Court of Appeals of Missouri, Western District, Fourth Division
GREGORY J. HALL, INDIVIDUALLY AND AS NEXT FRIEND FOR STACIA UTLEY, Appellant,
AMBER FRALA UTLEY, Respondent
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Jackson County, Missouri. The Honorable Christine T. Sill-Rogers, Judge.
Mary-Corinne Corley, Kansas City, MO, for appellant.
Kimberly J. Carlin and Nancy A. Garris, Independence, MO, for respondent.
Before Division Four: Alok Ahuja, Chief Judge, Presiding, Cynthia L. Martin, Judge and Randall R. Jackson, Special Judge. All concur.
Cynthia L. Martin, Judge.
Gregory Hall (" Father" ) appeals from the trial court's judgment of paternity that ordered the minor child to be placed in the sole legal custody of Amber Frala Utley (" Mother" ), ordered the minor child to be placed in the joint physical custody of Father and Mother, and ordered Father to pay child support. Father asserts that the trial court erred: (1) in failing to grant a new trial or amend the judgment regarding the calculation of child support based on newly discovered evidence; (2) in granting Mother sole legal custody; (3) in failing to make specific findings in its judgment requested by Father; (4) in designating Mother's address as child's principal address; (5) in issuing a protective order regarding Mother's medical condition; and (6) in admitting hearsay evidence. Finding no error, we affirm and remand to the trial court for consideration of Mother's request for attorney's fees.
Factual and Procedural Background
Mother gave birth to Stacia Utley (" the child" ) in February 2000. During the first year of the child's life, an administrative action determined Father to be the child's biological father and ordered Father to pay child support of $319 per month and to provide health insurance for the child.
The child has resided with Mother throughout the child's entire life. Although invited to the hospital for the child's birth, Father did not attend or visit the child in the hospital. Father's first contact with the child was when she was five weeks old. When the child was four
months old, Father began visiting the child at Mother's home every Sunday for approximately an hour. When the child was one year old, Mother and Father informally agreed that Father would have visitation every other weekend, and that the child could accompany him on family vacations.
This informal visitation agreement continued until March 2006 when, according to both Father and Mother, a dispute arose about the techniques Father's wife was using to discipline the child. From March 2006 to May 2007, Father did not visit the child, did not call Mother to ask how the child was, did not acknowledge the child's birthday or Christmas, and had no other contact with the child. In May 2007, Mother telephoned Father and told him that the child missed him. Father spent the following weekend with the child and thereafter resumed the informal every-other-weekend visitation arrangement.
On November 14, 2011, Father filed a petition to adjudicate paternity, custody, parenting terms, and support with respect to the child. In addition to requesting a judicial determination of paternity, Father's petition asked the trial court to award Father sole legal and sole physical custody of the child and to grant Mother supervised visitation. Father's petition alleged that Mother " has a history of drug abuse and is likely to be currently actively using unlawful drugs" and that Mother " has medical issues and economic stability issues which make it difficult or impossible for her to provide a stable home" for the child. Father's petition also requested that the trial court order Mother to pay child support.
Mother filed an answer and counter-petition. Mother's answer denied Father's allegations of drug abuse, medical issues, and economic instability. Mother's counter-petition asked the trial court to award joint legal and joint physical custody over the child, with equal parenting time. Mother's counter-petition also requested that the trial court order Father to pay child support and to pay Mother's attorney's fees and costs.
A trial was held over two days in August 2012 and in November 2012. Father, Father's wife, Father's mother, a private investigator hired by Father, and Mother testified during the trial. Father also entered Mother's deposition testimony into evidence. Following its consideration of the evidence, the trial court entered a judgment of paternity (" Judgment" ).
The Judgment declared Father to be the biological father of the child. The Judgment awarded sole legal custody of the child to Mother and joint physical custody of the child to Mother and Father. The Judgment directed the child to reside with Mother except on alternating weekends when the child would reside with Father, subject to a holiday and vacation schedule. The Judgment provided that Father would forfeit parenting time if he was working out of town. Mother's home was designated as the child's address for mailing and educational purposes. Father was ordered to pay Mother $1,371 per month in child support and to provide health, dental, and vision insurance for the child.
Father filed a motion for new trial or, in the alternative, for relief from judgment and suggestions/affidavits/exhibits in support thereof (" Motion" ). The Motion set forth several bases for relief, most of which are raised on appeal. The trial court overruled the Motion.
Father appeals, setting forth six points of error.
Point One: Whether Newly Discovered Evidence Necessitated a New Trial for the Child Support Calculation
Father's first point on appeal asserts that the trial court erred in denying the Motion. Father asserts that he was entitled to either a new trial or an altered or amended judgment because newly discovered evidence required a decrease in the presumed amount of child support. Specifically, Father claims that after the case was tried, but before the Judgment was entered, he learned he would not receive a substantial payment owed him on a subcontract, resulting in a substantial decline in his income. Father also claims that after the Judgment was entered, he determined that the cost of health insurance would be significantly higher than what the trial court and the parties had estimated.
We review the trial court's denial of a motion for new trial for abuse of discretion. Cent. Trust & Inv. Co. v. Signalpoint Asset Mgmt., LLC, 422 S.W.3d 312, 325 (Mo. banc 2014). The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks one's sense of justice and indicates a lack of careful consideration. Id. " Motions for new trial based on newly discovered evidence 'are looked upon with disfavor, and the party urging such an error on appeal must carry a heavy burden.'" Id. (quoting Soehlke v. Soehlke, 398 S.W.3d 10, 21 n.6 (Mo. banc 2013)).
Rule 78.01 provides:
The court may grant a new trial of any issue upon good cause shown. A new trial may be granted to all or any of the parties and on all or part of the issues after trial by jury, court or master. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact or make new findings, and direct the entry of a new judgment.
(Emphasis added.) To prevail on a motion for new trial based on newly discovered evidence, the party must demonstrate:
(1) that the evidence has come to [his] knowledge since the trial; (2) that the failure of the evidence to come to [his] knowledge sooner was not the result of a lack of due diligence; (3) that the evidence is so material that it would probably produce a different result if a new trial were granted; (4) that the evidence is not cumulative only; (5) that the parties' affidavit should be produced, or its absence be accounted for; and (6) that the object of the evidence is not merely to impeach the character or credibility of a witness.
Pijanowski v. Pijanowski, 272 S.W.3d 321, 324 (Mo. App. W.D. 2008). Father's " newly discovered evidence" fails to meet these requirements.
Father's Motion " request[ed] recalculation of child support to take into consideration newly discovered evidence that [Father's] 2012 income will be more than $32,000.00 less than his 2011 income which was used to calculate child support." To support this contention, Father attached two documents to the Motion: (1) Father's affidavit in which he stated that he learned after trial that a $32,000 subcontract payment owed to him would not be paid in 2012; and (2) a letter dated nearly a month after the entry of Judgment from a contractor confirming that approximately $32,000 owed to Father, a subcontractor, was not paid in 2012 because the contractor had yet to be paid by the customer.
While these documents, if accepted as true, establish that Father was not paid $32,000 he was owed in 2012, they do not establish that Father was entitled to a new trial based on newly discovered evidence.
First, the " newly discovered evidence" is cumulative of Father's trial testimony. Father generally testified that his income fluctuated from year to year and that he anticipated lower income in 2012 than that earned in 2011. Father did not testify that he wouldn't receive the $32,000 payment at all, but only that it would not be paid as he had hoped in 2012. Father's " new evidence" was merely cumulative of his trial testimony. Second, if the trial court calculated child support based on Father's 2011 income, as Father contends on appeal, then the trial court either disregarded Father's trial testimony about an anticipated reduction in income in 2012, or the trial court accepted Father's trial testimony that fluctuations in his income from year to year were not unexpected. Father has not established, therefore, that the " newly discovered evidence" of an unpaid subcontract payment was so material that its consideration would probably produce a different result.
The Motion also requested a new trial due to " the newly discovered evidence that the cost of health and dental insurance for the minor child will be more than three times the sum estimated at trial." Father attached copies of documents he received from his health insurance company following the entry of Judgment. Those documents indicate that because of the child's health history, the child could not be added to Father's health and dental insurance policy and would require a separate policy at a cost of $263.80 per month.
In calculating child support, the trial court had assumed the cost for health and dental insurance for the child would be $105 per month based on input from Father. Father's Brief explains that at trial, he divided his family's current insurance premium (which included insurance for other children Father had with his wife) to estimate the pro rata cost to add the child to his insurance. After the entry of Judgment, Father called his insurer and learned that the child could not be added to his policy and would require a separate policy. Father has not explained why this evidence could not have been discovered through due diligence prior to trial. " 'Due diligence is defined as that degree of assiduity, industry or careful attention called for under the circumstances of the case . . . .'" Pijanowski, 272 S.W.3d at 325 (quoting Higgins v. Star Elec., Inc., 908 S.W.2d 897, 903-04 (Mo. App. W.D. 1995)).
The trial court did not abuse its discretion in denying Father's Motion based on a claim of ...