Cooley v. Cooley

131 S.W.3d 901, 2004 Mo. App. LEXIS 586, 2004 WL 884949
CourtMissouri Court of Appeals
DecidedApril 27, 2004
DocketNo. WD 62905
StatusPublished
Cited by1 cases

This text of 131 S.W.3d 901 (Cooley v. Cooley) 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
Cooley v. Cooley, 131 S.W.3d 901, 2004 Mo. App. LEXIS 586, 2004 WL 884949 (Mo. Ct. App. 2004).

Opinion

HAROLD L. LOWENSTEIN, Judge.

The parties to the dissolution, Michael Cooley (Father) and Brenda Cooley (Mother) were married in 1994, while Mother was on active duty with the Air Force. In 1996, the parties’ only child, Marilyn, was born. During this time, the family lived in Abilene, Texas.

In April 1997, when the child was approximately seven months old, Mother volunteered for a six-week tour of duty in England, leaving Father to care for the child. After the tour of duty ended, Mother returned home. Then, shortly after the child’s first birthday, Mother left for a five-month involuntary tour of duty in Saudi Arabia. While in Saudi Arabia, Mother decided to re-enlist. When he found out that Mother had decided to re-enlist, Father became upset, prompting Mother to withdraw her re-enlistment. After serving in Saudi Arabia, Mother returned to the United States and rejoined her family in Kansas City, Missouri, where the family lived with Mother’s parents.

In late 1999, after living with Mother’s parents for approximately one-and-one-half years, the family moved into its own [903]*903home. The family lived together there until June 2000, when the parties separated and Mother moved out of the home. Father filed a petition for dissolution of marriage in July 2000.

Following trial, primary child custody was granted to Father. Mother appealed, and this court remanded the case, because the trial court failed to make any findings regarding domestic abuse. Cooley v. Cooley, 99 S.W.3d 518, 519-20 (Mo.App.2003). After remand, the trial court entered a second amended judgment, from which Mother appeals.

Standard of Review

Provisions in a divorce decree will be affirmed unless there is no substantial evidence to support them, they are against the weight of the evidence, or the trial court incorrectly declares or applies the law. Stangeland v. Stangeland, 33 S.W.3d 696, 700 (Mo.App.2000). In a case involving child custody, more so than in any other type of case, great deference is given to the trial court’s judgment. Parker v. Parker, 66 S.W.3d 778, 786 (Mo.App.2002). It is presumed that the trial court awarded custody based on the best interest of the child. Seaman v. Seaman, 41 S.W.3d 889, 892 (Mo.App.2001). Therefore, an award of child custody will not be disturbed unless the appellate court is firmly convinced that the welfare of the child requires some other disposition. Miers v. Miers, 53 S.W.3d 592, 595 (Mo.App.2001).

Analysis

Mother claims that the trial court erred in awarding primary custody of the child to Father, because the court’s finding that it was in the child’s best interest was against the weight of the evidence. Specifically, Mother points to Father’s conduct: (1) Father’s past use of marijuana; (2) Father’s use of chewing tobacco; (3) Father’s viewing of pornography; and (4) Father’s physical abuse of Mother.

While Father used marijuana before and during the marriage, Father also testified that he had not used marijuana since the summer before the trial. Mother cites In re Mamage of Ryterski, 655 S.W.2d 102 (Mo.App.1983), for the proposition that evidence of marijuana use by one parent establishes that the grant of child custody to the other (non-using) parent would be in the best interest of the child. However, Mother misunderstands Ryterski, which held that evidence of marijuana use was substantial evidence for the trial court to award custody to the non-using parent. Id. at 105. This is distinguishable from Mother’s contention here that evidence of marijuana use by one parent automatically requires the trial court to award custody to the other parent. Instead, it is a factor that can be considered by the trial court and weighed against other factors to determine the custodial arrangement that would be in the best interest of the child.

Mother also points to domestic abuse committed by Father against her as proof that it would not be in the child’s best interest for primary custody to be awarded to Father. The trial court made a finding that Father hit Mother once and that no instances of abuse occurred before or after this incident. Although domestic violence is an important factor to consider, there is no presumption that child custody should be awarded to the non-abusive parent. Gant v. Gant, 923 S.W.2d 527, 530 (Mo.App.1996). Again, the evidence of domestic abuse is “simply a factor to be weighed by the trial court with all the other relevant factors found by the court in making its award of physical custody.” Loumiet v. Loumiet, 103 S.W.3d 332, 341 (Mo.App.2003).

Likewise, Father’s use of chewing tobacco and viewing of pornography can be [904]*904considered by the trial court when it makes its finding but is not determinative. Furthermore, Mother simply makes these two assertions without stating how Father’s conduct here is harmful to the child or how it affects the child’s best interest. There is no evidence that the child has been exposed to or has access to Father’s pornography, or that father reviewing pornography affected father’s conduct, his relationship with his daughter, his daughter’s environment, or otherwise jeopardized his daughter; nor was evidence presented that the child ever used Father’s tobacco or been exposed to the residue left after Father has chewed the tobacco.

On the other hand, there is sufficient evidence to support the trial court’s determination. In examining the factors enumerated by Section 452.375.2,1 the trial court made specific findings that factors (2), (3), and (5) were in Father’s favor. Regarding factor (2), the trial court stated:

The father has addressed the needs of the child for frequent contact with the mother and mother’s family. The mother did not have a separate bedroom for the child. The father has the ability to perform as father for the needs of the child. The mother, on the other hand, has left the minor with the father for periods of time when she volunteered for overseas military service.

Several witnesses testified that Father was a good parent. One witness described Father as “Mr. Mom.” When asked what she meant, the witness indicated that “—he cares—he cares for [the child], he bathes her, he feeds her, you know, he’s her livelihood. I mean he does everything for her.” The witness also testified that Father performed most of the household duties, including cleaning and cooking.

Mother even conceded at trial that Father was a good parent. Mother, on the other hand, has not maintained a stable residence and has moved several times since the divorce petition was filed.2 Also weighing against Mother is the fact that she did not have a bedroom prepared for the child had she been granted custody. [905]*905Because there is sufficient evidence to support the trial court’s determination,3

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131 S.W.3d 901, 2004 Mo. App. LEXIS 586, 2004 WL 884949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooley-v-cooley-moctapp-2004.