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Fowler v. Fowler

Court of Appeals of Missouri, Eastern District, Fourth Division

September 6, 2016

SCOT A. FOWLER Respondent,

         Appeal from the Circuit Court of St. Louis County 2101FC-02864-03, Honorable Thomas J. Frawley

          Gary M. Gaptner, Jr., Judge


         Melissa Murphy Fowler (Mother) appeals the judgment of the trial court granting Scot A. Fowler's (Father) action for modification of child support. Mother asserts errors in the trial court's grant of unsupervised visitation, modification of legal custody, reliance on stale evidence in its custody determination, award of the dependent child tax exemption to both parents in alternating years, failure to attach a Form 14 to the judgment, and grant of attorney's fees. We affirm in part and reverse in part, and we remand for the limited purpose of recalculating child support.


         The parties married in 1998 and had one child, C.F., born in 2000. The marriage was dissolved in 2002. The dissolution judgment granted Mother sole legal and primary physical custody of C.F., ordered Father to pay $989 per month in child support, and awarded Father visitation and temporary custody. In 2003, Mother filed a motion to modify custody, alleging that Father had sexually abused C.F.[1] In 2005, Father consented to have his visitation with C.F. supervised at all times by Laura Milsk (Milsk), Father's then-girlfriend and current wife, or Marilyn Fowler, Father's mother. In accordance with the parties' agreement, the court entered the consent judgment without a trial modifying the dissolution judgment to grant Mother sole legal and physical custody. The modification judgment stated that it "approved and ordered" the attached parenting plan, which contained the parties' agreement for supervised custody; however, the modification judgment and its exhibits contained no reference to Father's alleged abuse. The modification judgment provided that although Mother had sole legal custody, she should confer with Father before making final decisions regarding schools and extra-curricular activities, and before making final decisions regarding non-emergency medical treatment. As well, the modification judgment stated that each parent shall be entitled to records from the other or a third party pertaining to C.F.'s medical and school records.

         In 2011, Father filed a motion to modify, seeking sole legal custody[2] and unsupervised custody. Mother filed a motion to dismiss on the grounds that Father had not alleged or proved he had received treatment and had been rehabilitated in compliance with Section 452.400.2(3), RSMo. (2000).[3] The trial court held a trial on the Section 452.400.2(3) issue, at which the following evidence was adduced.

         Father testified that he had never sexually abused C.F., and he stated, for support, that although there had been eleven hotline calls made against him during the pendency of Mother's 2003 motion to modify, none of the allegations of abuse were ever substantiated, and although the police investigated the allegations twice, he was never arrested or charged. Nevertheless, he stated that he settled Mother's 2003 motion to modify by agreeing to supervised visitation, because he could not afford to continue the legal battle and also to protect himself from continuing allegations of abuse. Since 2005, he had received mental-health treatment from a variety of therapists about the stress and anger stemming from Mother's allegations against him, and he believed he had been rehabilitated from those emotions. Dr. Daniel Levin, a clinical psychologist specializing in evaluations of cases of child abuse, performed an evaluation of Father in 2013. Dr. Levin opined that "one cannot be rehabilitated from something that one hasn't done, " and he concluded that Father could not be-and did not need to be-rehabilitated, because Father had done nothing from which to be rehabilitated.

         After the trial, the trial court found that when a judgment imposes supervised visitation following an allegation of abuse of the child but the allegation is not supported by a trial court finding or an admission by the parent of abuse, a trial court may modify the judgment without proof of treatment and rehabilitation of the parent. The trial court then in July of 2014 held a trial on the remaining issues, at which the following evidence was adduced, as relevant to the issues raised on appeal, viewed in a light most favorable to the judgment.[4]

         Dr. Maureen Taylor, a counselor who consults with Children's Home Society, testified that she met with C.F., then age 3, in 2003-2004 and concluded the child had been sexually abused by Father. Dr. Catherine Hasler, a clinical psychologist and C.F.'s current therapist, testified that C.F. believes she was sexually abused by Father.

         Dr. Margaret Rissman, a child psychologist, testified that she treated C.F. from 2005 to 2008 when she was five to eight years old, as well as Mother and Father. Dr. Rissman testified to the following. C.F. was afraid of Mother's anger, especially about breaking the rules Mother had imposed on Father's visitation, including what clothes to wear, what children C.F. could play with, what types of movies to see, and a ban on swimming in Father's custody. Dr. Rissman was not surprised C.F. believes Father sexually abused her, because she had "lived most of her life in an environment in which her father ha[d] been vilified as a terrible person" by Mother and Mother's family. Dr. Rissman stated that in her experience Mother was "openly manipulative, " and while truly Mother believed Father had sexually abused C.F., Mother also "needed for [C.F.] to not only have only the merest relationship with her father, but no relationship with her stepmother, who she insisted be called the supervisor and not her stepmother." Dr. Rissman stated that based on her exposure to the family in therapy, she did not believe Father had sexually abused C.F., and that she could see no need for supervised visitation.

         Father testified that Mother has not conferred with him regarding where to send C.F. to school or in which extra-curricular activities she would participate. He believed different schools would have been better choices, but Mother overruled his suggestions. Moreover, when C.F. attended St. Mary Magdalen School in 2006, Mother requested that Father not be-and he was not-listed in the school directory. Mother switched C.F. from St. Mary Magdalen to St. Clare of Assisi in the middle of the school year without telling Father, and again Father was not listed in that school directory. When Mother enrolled C.F. in Barat Academy for high school, she did not list Father on the enrollment information. When Father requested the contact information for C.F.'s coaches, Mother refused that information, saying Father could get any information from her. When Father tried to contact the coaches directly for various schedules, he was denied the information. Although Father has requested that Mother provide him with a copy of C.F.'s insurance card, Mother has refused. Father stated that if he received sole legal custody, he would confer with Mother before making decisions and would keep C.F. in the school where she was currently enrolled for the remainder of the school year, but after that, it would depend on his finances. As well, Father had no intention to change C.F.'s extracurricular activities.

         Mother testified that she did consult with Father on her school choices for C.F. Mother denied telling C.F. Father had sexually abused her, denied having a rule that C.F. could only wear certain clothes at Father's home, denied telling school personnel or coaches not to talk to Father, denied failing to include Father's information on Barat Academy's enrollment form, and denied calling Milsk "the supervisor"-immediately after entering an exhibit in which Mother referred to Milsk as "the supervisor" rather than by her name. Mother agreed that supervised visitation was no longer necessary. C.F. also testified, and we will recite her testimony only as necessary in the points on appeal.

         In March of 2015, the trial court entered its 55-page judgment in which it (1) awarded Father sole legal custody of C.F., (2) awarded Mother and Father joint physical custody, (3) ordered Father to pay to Mother $535 each month for child support, calculated "in accordance with, and pursuant to, the Missouri Child Support Guidelines (Rule 88.01), " (4) ordered Father to provide medical insurance for C.F., (5) granted Father the right to claim C.F. as an exemption for federal and state income tax purposes in 2015 and succeeding years, and (6) ordered Mother to pay $15, 000 towards Father's attorney's fees. The trial court later modified the judgment to grant Mother and Father the tax exemption in alternating years, after again stating that the child support amount had been determined in accordance with Rule 88.01.

         In support of its change of legal custody, the trial court concluded that Mother and Father were unable to communicate and that Mother "places her own selfish interests ahead of the best interests of the minor child" to an extent that called her judgment into question, thus requiring Father to be the residential parent making decisions for C.F.'s health and education. The court further found that Mother's efforts to alienate C.F, from Father violated Mother's obligations under the dissolution judgment and were not in C.F.'s best interests. As for Father's request for unsupervised visitation, the trial court found that unsupervised visitation would not endanger C.F.'s physical health nor impair her emotional development. Last, the court found that although both parties had sufficient funds to pay his or her own attorney's fees, Mother's repeated interference with Father's relationship with C.F. and "unrelenting effort to alienate the minor child" from Father caused him to incur unnecessary attorney's fees. This appeal follows.


         Point I

         In her first point on appeal, Mother argues that the trial court erred in awarding Father unsupervised custody of C.F. without proof that Father had received treatment and was rehabilitated, as required in Section 452.400.2(3). We disagree.

         This Court will uphold the trial court's judgment unless it lacks substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In matters concerning visitation, we give great deference to the trial court's decisions. McDaniel v. McDaniel. 982 S.W.2d 729, 731 (Mo. App. E.D. 1998). Statutory interpretation is a question of law that we review de novo. In re L.M., 488 S.W.3d210, 214 (Mo. App. E.D. 2016).

         Here, the original dissolution judgment awarded unsupervised visitation to Father. Three years later, the parties consented to a modification of the dissolution judgment, placing restrictions on Father's visitation in the form of supervised visitation. Father now seeks removal of the supervised visitation. The trial court allowed removal of the supervision, over Mother's objections that Father failed to comply with Section 452.400.2(3), which requires that, after a court has previously ordered supervised visitation "because of allegations of abuse, " the party seeking change must show "proof of treatment and rehabilitation" before a court can order unsupervised visitation, The question for this Court on appeal is whether Section 452.400.2(3) applies ...

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