Aurich v. Aurich

110 S.W.3d 907, 2003 Mo. App. LEXIS 1231, 2003 WL 21754997
CourtMissouri Court of Appeals
DecidedJuly 31, 2003
DocketWD 60572, WD 60601
StatusPublished
Cited by21 cases

This text of 110 S.W.3d 907 (Aurich v. Aurich) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aurich v. Aurich, 110 S.W.3d 907, 2003 Mo. App. LEXIS 1231, 2003 WL 21754997 (Mo. Ct. App. 2003).

Opinion

PATRICIA BRECKENRIDGE, Judge.

Lawrence Aurich (Husband) appeals the trial court’s judgment dissolving his marriage to Maria E. Aurich (Wife). On appeal, Husband alleges error in (1) the custody order; (2) the award of maintenance to Wife; (3) the award of attorney’s fees to Wife; and (4) the calculation of child support. Wife cross-appeals, claiming that the trial court erred in limiting the duration of the maintenance award to sixty months. This court finds that the trial court did not err in making the custody order, awarding Wife maintenance, awarding Wife attorney’s fees, or in calculating child support. The trial court did, however, err in limiting the duration of Wife’s maintenance to sixty months. Accordingly, the judgment of the trial court is affirmed, in part, and reversed, in part, and remanded.

I. Factual and Procedural Background

Husband and Wife were married on June 7, 1986. They have two children. Wife also has another daughter, who was born before the marriage and was legally adopted by Husband. All three children are unemancipated.

Husband and Wife separated on December 23, 1997. Approximately one month later, Husband filed a petition for dissolution of marriage. In his petition, Husband asked, inter alia, to be granted sole legal and physical custody of all three of the parties’ children. Subsequently, Wife filed a cross-petition for dissolution of marriage. In her petition, Wife also asked to be awarded sole legal and physical custody of the parties’ children. In addition, Wife requested child support and maintenance.

A hearing was held before a commissioner on February 13 to 16, 2001, and March 9, 2001. On September 4, 2001, the commissioner entered his findings and recommendations for judgment of dissolution of marriage, which were adopted by the trial court as its judgment. In its judgment, the trial court awarded Husband and Wife joint legal and physical custody of the children, with Wife’s residence designated as the children’s residential address for mailing and educational purposes. Husband was awarded frequent and regular parenting time with the children, and he was ordered to pay child support in the amount of $1,230 per month. Concerning Wife’s request for maintenance, the trial court ordered Husband to pay Wife $1,000 per month as maintenance for a period of sixty months and made this order modifiable. The trial court also or *911 dered Husband to pay $3,000 of Wife’s attorney’s fees. Husband and Wife both appealed.

Before addressing the parties’ points on appeal, this court will address Wife’s motion to strike Husband’s brief because his statement of facts does not comply with Rule 84.04, in that it is “conclusory, argumentative, omit[s] all references to any facts which would support the judgment or which contradict his characterization of the facts and, in other instances, fail[s] to contain any specific reference to the legal file or the transcript.” This court agrees that Husband’s statement of facts is deficient. Nevertheless, because the appeal involves child custody, this court will deny Wife’s motion.

II. Standard of Review

“This court will review the judgment of the trial court under the standard of review applicable to any other court-tried case.” Eckhoffv. Eckhoff, 71 S.W.Bd 619, 622 (Mo.App.2002). The judgment will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976).

III. Husband’s Appeal

A. No Error in Custody Order

In his first point, Husband claims that the trial court erred in making its custody order. When reviewing custody awards, this court gives the trial court “greater deference in child custody matters than in other matters.” Bedwell v. Bedwell, 51 S.W.3d 39, 41 (Mo.App.2001). As such, this court must “defer to the trial court’s assessment of witness credibility[,] accept its resolution of conflicting evidence[,]” and “presume that it reviewed all of the evidence and decided the matter in the children’s best interests.” Riley v. Campbell, 89 S.W.3d 551, 552 (Mo.App. 2002). Therefore, this court “will not disturb the trial court’s judgment absent a showing’ that the welfare of the children requires a different disposition or the judgment is manifestly erroneous.” McDonald v. Burch, 91 S.W.3d 660, 663 (Mo. App.2002).

In this case, the trial court stated that it made its custody determination after considering the public policy of this state, as set forth in section 452.375.4, RSMo 2000, 1 and the specific factors listed in section 452.375.2. 2 Because it rejected both par *912 ties’ parenting plans, the trial court included detailed findings regarding each factor in section 452.375.2. Based on its findings, the trial court concluded that it was in the children’s best interests to award joint legal and physical custody to Husband and Wife. The trial court designated Wife’s residence as the children’s residence for mailing and educational purposes. The trial court also awarded Husband frequent and regular parenting time with the children.

It should be noted that although the trial court awarded Husband and Wife joint physical custody of the children, both parties refer to the custody order as awarding Wife “primary physical custody” or “primary custody” of the children. This court has recently clarified, however, that the only types of custody provided for by section 452.375.1(1) are “ ‘joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof.’ ” Loumiet v. Loumiet, 103 S.W.3d 332, 336 (Mo.App.2003) (quoting section 452.375.1(1)). This court explained that “[i]n the context of joint physical custody, ‘primary physical custody’ is sometimes used to describe the custodial award where, although both parents are awarded significant periods of custodial time, one receives substantially more time, and ‘primary physical custodian’ is used to describe that parent.” Id. at 338. Yet, this court went on to say that because of the confusion “this phraseology” can engender and “the stigma that some parents attach to one parent being designated the primary custodianf,]” “it would seem appropriate to abandon the ‘primary’ nomenclature in custody cases and employ the joint and sole terminology!)]” Id. Thus, since there is no “primary physical custody” or “primary physical custodian,” this court will assume that Husband is actually challenging the custody time awarded to both parents because, although both parties share joint physical custody, Wife was awarded more time with the children under the parenting plan than he.

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Bluebook (online)
110 S.W.3d 907, 2003 Mo. App. LEXIS 1231, 2003 WL 21754997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aurich-v-aurich-moctapp-2003.