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S.F.G. v. A.M.G.

Court of Appeals of Missouri, Eastern District, First Division

December 31, 2019

S.F.G. BY NEXT FRIEND A.E.R., AND A.E.R., INDIVIDUALLY, Respondent,
v.
A.M.G., Appellant.

          Appeal from the Circuit Court of Washington County Hon. Troy K. Hyde

          ROBERT G. DOWD, JR., JUDGE

         A.M.G. ("Mother") appeals from the judgment entered by the trial court on the petition of A.F.R. ("Father") for paternity and child custody, awarding Father sole legal and physical custody of the parties' minor child ("the Child") with visitation to Mother, awarding child support to Father, ordering Mother to pay $3, 500 of Father's attorney's fees and ordering Mother to pay $2, 450 of the $3, 450 in guardian ad litem fees.[1] We affirm in part and reverse and remand in part.

         The Child was four years old at the time of trial, and the record indicates that the Child suffers various medical conditions and developmental delays, including: autism, obstructive sleep apnea, failure to thrive, asthma, gross motor delay, fine motor delay, Ehlers-Danlos Syndrome and hypersensitive sensory processes disorder. At the time of Father's petition, the Child lived with Mother who testified that she managed all of the Child's complicated medical care and appointments with various providers and that Father was not involved in the Child's care and treatment. Mother also claimed to have an order of protection against Father. In addition, during the two years the case was pending, a GAL was appointed, Mother sought two temporary restraining orders against Father and there were six court orders regarding custody and visitation. Father testified to various periods when his visitation was withheld by Mother in violation of the trial court's orders and to multiple allegation of suspected abuse of the Child against Father, which were all found to be unsubstantiated or without sufficient evidence. Following trial, the trial court entered a judgment granting Father sole legal and physical custody with visitation to Mother on alternating weekends. Mother was also ordered to pay $115 in monthly child support, $3, 500 of Father's attorney's fees and $2, 450 of the remaining $3, 450 GAL fees. This appeal follows.

         Mother raises four points on appeal: (1) the trial court erred in awarding sole legal and physical custody to Father because there was no substantial evidence to support the decision and because the award was against the weight of the evidence in that the trial court failed to focus on the custody arrangement that was in the Child's best interest but instead focused on actions during the litigation, thereby misapplying the applicable statute; (2) the trial court erred in awarding sole legal and physical custody to Father because there is no substantial evidence to support the decision and the decision is against the weight of the evidence in that the trial court made factual conclusions that form the basis for its judgment which were not supported by the evidence at trial; (3) the trial court erred in awarding child support to Father because there was no substantial evidence to support the decision and the decision was against the weight of the evidence in that the trial court's conclusion that Mother was capable of working and earning was speculative, unsupported and unsubstantiated given that that the only evidence presented on the issue was that Mother was receiving disability benefits and (4) the trial court erred in apportioning GAL fees and attorney fees because there was no substantial evidence to support the decision and it was against the weight of the evidence in that the court was inappropriately influenced by and placed undue weight upon inaccurate and misleading testimony about Mother's actions during the pendency of the case.

         We will affirm the trial court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence or it erroneously declares or applies the law. Sutton v. McCollum, 421 S.W.3d 477, 479 (Mo. App. S.D. 2013). "Substantial evidence means competent evidence from which the trial court could reasonably decide the case." Dunkle v. Dunkle, 158 S.W.3d 823, 832 (Mo. App. E.D. 2005) (internal quotation marks omitted). "We defer to the trial court's superior ability to assess the credibility of witnesses and view all the facts and reasonable inference in the light most favorable to its decision." Id. at 832-33. "In assessing the sufficiency of the evidence, we examine the evidence and the reasonable inferences derived therefrom in the light most favorable to the judgment." Sutton, 421 S.W.3d at 479 (internal quotation marks omitted). The weight of the evidence refers to weight in probative value not the quantity of the evidence. Id. We exercise extreme caution in considering whether a judgment should be set aside because it is against the weight of the evidence and will do so only when we have a firm belief the judgment was wrong. Id.

         Mother's first two points on appeal involve the trial court's custody award. In her first point, Mother argues the trial court erred in awarding Father sole legal and physical custody because there was no substantial evidence to support the decision and the decision was against the weight of the evidence in that the trial court failed to focus on the custody arrangement that was in the Child's best interest but instead focused on actions during the litigation, thereby misapplying the applicable statute. In particular, Mother claims she demonstrated the ability to make the necessary living, legal and medical decisions and arrangements for the Child's best interest and Father has not. Instead, Father has indicated an inattention to the Child's needs and likelihood that he would deny the Child necessary medical treatment. Mother claims that when relevant factors for determining custody are considered, the trial court's decision is against the weight of the evidence.

         We note at the outset that Mother's point relied on combines a substantial-evidence challenge, an against-the-weight-of-the-evidence challenge and a misapplication-of-the-law challenge. These are distinct claims and must appear in separate points relied on in Mother's brief to be preserved for our review. See Hopkins v. Hopkins, 449 S.W.3d 793, 802 (Mo. App. W.D 2014); Cerna-Dyer v. Dyer, 540 S.W.3d 411, 415 (Mo. App. W.D. 2018); Ivie v. Smith, 439 S.W.3d 189, 199 n.11 (Mo. banc 2014). We will review the point ex gratia. A substantial-evidence challenge and an against-the-weight-of-the-evidence challenge necessarily involve review of the trial court's factual determinations. Hopkins, 449 S.W.3d at 802. "A court will overturn a trial court's judgment under these fact-based standards of review only when the court has a firm belief that the judgment is wrong." Id. (internal quotation marks omitted). "In reviewing questions of fact, the appellate court defers to the trial court's assessment of the evidence if any facts relevant to an issue are contested." Id. (internal quotation marks omitted).

         "With respect to custody and visitation issues, the trial court has broad discretion, and we give even greater deference to these decisions than in other civil cases." Dunkle, 158 S.W.3d at 833. We do not reweigh the evidence, even if the evidence could have supported a different conclusion. Id. We presume the trial court awarded custody consistent with the child's best interests after reviewing all of the evidence and will reverse the decision only if we are firmly convinced that the welfare and best interest of the child require otherwise. Id.

         Section 452.375 applies to the initial custody award in paternity cases as well as dissolution cases. Sutton, 421 S.W.3d at 481 (internal quotation marks omitted). According to Section 452.375.2, the trial court "shall determine custody in accordance with the best interests of the child." When the parties are unable to agree on all issues related to custody, the court shall consider all relevant factors and enter written findings and conclusions of law, including, but not limited to, the following:

(1) The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties;
(2) The needs of the child for a frequent continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interest;
(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
(5) The child's adjustment to the child's home, school, and community;
(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. . . .;
(7) The intention of either parent to relocate the principal residence of the child; and
(8) The wishes of a child as to the child's custodian .....

         The trial court considered each of these factors in its judgment here. The trial court noted that Father's parenting plan requested sole legal and physical custody to Father while Mother's parenting plan requested sole legal and physical custody to Mother. While Mother argues the trial court erred in granting Father sole legal custody because Mother has demonstrated the ability to make the necessary legal and medical decisions and arrangements for the Child's best interest, Mother concedes in her brief that legal custody should rest with only one parent given that "the parties harbor significant animosity to one another and have major impediments to a cooperative approach to parenting of [the Child]." Mother argues that it is in the Child's best interest for Mother to be awarded sole legal custody given Mother's demonstrated ability to make the necessary legal and medical decisions and arrangements. ``

         Within its discussion of the parties' parenting plan per Section 452.375.2(1), the trial court found that Mother and Father cannot communicate with one another based on their history of animosity and Mother's selective enforcement of her order of protection Mother purported to have against Father. The trial court found that Mother claimed to have an order of protection for a period of four years, but also found that Father testified that Mother had come to Father's residence, walked into Father's residence, arrived ninety minutes early to points of exchange to pick up the Child, suggested she accompany Father on his day trips for visitation and claimed Father met her in a park and had sexual relations. The trial court further noted Father's testimony that when he attempted to communicate via "Talking Parents," a platform for communication between the parties which was set up by Mother's counsel, Father was reported for violating the order of protection. The trial court also noted that Mother communicated with Father via "Talking Parents" during periods of time when the Child was with Father, but Mother refused to communicate with Father via "Talking Parents" when the Child was in her custody. Based upon this conduct, the ...


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