the Children to Mother, arguing it was unsupported by substantial evidence and a misapplication of law. In Point II, Father argues the trial court erred by granting Mother sole and "primary" physical custody of the Children as against the weight of the evidence. In Point III, Father argues the trial court misapplied the law under section 452.400.1(1)¹ by failing to properly create a schedule for him to spend time with his oldest child, S.W. In Point IV, Father argues the trial court misapplied the law by designating Mother as having either "primary" or sole physical custody because primary physical custody is not statutorily permissible and because the Parenting Plan ("Plan") gives him significant physical custody of the Children.

The Judgment awarding joint legal custody to Father and Mother is supported by substantial evidence. However, the Judgment's classification of the physical custody arrangement as "primary" rather than "joint" or "sole" is erroneous. Therefore, under Rule 84.14,² we modify the Judgment so the physical custody arrangement is designated "sole" physical custody rather than "primary" physical custody. We change only the designation assigned to the physical custody arrangement and otherwise affirm the Judgment's award of sole physical custody to Mother. Because the Judgment failed to specifically detail Father's visitation rights regarding S.W. in the Plan and erroneously delegated the trial court's authority to determine visitation to a counselor, we reverse the Judgment ordering visitation between Father and S.W. and remand to allow the trial court to follow the requirements of section 452.400.1(1).

The Judgment is affirmed in part and reversed and remanded in part.

Factual and Procedural History

Father and Mother were married on January 19, 2007. Three children were born by the parties: S.W. age 15; G.W. age 13; and E.W. age 12. S.W. is diagnosed with autism, Tourette's Syndrome, Attention Deficit Hyperactivity Disorder ("ADHD") and anxiety. G.W. is diagnosed with ADHD and Oppositional Defiant Disorder. Father and Mother separated on June 1, 2017. Mother filed her petition for dissolution of marriage on June 13, 2017, requesting sole legal and physical custody of the Children. On June 27, 2017, Father filed his counter-petition for dissolution of marriage, requesting he and Mother be awarded joint legal and physical custody of the Children. On October 25, 2017, Father filed an amended parenting plan, requesting sole legal and physical custody of the Children.

A trial was held on May 24, May 25, July 10, July 11, July 19, and July 20, 2018. The trial court heard testimony from G.W., S.W., Mother, and Father. The evidence adduced at trial revealed that, during the marriage, Father worked long hours as a union pipefitter. Mother was a stay-at-home parent to the Children. Mother was responsible for much of the direct caregiving to the Children during the parties’ marriage. Mother was primarily responsible for handling the Children's medical needs, including attending doctor appointments. Father rarely – if ever – got involved or showed interest in learning about the Children's disabilities or treatment during the marriage.

The relationship between Father and S.W. is strained. Much of the conflict between Father and S.W. centers around S.W.’s belief Father is a liar and the fact Father physically punished S.W. as a child, sometimes injuring him. S.W.’s disorders cause him to react strongly to perceived lies. Testimony at trial established Father punished S.W. physically as early as two years old, including throwing S.W. across a room.

Father's treatment of the family's animals distresses S.W. Father killed the family's hunting dog and lied to S.W. about it. Father also sold or gave away two other family dogs. S.W. has pet chickens, which he named and cares for. Father kicked and killed S.W.’s favorite chicken. Father did not admit he killed the chicken to S.W., exacerbating S.W.’s belief Father is a liar.

S.W. has had difficulty adjusting to Father's relationship with Father's new girlfriend. S.W. associates girlfriend with the end of his parents’ marriage and testified he has considered trying to hurt girlfriend.³ Father denied his relationship with girlfriend to S.W., against the advice of S.W.’s doctors. S.W. testified he prefers living at Mother's house and does not like moving from house to house. Since his parents’ separation, S.W. has resisted staying in contact with Father. S.W. has threatened to shoot himself if he is forced to spend time with Father. While G.W. and E.W. usually talk to Father when he calls, S.W. often refuses to speak. In contrast, S.W. and his siblings have positive relationships with Mother's new boyfriend and boyfriend's children.

The parties’ middle child G.W. has ADHD and Oppositional Defiant Disorder. Like S.W., G.W. receives treatment. G.W. testified Father did not attend his medical appointments during the marriage. G.W. testified Father had a history of becoming angry and physically punishing him, including throwing him against a wall. G.W. testified he is bothered by Father's pattern of lying about his relationship with his girlfriend, but is more willing to have a relationship with Father than S.W. is. G.W. would prefer to live with Mother but wants to continue having visitation with Father.

The trial court entered its Judgment on December 31, 2018. The Judgment awarded joint legal custody of the Children to Father and Mother and "primary" physical custody to Mother. It also awarded Father visitation. The terms of Father's visitation were set forth in the Plan attached to and incorporated into the Judgment. The Plan provided:

Father shall be entitled to visitation with [G.W.] and [E.W.] on alternate weekends, from Friday at 6:00 p.m. until Monday morning at 8 a.m. if no school, or until the start of school if school is in session; and every Wednesday from 5 p.m. until 8 p.m. Father and [S.W.] shall jointly attend counseling at a counselor chosen by Father and shall have visits at the recommendation of the counsellor [sic], with the goal of working toward the weekly, summer, and holiday visitation schedule of [E.W.] and [G.W.].⁴

The Plan provided a detailed schedule for which holidays Father was entitled to visitation with "the Children" in odd or even years. The Plan also provided Father would "be entitled to three separate one week periods of visitation (to include, and not be in addition to Father's normal weekend visitation) to be exercised during each summer or during the Children's Christmas break."

We will include additional relevant facts and procedural posture as needed to address Appellant's claims.

Standard of Review

Appellate review of a judgment of dissolution is governed by Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). Schutter v. Seibold , 540 S.W.3d 494, 499 (Mo. App. W.D. 2018). The trial court's judgment will be affirmed "unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Id. "We view the evidence and permissible inferences drawn therefrom in the light most favorable to the judgment" and disregard contrary evidence. In re Marriage of Scrivens , 489 S.W.3d 361, 363 (Mo. App. S.D. 2016). The trial court is "free to believe or disbelieve all, part, or none of the testimony of any witness." Schutter , 540 S.W.3d at 499. "We do not reweigh the evidence, even if the evidence could have supported another conclusion." Cox v. Cox , 504 S.W.3d 212, 217 (Mo. App. W.D. 2016).

The trial court is in a superior position to judge the credibility of witnesses, as well as their character, sincerity, and other intangibles that might not be completely revealed by the record. Gismegian v. Gismegian , 849 S.W.2d 201, 202 (Mo. App. E.D. 1993). We presume the court's custody decree was in accordance with the best interest of the children. Id. Because the trial court has an affirmative duty to determine what is in the best interest of the children, we further presume the custody decision is motivated by what the court believes is best for the children. Keel v. Keel , 439 S.W.3d 866, 875 (Mo. App. E.D. 2001).

Discussion

Point I: The Trial Court did not Err by Granting the Parents Joint Legal Custody

Father argues the trial court's award of joint legal custody was not supported by substantial evidence and was based upon a misapplication of the law.⁵ He argues he should be awarded sole legal custody of the Children. Father claims Mother will not cooperate enough for joint legal custody to be in the best interest of the Children.

Section 452.375 governs the trial court's determination of child custody awards. Subsection 2 requires the trial court to make its custody decision "in accordance with the best interests of the child" after considering "all relevant factors." Subsection 5 requires:

5. Prior to awarding the appropriate custody arrangement in the best interest of the child, the court shall consider each of the following as follows:

(1)

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