Wood v. Wood

Decision Date21 January 2003
Docket NumberNo. WD 60337.,WD 60337.
Citation94 S.W.3d 397
PartiesJudy L. WOOD, now Fletcher, Appellant, v. Robert L. WOOD, Respondent.
CourtMissouri Court of Appeals

Mitzi J. Alspaugh, Kansas City, MO, for Appellant.

Jane C. Sachs, Savannah, MO, for Respondent.

Barbara A. Braznell, St. Joseph, MO, Guardian ad litem.

Before ULRICH, P.J., and SMITH and HARDWICK, JJ.

EDWIN H. SMITH, Judge.

Judy L. Wood (mother) appeals from the judgment of the Circuit Court of Buchanan County modifying its previously modified decree dissolving her marriage to the respondent, Robert L. Wood (father), with respect to its awards of custody and child support. In the dissolution proceeding, the parties were awarded joint legal and physical custody of their three minor children, Sherri, Robert II, and Spencer, with their primary residence to be with the mother, who was awarded $475 per month in child support. Thereafter, the trial court modified its decree by awarding sole legal and physical custody of Sherri to the mother, and sole legal and physical custody of Robert II and Spencer to the father, with the father awarded child support of $56 per month. In the modification proceeding from which this appeal arises, the trial court changed the sole legal and physical custody of Robert II from the father to the mother, as she requested in her cross-motion to modify custody, but denied her request for sole legal and physical custody of Spencer.

The mother raises six points on appeal. In Point I, she claims that "the trial court abused its discretion in limiting [her] time to present her case by failing to prepare [a] pre-trial order." In Point II, she claims that the trial court erred in overruling her cross-motion to modify its prior custody decree, seeking sole legal and physical custody of Spencer, because in doing so it failed to comply with § 452.375.61 in that it failed to make "specific written findings" in its judgment with respect to the public policy custody considerations found in § 452.375.4 and the best interest factors found in § 452.375.2. In Point III, she claims that the trial court erred in denying her cross-motion to modify the custody of Spencer because it was against the weight of the evidence in that the court's findings made in support of its judgment denying the mother's cross-motion were not supported by any evidence in the record. In Point IV, she claims that the trial court erred in awarding guardian ad litem (GAL) fees of $5,081.20 because the award was not supported by substantial evidence in that the GAL's fee statement, on which the trial court's award was based, was not admitted in evidence. In Point V, the mother claims that the trial court erred in its "deviation from the statutory child support guidelines" because the court "failed to make specific relevant findings for deviation from the statutory child support guidelines." In Point VI, she claims that "the trial court erred in determining whether the relationship between the child, Spencer, and his stepmother is superior to the relationship with Spencer and his Mother."

Affirmed.

Facts

The parties were married on December 18, 1982. Three children were born of the marriage: Sherri, born June 6, 1983; Robert II, born July 12, 1985; and Spencer, born September 6, 1991. The parties' marriage was dissolved by the Circuit Court of Buchanan County on December 23, 1995. In the dissolution decree, the court, inter alia, awarded the parties joint legal and physical custody of the three minor children, with the children's primary residence to be with the mother. The father was to pay the mother $475 per month in child support. Over the next four years, the dissolution decree was modified several times upon motions by both parties. As a result of those modifications, the mother, at the time of this proceeding, had sole legal and physical custody of Sherri, while the father had sole legal and physical custody of Robert II and Spencer.

On September 27, 2000, the father filed a "Motion to Modify Judgment Entry of Dissolution of Marriage" in the Circuit Court of Buchanan County, in which he requested a modification of the decree, awarding him sole legal and physical custody of Sherri; awarding the mother the sole legal and physical custody of Robert II; and restricting the mother's visitation with Spencer. On November 27, 2000, the mother filed an answer to the father's motion and a cross-motion to modify in which she requested that the trial court award the parties joint legal and physical custody of Sherri and award her sole legal and physical custody of Robert II and Spencer.

On February 27, 2001, the trial court held a pre-trial conference with counsel for the parties and the children's GAL, Barbara Braznell, from which the court determined that the primary dispute was over the custody of the parties' youngest child, Spencer. In addition, the parties agreed that the mother should retain sole legal and physical custody of Sherri and would be awarded sole legal and physical custody of Robert II. As a result, the only issue left for trial was the change of custody of Spencer sought by the mother in her cross-motion and the father's request for restricted visitation by the mother with Spencer in the event the mother's crossmotion as to Spencer was denied.

On March 12, 2001, the trial court interviewed Spencer, in camera. On that same date, the parties' motions were set for a one-day trial on May 24, 2001. Neither party objected to the trial court's one-day time limitation on the presentation of evidence.

On May 24, 2001, the parties' motions were taken up and heard. Prior to the presentation of evidence, the trial court informed the parties that each party would be limited to two and one-half hours to present evidence. Neither party objected to that time limitation. The father proceeded to introduce evidence, which, besides testimony from himself and his current wife, consisted primarily of testimony from social workers and school officials as to their interactions with Spencer and their observations of his behavior. At the conclusion of the father's evidence, the mother offered testimony from several witnesses which included, among others, a family therapist, her mother, and herself.

At the close of the mother's evidence, the GAL testified with respect to her opinion concerning the custodial arrangement that would be in Spencer's best interests. In that regard, she testified that it would not be in Spencer's best interests to transfer his custody to the mother. At the conclusion of this testimony, the trial court asked the GAL about the hours she had expended in the case and the fee she was requesting. The GAL advised the court that she would need time to submit a fee statement. The trial court ordered the GAL to file her fee statement with the court and to provide copies to the parties. The court urged the parties to come to some agreement with respect to the GAL fee, at least as to the time expended by the GAL and the reasonableness of the fee requested. The parties were advised that if an agreement was not reached, either party could request a hearing as to the amount of the GAL fee to be awarded and the share of the fee that each party was to pay. The case was then taken under advisement. On June 1, 2001, the GAL filed her fee statement with the trial court, copies of which were provided to the parties, requesting $5,081.20. The record indicates that neither party requested a hearing on the issue of the GAL fee to be awarded.

On July 13, 2001, the trial court entered its judgment modifying its prior decree as to custody and child support. In its judgment, the trial court sustained the father's motion to transfer sole legal and physical custody of Robert II to the mother, but overruled the father's motion seeking sole legal and physical custody of Sherri. The mother's cross-motion to change the sole legal and physical custody of Spencer from the father to her was denied, the court finding that there was not a substantial and continuing change of circumstances warranting such a modification. As to the father's motion to restrict the mother's visitation with Spencer, it was sustained, with the trial court ordering the mother's visitation to be restricted so that Spencer would not be left alone with Robert II while in the mother's custody. In addition, the trial court ordered the father to pay child support to the mother in the amount of $286 per month and awarded the GAL a fee of $5,081.20, $3,556.84 of which was to be paid by the mother. On August 11, 2001, the trial court entered an amended judgment, which contained additional findings with respect to the best interest factors set forth in § 452.375.2.

This appeal follows.

I.

In Point I, the mother claims that "the trial court abused its discretion in limiting [her] time to present her case by failing to prepare [a] pre-trial order." Before addressing the merits of this claim, we first must address the father's contention that the mother's point relied on preserves nothing for our review because it fails to substantially comply with Rule 84.04(d),2 setting forth the requirements for valid points relied on.

Rule 84.04(d) provides:

(1) Where the appellate court reviews the decision of a trial court, each point shall:

(A) identify the trial court ruling or action that the appellant challenges (B) state concisely the legal reasons for the appellant's claim of reversible error; and

(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.

The point shall be in substantially the following form: "The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error]."

This "`rule requires that each point...

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