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G.W.G. v. A.D.N.

Court of Appeals of Missouri, Eastern District, Fourth Division

December 19, 2017

G.W.G., BY AND THROUGH HIS NEXT FRIEND J.D.G., AND J.D.G., Respondents,
v.
A.D.N., Appellant.

         Appeal from Shelby County Circuit Court, Cause No. 15SB-DR00039, Honorable Mike Greenwell.

          OPINION

          COLLEEN DOLAN, P.J.

         A.D.N. ("Mother") appeals the trial court's Judgment and Decree for Custody, Visitation and Child Support that awarded her and J.D.G. ("Father") joint legal and physical custody of G.W.G. ("Child"), with Father designated as the residential parent. Mother offers three points on appeal. In her first point, Mother argues that the trial court erred in failing to recuse itself when the court stated, after it had entered its judgment, that the court had been aware Father had previously been charged with child molestation. Acknowledging that it had a duty to be fair, impartial, and make its decision based on the evidence presented at trial, the court stated that it had initially considered awarding custody to Father to be highly improbable when the trial began because of this prior criminal charge. In her second point, Mother contends that the trial court erred in designating Father as the residential parent and entering its parenting plan because the court misapplied the law. Mother further argues that the trial court's parenting plan and designation were unsupported by substantial evidence because the court gave undue weight to Father's residence in Shelby County and Mother's move to Palmyra, Missouri. In her final point, Mother argues that the trial court erred in awarding Father the income tax exemption for Child in alternating years because this allocation was a misapplication of the law in that the presumed child support amount is calculated with the assumption that the child support payee (Mother) receives the tax exemption, and the trial court had not found that the presumed child support amount was unjust and inappropriate.

         Mother's Point III is granted. We affirm in part and reverse in part, and we remand for the limited purpose of recalculating child support.

         I. Factual and Procedural Background

         The following facts and inferences were adduced from the evidence presented at trial. Child was born on October 24, 2011. Mother is employed as a janitor at a local Christian church; Father is self-employed as a farmer. Mother and Father shared child-rearing responsibilities and cohabitated in Father's home in Shelby County, Missouri until the fall of 2015, when Mother moved with Child without consulting Father. Mother relocated with Child to Palmyra, Missouri and subsequently denied Father contact with Child on multiple occasions. In addition to his requests to see Child, Father also expressed multiple times that he wanted Child to live with him.

         Father filed his Petition for Order of Paternity and Child Custody on December 7, 2015. By agreement of the parties, the trial court adjudged and declared Father to be child's natural father and established said paternity through its order entered on June 16, 2016. At trial, both parties presented proposed parenting plans; Father requested joint legal and physical custody with Father designated as the residential parent, while Mother requested joint legal custody and sole physical custody.

         After trial, the court entered its Judgment and Decree for Custody, Visitation and Child Support on July 28, 2016. The court, considering all relevant factors, concluded that it was in Child's best interest that the parties be awarded joint legal and physical custody and to adopt Father's proposed parenting plan designating Father as the residential parent. The court concluded that Father's parenting plan aligned with Child's best interest that he maintain meaningful contact with both parents. The court explained that designating Father as the residential parent would provide a more stable setting for Child. Father had lived in the Shelby County area for several years and expressed his intention to stay there indefinitely. Mother, however, had moved twice in the previous year and indicated she would consider relocating again for a better job opportunity. Additionally, because father worked at his own residence as a farmer, Child would be provided with an opportunity to see his parents more often if he lived with Father. As part of its judgment, the trial court also ordered Father to pay child support in the amount of $136.00 per month. Additionally, after finding that the presumed child support amount calculated by the Form 14 was "just and appropriate, " the court awarded the income tax exemption for Child to both parties in alternating years; Father was to receive the exemption in even years and Mother to receive the exemption in odd years.

         Following the trial court's entry of its judgment, Mother filed a Motion to Reopen the Evidence and New Trial. In her motion, Mother presented affidavits that a deputy sheriff had provided information indicating that an audio recording existed where Father confessed to child molestation. Evidence that Father had been tried and acquitted of this charge ten years earlier was presented at trial. During the hearing on Mother's motion, the trial court admitted to knowing of the child molestation charge against Father before trial in this case began, and further stated, "you're supposed to be fair and impartial and not pre-judge anything … I was thinking when we had the trial that there's probably no way I was ever going to give him the kid." The trial court subsequently denied Mother's motion.

         This appeal follows.

         II. Discussion

         Point I

         In Mother's first point on appeal, she argues that the trial court erred in failing to recuse itself when the court acknowledged, after it had entered its judgment, that the court had been aware Father had previously been charged and acquitted of child molestation. After the trial court had entered its judgment, it stated "you're supposed to be fair and impartial and not pre-judge anything … I was thinking when we had the trial that there's probably no way I was ever going to give him the kid." Despite evidence presented at trial of the molestation charge against Father and his eventual acquittal, Mother claims the court erred in failing to recuse itself because it was aware of facts outside the record and openly stated it had initially concluded that it was unlikely to award custody to Father because of the previous child molestation charge against him.

         Standard of Review

         Mother concedes that this point was not preserved for appellate review, and asks we review this point applying plain error review pursuant to Rule 84.13(c). Rule 84.13(c) allows this Court to review unpreserved plain errors affecting substantial rights, at our discretion, when we find that manifest injustice or miscarriage of justice has resulted therefrom.[1] Rarely will an appellate court find ...


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