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Nelson v. Nelson

Court of Appeals of Missouri, Eastern District, Fourth Division

September 6, 2016

ANGELA M. NELSON, Respondent,

         Appeal from the Circuit Court of St. Francois County 13SF-DR00443, Honorable Wendy Wexler Horn

          Gary M. Gaertner, Jr., Judge


         Daniel Nelson (Husband) appeals the judgment of the trial court dissolving his marriage to Angela M. Nelson (Wife). Husband argues that the judgment is against the weight of the evidence in its award of sole legal custody of the minor children to Wife, in the amount of visitation awarded as joint physical custody, in the division of property, and in the award of attorney's fees to Wife. We affirm in part, and we reverse in part and remand for the limited purpose of supplementing the parenting plans for the minor children to include visitation scheduled for all of the events enumerated in Section 452.310.8(1).[1]


         Husband and Wife were married on May 1, 1995. They have two minor children born of the marriage: F.N., currently age 16, and D.N., currently age 13.

         On September 23, 2013, Wife filed a petition for dissolution of marriage. Shortly thereafter, Husband filed a counter-petition for dissolution of marriage. Close in time, Wife obtained an ex parte adult order of protection against Husband, which prohibited Husband from contacting Wife but still allowed him to have contact with the children. While the dissolution proceeding was pending, on April 25, 2014, the trial court entered a Stipulation Pendente Lite providing a visitation schedule for the children as well as child support. On June 3, 2014, Husband filed a Family Access Motion, alleging Wife had refused to communicate with Husband and had prevented him from seeing the children.

         The trial court held a trial regarding the parties' dissolution on November 21 and December 12, 2014. In its judgment dissolving the marriage, the trial court made the following findings. Regarding the children, the trial court found that Wife made the children available to Husband for visits and did not object to Husband serving as soccer coach for the children. The trial court found that Wife is more likely to allow the children frequent, continuing, and meaningful contact with the other parent. The trial court also found that if granted custody of the children, Husband would substantially interfere with the children's relationships with Wife's family members. The trial court noted that Husband suffers from a psychiatric disorder and had failed to take his prescribed medications in the past, but that he now recognizes the need for the medication and takes it as prescribed.

          The trial court further found that D.N. has special needs, including learning disabilities, psychiatric, emotional, and behavioral disorders, and that Wife is best suited to make decisions regarding D.N.'s care. The trial court also found that the demands of caring for D.N.'s special needs made it inappropriate to expect that Wife could obtain full-time employment. The trial court noted that F.N. and D.N. are close, and that F.N. desires to live with Wife. The trial court found, however, that it is in D.N.'s best interest to spend more time with Husband because D.N. had animosity toward Wife.

         The trial court found that Husband and Wife are unable to communicate regarding the children in any meaningful way. The trial court specifically noted that Husband had unilaterally ended family counseling with one counselor and had employed another counselor for the purpose of obtaining a positive result in the dissolution proceeding. The trial court found that Husband failed to properly dispense D.N.'s medication while D.N. was in Husband's care, but now Husband agrees to do so. The trial court concluded based on all the evidence that it was appropriate to award sole legal custody of the children to Wife.

         The trial court also found that Husband had exhibited a pattern of domestic violence toward Wife, but there was no evidence of any abuse directed toward the children. The trial court determined that it was in the best interests of the children to award joint physical custody to the parties. The trial court ordered a visitation schedule wherein the children would spend every other weekend with Husband, beginning on Friday evening. F.N. would return to Wife's house on Sunday evening, and D.N. would spend Sunday night with Husband following the weekends he spent with Husband. Both children would have one weekly overnight period with Husband, and D.N. would have an additional weekly overnight period with Husband. The trial court also made alternate provisions for summer vacations and several holidays in the parenting plans for each child.

         Regarding the property division, the trial court heard testimony of the value of various pieces of marital property from both parties. Neither party provided appraisals for the real property at issue. The trial court accepted Wife's valuations set out in her property statement, and where she gave no opinion of value, the trial court accepted Husband's valuations. The trial court made a finding that Husband had committed misconduct during the marriage sufficient to support an unequal division of property in favor of Wife. The trial court also rejected Husband's claim that Wife committed misconduct in the form of fiscal irregularities. The trial court awarded Husband marital assets with a total value of $297, 166.50 and Wife those with a total value of $244, 104.50, both excluding household items and pensions. The trial court also awarded Wife fifty percent of Husband's military pension and fifty percent of Husband's pension with the State of Missouri that had accrued as of the date of the dissolution.

         The trial court did not award maintenance in light of the property division. The trial court ordered Husband to pay Wife $1, 163.00 monthly as and for child support. The trial court also awarded Wife attorney's fees in the amount of $14, 962.50 in lieu of maintenance and to supplement the child support award.

         Husband filed a motion to amend the judgment, as well as a subsequent motion to set aside or correct the judgment, or alternatively for a new trial. The trial court ultimately entered a second amended judgment changing the monthly child support amount to $786. This appeal follows.

          Standard of Review

         In reviewing a judgment of dissolution of marriage tried by the court, "we will affirm the judgment of dissolution unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law." Thorp v. Thorp, 390 S.W.3d 871, 879 (Mo. App. E.D. 2013) (internal quotation omitted). We defer to the trial court's ...

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