Capehart v. Capehart

110 S.W.3d 920, 2003 Mo. App. LEXIS 1239, 2003 WL 21757489
CourtMissouri Court of Appeals
DecidedJuly 31, 2003
Docket25016
StatusPublished
Cited by7 cases

This text of 110 S.W.3d 920 (Capehart v. Capehart) 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
Capehart v. Capehart, 110 S.W.3d 920, 2003 Mo. App. LEXIS 1239, 2003 WL 21757489 (Mo. Ct. App. 2003).

Opinion

ROBERT S. BARNEY, Judge

Timothy S. Capehart (“Husband”) appeals the judgment of the Circuit Court of Lawrence County dissolving his 18 year marriage to Diane Marie Capehart (“Wife”). In pertinent part, the judgment gave Husband and Wife joint legal custody of their five children' — Timothy Capehart, born October 31, 1985, (“Timmy”); Stephanie Capehart, born November 29, 1987, (“Stephanie”); Joseph Capehart, born April 21, 1994, (“Joseph”); Alexander Capehart, born September 9, 1996, (“Alexander”); and Angelea Capehart, born December 16, 1998, (“Angelea”). Further, Wife was awarded primary physical custody of Stephanie, Joseph, Alexander, and Angelea while Husband was awarded primary physical custody of Timmy, and Husband was ordered to pay Wife $1,022 a month as child support. In its division of marital property and indebtedness, the circuit court allocated to Wife debts totaling $841.18 and to Husband debts totaling $494,163.42.

Husband now raises three points of trial court error challenging the trial court’s grant of primary physical custody of Stephanie, Joseph, Alexander, and Angelea to *923 Wife; division of marital debts between the parties; and calculation of child support obligation.

“An appellate court must affirm the trial court’s judgment in a dissolution case if it ‘is supported by substantial evidence, it is not against the weight of the evidence, and it neither erroneously declares nor applies the law.’ ” In re Marriage of Turner, 5 S.W.3d 607, 609 (Mo. App.1999) (quoting In re Marriage of Sisk, 937 S.W.2d 727, 730 (Mo.App.1996)); see Murphy v. Carrón, 536 S.W.2d 80, 32 (Mo. banc 1976). In our review of the record on appeal, we accept as true the evidence and inferences therefrom favorable to the trial court’s judgment and disregard all contrary evidence. Turner, 5 S.W.3d at 609. “ ‘The trial court is free to believe or disbelieve all, part or none of the testimony of any witness.’ ” Id. (quoting Sisk, 937 S.W.2d at 730).

We note initially that, in violation of Rule 84.04(d)(1)(C) 1 , Husband’s points relied on fail to “explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.” Strictly speaking, failure to comply with the dictates of Rule 84.04 preserves nothing for appellate review. Coyne v. Coyne, 17 S.W.3d 904, 906 (Mo. App.2000). However, because we are “more tolerant regarding technical requirements [of Rule 84.04] when the questions presented relate to the welfare of children,” Rinehart v. Rinehart, 877 S.W.2d 205, 206 (Mo.App.1994), we will review the issues presented on their merits, provided that “ ‘the argument is sufficient in conjunction with the points relied on to ascertain the issues being raised.’ ” Stangeland v. Stangeland, 33 S.W.3d 696, 703 (Mo.App.2000) (quoting Landry v. Miller, 998 S.W.2d 837, 841 (Mo.App. 1999)). After reviewing Husband’s points relied on and arguments, we find that we are able to discern his claims of error therefrom and will review those claims ex gratia. Stangeland, 33 S.W.3d at 703.

In his first point on appeal, Husband contends that the trial court erred in awarding primary physical custody of Stephanie, Joseph, Alexander, and Angelea to Wife because the award was not supported by sufficient evidence, the award was against the weight of the evidence, and the trial court failed to comply with sections 452.375.9 and 452.310.7. 2

Husband points to evidence of Wife’s poor parenting skills, interference in Husband’s communication with the children, and marital misconduct as evidence that Wife should not have been awarded primary physical custody of Stephanie, Joseph, Alexander, and Angelea. Similarly, Wife identifies Husband’s living arrangements, “history of neglect”, preference for home schooling, and past behavior as evidence to justify the court’s judgment awarding Wife primary physical custody of Stephanie, Joseph, Alexander, and Ange-lea. However, an award of split custody presupposes that neither parent is unfit because, were either parent unfit, the court would not have awarded primary physical custody of any of the children with that parent. See D.S.P. v. R.E.P., 800 S.W.2d 766, 769 (Mo.App.1990). Viewing the evidence in the light most favorable to the verdict and ignoring all contrary evidence, we find there is sufficient evidence in the record from which the trial court could conclude that both Husband and Wife are fit parents.

*924 Wife had been a stay-at-home mother and the children’s primary caregiver throughout her marriage to Husband. This was especially true during the two-year period that Husband’s job required extensive travelling. Wife was also responsible for the home schooling of the children.

Husband had been home schooling Timmy since Timmy began living with him after Husband and Wife separated. Husband testified he had never made any negative comments about Wife to the children and believed that doing so would not be in their best interests. Further, Husband plans to seek employment as a college professor, which would provide greater benefits and latitude in his work schedule. Also, Timmy and Stephanie testified they wanted to live with Husband.

This constitutes sufficient evidence from which the trial court could conclude that both Husband and Wife are fit parents. Therefore, the trial court’s judgment awarding Wife primary physical custody of Stephanie, Joseph, Alexander, and Angelea was supported by the evidence and was not against the weight of the evidence.

Husband also alleges that the parenting plan did not meet statutory requirements. Section 452.375.9 provides that “[a]ny judgment providing for custody shall include a specific written parenting plan setting forth the terms of such parenting plan arrangements specified in subsection 7 of section 452.310.... ” Section 452.310.7 sets out the arrangements that must be addressed in every parenting plan outlining custody, visitation, residential time, and the specific factors that must be included in detailing how the decision-making responsibilities will be shared by the parents.

The trial court did not adopt the parenting plans submitted by Husband and Wife. In its judgment, the trial court identified a parenting plan “attached hereto and incorporated by reference herein”; however, the trial court failed to attach the referenced parenting plan. Husband concedes that the trial court intended to attach the parenting plan that accompanied the docket entry judgment in this case. 3

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Bluebook (online)
110 S.W.3d 920, 2003 Mo. App. LEXIS 1239, 2003 WL 21757489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/capehart-v-capehart-moctapp-2003.