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Davis v. Davis

Court of Appeals of Missouri, Western District, Fourth Division

July 16, 2019

BRYAN E. DAVIS, SR., Respondent,
v.
CARLETTA VERLICE DAVIS, Appellant.

          Appeal from the Circuit Court of Jackson County The Honorable Joel P. Fahnestock, Judge.

          Before: Karen King Mitchell, C.J., and Alok Ahuja and Cynthia L. Martin, JJ.

          Alok Ahuja, Judge.

         Carletta Davis ("Wife") appeals from the judgment of the Circuit Court of Jackson County dissolving her marriage to Bryan Davis ("Husband"). Wife raises three Points on appeal. First, she argues that the circuit court erred in its division of marital property between Husband and Wife. Second, Wife argues the trial court erred when it awarded Husband and Wife equal parenting time with their son, but characterized its judgment as awarding "sole physical custody" to Husband. Third, Wife argues the trial court erred when it denied her request for maintenance.

         Because Wife was awarded a significant amount of parenting time in the circuit court's parenting plan, the judgment awarded the parties joint physical custody; it did not award Husband sole physical custody. We accordingly amend the judgment to reflect that Husband and Wife have joint physical custody of their son. We affirm the circuit court's judgment in all other respects.

         Factual Background

         Husband and Wife were married on May 13, 2006. They have three children: two daughters who are over the age of eighteen and now emancipated; and one minor son ("Son"). Husband is employed at the Department of Treasury. Wife worked for the City of Kansas City until 2013, but was unemployed at the time of trial. Husband and Wife separated on April 21, 2016.

         On May 11, 2016, Husband filed a petition for dissolution of marriage. In his petition, Husband requested that he and Wife have joint legal and physical custody of Son. Wife filed her answer and counter petition for dissolution of marriage on May 31, 2016. In her counter-petition, Wife requested that she be awarded maintenance.

         The original trial date was continued by agreement of both parties due to the withdrawal of Wife's original counsel. A new trial date was set for February 26, 2018. On February 2, 2018, less than a month before trial, Wife's new counsel likewise withdrew. Trial was held as scheduled on February 26, 2018, with Husband represented by counsel, and Wife proceeding pro se.

         At trial, Husband testified that it was in Son's best interest for Husband to have sole legal and sole physical custody. Although Husband's dissolution petition had requested that the parties be awarded joint legal and physical custody over Son, Husband testified that he now sought sole legal and sole physical custody because Wife had denied him parenting time throughout the pendency of the dissolution proceeding. Husband testified that, from October 2016 to the date of trial on February 26, 2018, he only had ten to fifteen weekends of parenting time with Son. He also testified that, after Husband and Wife separated, Wife moved twice without telling him her new address. Husband testified that when he attempted to exercise his regularly scheduled parenting time with Son, Wife would come up with excuses why it could not happen. Further, Husband testified that Wife changed Son's school after the petition was filed without consulting him, or telling him Son's new school. After Husband identified the school where Son was now enrolled, he learned that Wife had not identified him as Son's father in Son's enrollment paperwork. Husband also testified that Wife got Son a new cell phone, but did not give Son's new phone number to Husband. If he was granted sole legal and sole physical custody, Husband testified that he would allow Wife to have meaningful contact with Son, and would include Wife in decision-making concerning Son.

         Husband offered two proposed parenting plans into evidence. The first provided that Husband and Wife would share joint legal and joint physical custody of Son. Husband also offered an updated parenting plan which awarded him sole legal and sole physical custody of Son. While discussing the two plans, Husband's counsel noted that the updated parenting plan awarded the parties the same parenting time as Husband's original proposed parenting plan; only the designation of physical custody as "sole," instead of "joint," differed between the two plans.

         Husband requested that property be divided as proposed in his statement of marital and non-marital assets and debts, which was entered into evidence. Relevant to this appeal, Husband's statement provided that his Federal Employment Retirement System account would be awarded in its entirety to Husband, and that Wife would be awarded sole ownership of her City of Kansas City retirement account. Husband did not provide any evidence to the circuit court concerning the value of either account. On his statement Husband identified the house in which the family lived before the separation as his non-marital property.

         During Wife's direct testimony she offered a letter from the Social Security Administration which she claimed showed that she was unable to work. Wife requested that she be awarded maintenance because of her inability to work. Wife testified that she was in agreement with having joint legal and joint physical custody of Son.

         The court asked Wife how her desired division of property compared to Husband's. Wife requested that she be awarded certain specific household furnishings. Husband indicated that he agreed. The court then asked Wife if she had "[a]ny problems with the property that [Husband] laid of [sic], the way he laid it out?" After it was clarified that Husband would need fourteen days to gather the property being awarded to Wife, she stated that she had "no problem, no problem" with the way Husband divided the property. The court again asked Wife: "Any other property issues that you have a problem with? Any other, you know, you heard what [Husband] said about who was going to keep what. Do you have any problems with any of that?" Wife answered "No."

         The circuit court's dissolution judgment found that it was in Son's best interest to be in the sole legal and sole physical custody of Husband. Of the eight best interest factors listed in § 452.375.2, RSMo, the trial court found that six favored Husband. The judgment divided parenting time equally between Husband and Wife. The judgment awarded Husband overnight parenting time every Tuesday and Thursday night throughout the year, and on alternating weekends from Friday afternoon until Monday morning. Wife was awarded overnight parenting time every Monday and Wednesday night, and alternating weekends. The judgment also equally divided parenting time on holidays.

         The court found that, based on the evidence presented at trial, Wife was not entitled to maintenance. Although "there was evidence [Wife] is currently not working, she provided no evidence she is permanently disabled and can perform no work in the future. She submitted no medical testimony or medical records, and she ...


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