Winslow v. Winslow

• Decision Date: 28 March 2000
• Citation: 14 S.W.3d 690
• Parties: (Mo.App. E.D. 2000) . William C. Winslow, Respondent, v. Dawn M. Winslow, Appellant. Case Number: ED75753 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

14 S.W.3d 690 (Mo.App. E.D. 2000)

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

William C. Winslow, Respondent, v. Dawn M. Winslow, Appellant.

Case Number: ED75753

Missouri Court of Appeals Eastern District

Handdown Date: 03/28/2000

Appeal From: Circuit Court of Jefferson County, Hon. Timothy J. Patterson

Counsel for Appellant: Bruce F. Hilton and Lawrence G. Gillespie

Counsel for Respondent: Patricia Riehl

Opinion Summary: Mother Dawn Winslow appeals from the trial court's judgment and decree of dissolution of her marriage to father William Winslow.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

Division Five holds: (1) The trial court did not err in failing to make findings of fact regarding domestic violence pursuant to sections 452.357.13 and 452.400.1, RSMo Cum. Supp. 1999, where the court could have implicitly concluded there was no domestic violence because such a conclusion would not have been against the weight of the evidence. (2) The trial court erred in failing to act on the mother's motion for new trial within 90 days to determine what portion of the father's workers' compensation settlement is marital or separate. (3) The parties agree the trial court erred in ordering the mother to pay $409 in child support. The case is remanded for the trial court for determination of child support in accordance with the parties' agreement.

Opinion Author: Robert E. Crist, Senior Judge

Opinion Vote: AFFIRMED IN PART; REVERSED AND REMANDED IN PART. Rhodes Russell, C.J., concurs. Crahan, J., concurs in part and dissents in part.

Opinion:

Dawn Winslow (Mother) appeals from the trial court's judgment and decree of dissolution of her marriage to William Winslow (Father). On appeal, she challenges the child custody and child support provisions of the decree, as well as the disposition of a workers' compensation settlement to Father. We affirm in part and reverse and remand in part.

Mother and Father were married in 1992. A child, Z.W., was born of the marriage in 1993. Mother and Father separated in June of 1996 when Father left Mother and took Z.W. with him. Shortly after Father left, Mother was shooting heroin and threatening to kill herself. Father helped her get into a drug treatment program at Queen of Peace. Mother also spent some time in July of 1996 in the psychiatric ward at Deaconess Hospital. Also in July of 1996, Father filed a petition for a protective order against Mother, "because she tried to run over me with a car with my baby in my arms and her two daughters at my side." Father requested custody of Z.W. in the petition. An order of protection was entered and the court awarded Father custody for six months. In July 1996, Father received a DWI while Z.W. was in the car with him.

In October 1996, Mother obtained an order of protection against Father in St. Louis City. He denied the allegations contained in it and claimed Mother had only obtained that order in an attempt to get custody of Z.W. while Father was serving 10 days in jail for his DWI.

From July to December 1996, Mother did not see Z.W. at all. In December of 1996, Father filed a petition for dissolution of the marriage. Around that same time, a hotline call was made against Father, alleging abuse at Father's father's house, where Father and Z.W. were living. The Division of Family Services (DFS) investigated the incident and concluded it was unsubstantiated. However, at this time, Father consented to give legal custody to DFS, but retained joint physical custody of Z.W. with Mother. This arrangement lasted until the middle of January 1997 when Father's order of protection expired. From January until March or April 1997, Mother saw Z.W. every weekend.

In March or April 1997, an allegation of sexual abuse of Z.W. was filed against Mother's boyfriend, with whom she was living at the time. DFS determined there was probable cause to believe Mother's boyfriend had abused Z.W. Mother denied any sexual abuse had occurred. She continued to live with her boyfriend until about November of 1997. After the allegations of abuse, Father retained physical custody of Z.W., but DFS allowed Mother only supervised visitation one hour per week.

At the time of trial, Father was working with a counselor through DFS to improve his parenting skills. He saw the counselor once every two weeks and the counselor also saw Z.W. every week. Father admitted to a drug and alcohol problem. At the time of the first day of trial, Father had been sober for 18 months and went regularly to Alcoholics Anonymous and Narcotics Anonymous meetings.

Mother testified about numerous occasions of abuse by Father during the course of their marriage, claiming Father had abused her and Z.W throughout the marriage. Father testified there was physical abuse in the marriage, but denied that he had ever physically abused Mother or Z.W. He also denied ever physically assaulting her or threatening her in any way. The guardian ad litem appointed by the court recommended that Father receive custody of Z.W.

The petition for dissolution was tried on two days, May 13, 1998 and September 1, 1998. On September 10, 1998, the trial court entered its judgment and decree of dissolution. The court awarded custody of Z.W. to Father and provided Mother with reasonable rights of visitation according to the "Siegenthaler Schedule," a standard schedule of custody often used in decrees and derived from Siegenthaler v. Siegenthaler, 761 S.W.2d 262, 266 (Mo. App. E.D. 1988). The court ordered Mother to pay Father child support in the amount of $409 in accordance with the Form 14 submitted by Father. The court also awarded each party the personal property in their possession.

On September 30, 1998, Mother filed a motion to set aside the judgment and motion for new trial. In that motion, Mother sought to set aside the judgment because the award of custody of Z.W. to Father was not in the best interest of Z.W. She also objected to the amount of child support, contending there was a dispute of payments received by Father for day care. Finally, Mother contended that Father had failed to disclose to the court that he had received proceeds from his workers' compensation settlement and that she was entitled to one-half of those proceeds. Between the two days of trial, Father settled a prior workers' compensation claim for 32 percent of the body as a whole, low back, for $32,000.

On December 11, 1998, the trial court entered an order sustaining Mother's request to consider the workers' compensation settlement in the division of assets. The court set this matter and Mother's motion to set aside for a hearing on January 11, 1999. The matter was continued until February 2, 1999. At that time, the trial court entered an order purporting to deny the motion to set aside as to child custody. The court also found the workers' compensation settlement was entirely for lost future wages and thus, not marital property to be divided. Finally, the court amended the child support amount to $276.00 per month in accordance with the joint Form 14 filed by both parties. This court granted Mother leave to file a late notice of appeal and she appealed from the trial court's judgment and decree of dissolution.

At the outset, we note the trial court did not have jurisdiction to enter its order and judgment of February 2, 1999. Mother had filed a timely motion for new trial, which extended the time before the judgment and decree of dissolution became final. However, pursuant to Rule 81.05(a) (1999), this extension is only at most for 90 days, because "the judgment becomes final at the expiration of ninety days after the filing of such motion or, if such motion is ruled on at an earlier date, then at the later of the date of disposition of said motion or thirty days after entry of judgment." Here, the trial court only had 90 days in which to act and its judgment and decree became final on December 28, 1999. Its failure to act before that time meant the motion was deemed overruled as of that date. Rule 78.06 (1999); Rule 81.05(a) (1999); Scott v. Flynn, 936 S.W.2d 173, 174 (Mo. App. E.D. 1996). Although the court appeared to sustain the motion as to the workers' compensation settlement, the court failed to enter any orders apportioning the settlement in a timely fashion. Therefore, the court exceeded its jurisdiction when it entered the "judgment" of February 2, 1999, and the ruling was without force or effect. Heinen v. Healthline Management, Inc., 982 S.W.2d 244, 246 (Mo. banc 1998).

In Point I, Mother contends the trial court erred in awarding custody of Z.W. to Father because in doing so, the trial court failed to make any findings of fact regarding domestic violence. Mother argues the statutes mandate that the court determine if domestic violence occurred and if so, whether its award of custody to an abusive parent was in the best interests of the child.

Mother relies upon sections 452.375.13 and 452.400.1. Section 452.375.13, RSMo Cum. Supp. 1999, governing child custody, provides:

13. If the court finds that domestic violence or abuse, as defined in sections 455.010 and 455.501, RSMo, has occurred, the court shall make specific findings of fact to show that the custody or visitation arrangement ordered by the court best protects the child and the parent or other family or household member who is the victim of domestic violence or abuse, as defined in sections 455.010 and 455.501, RSMo, from any further harm.

Section 452.400.1, RSMo Cum. Supp. 1999, provides, in pertinent part:

1. . . . In determining the granting of visitation rights, the court shall consider evidence of domestic violence. If the court finds that domestic violence has occurred, the court may find that granting visitation to the abusive party is in the best interests of the child . . . . The court shall consider the parent's history of inflicting, or tendency to inflict, physical harm,...