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Cerna-Dyer v. Dyer

Court of Appeals of Missouri, Western District, Third Division

February 20, 2018

NELLY SOBEIDA CERNA-DYER, Respondent,
v.
SCOTT ALEXANDER DYER, Appellant.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Susan E. Long, Judge

          Before: Gary D. Witt, Presiding Judge, Lisa White Hardwick, Judge and Edward R. Ardini, Jr., Judge

          OPINION

          Gary D. Witt, Judge

         Scott Dyer ("Father") appeals the judgment of the Circuit Court of Jackson County dissolving his marriage to Nelly-Cerna Dyer ("Mother") and granting Mother joint physical and joint legal custody of the parties' son A.D. ("Child"). Father argues that the court erred in failing to award equal parenting time for each party with Child. Finding no error, the trial court's judgment is affirmed.

          Factual Background[1]

         Father and Mother were married on May 30, 2009. Child was born to the marriage and is now five years old.

         On approximately April 10, 2015, Mother and Father separated. Following the separation, Mother and Child sought an alternative residence while Father remained at the residence owned by Father's mother, Dr. Diann Taylor ("Taylor"). Mother filed a Petition for Dissolution of Marriage on April 15, 2015, along with a Proposed Parenting Plan providing for joint custody and asserting that Mother's address should be used for educational and mailing purposes.

         In response, Father filed a counter Petition for Dissolution of Marriage on April 24, 2015. Father filed his Proposed Parenting Plan requesting joint legal and physical custody on April 29, 2015. Father's Proposed Parenting Plan asserted that his address should be used for educational and mailing purposes on behalf of Child and provided equal parenting time under which both parents would alternate parenting time on a weekly basis.

         During the time of separation, Father had parenting time with Child on alternating weekends from Friday at 4:00 p.m. to Sunday at 6:00 p.m. and weekly from Wednesday at 4:00 p.m. until Thursday at 6:00 p.m. At all other times, except designated holidays and extended parenting time in the summer, Child was in Mother's care. A Guardian ad Litem ("GAL") was appointed.

          A trial was held on August 5, 2016 and August 26, 2016. Mother testified that she was concerned with Father's drinking because when she lived with him, he would drink enough to be intoxicated on a daily basis. Father testified that he drank on a situational basis and Taylor testified that Father drank only one or two drinks a week. Anna Kobe ("Kobe"), Taylor's caretaker, testified that she had only witnessed Father drink one beer during the several year period that she had been caring for Taylor in the same home where Father lived. Mike Bledsoe ("Bledsoe"), Father's friend and Child's godfather, testified that on a night when Father was possibly going to have parental time with Child, Father consumed approximately six beers.

         GAL presented a Proposed Parenting Plan, which included that "neither parent shall consume alcohol or other intoxicating substance while the [C]hild is in their care" and that "neither parent shall consume alcohol within 12 hours of residential parenting time." Father testified that he was not in agreement with the language because he wanted the opportunity to have a beer, if he wanted, while Child was in his care.

         Mother testified that she was also concerned with Father's firearms. Father had approximately three firearms in the marital residence, one of which was kept loaded. None of the firearms had child safety locks or any other safety device on them that would prevent an individual from pulling the trigger. One of the firearms is a shotgun which was stored under the bed. Mother testified that Child was able to crawl under the bed and touch the shotgun. Father testified that the only weapon in the home which was loaded was in the kitchen out of reach of Child and that all other firearms were stored with the firearm separated from the ammunition. Father is a competitive shooter. Mother also owned at least one firearm she kept in her home.

         From July 2015 to July 2016, either Taylor or Mother's mother provided childcare for Child. Father did not agree with enrolling Child in daycare due to the costs and availability of Taylor to provide childcare at no cost. Over Father's objection, Child has been attending Creative World School for childcare since July 2016. Mother testified that she was happy with Creative World School and that Child seemed happy with the program. Father did not take Child to Creative World School during his parenting time but had Taylor provide care for Child when Father was at work.

         Taylor suffers from a chronic medical condition which requires her to have a medical caregiver (Kobe) each day because her medical condition precludes her from standing for extended periods of time and periodically results in disabling headaches that require her to lay in bed until the headache passes. Kobe is prohibited by her contract as a caregiver for Taylor, from caring for Child. When ...


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