Court of Appeals of Missouri, Western District, Fourth Division
BRYAN E. DAVIS, SR., Respondent,
CARLETTA VERLICE DAVIS, Appellant.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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."
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.
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 ...