Farley v. Farley

51 S.W.3d 159, 2001 Mo. App. LEXIS 815, 2001 WL 498994
CourtMissouri Court of Appeals
DecidedMay 11, 2001
Docket23376
StatusPublished
Cited by27 cases

This text of 51 S.W.3d 159 (Farley v. Farley) 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
Farley v. Farley, 51 S.W.3d 159, 2001 Mo. App. LEXIS 815, 2001 WL 498994 (Mo. Ct. App. 2001).

Opinions

BARNEY, Chief Judge.

John Farley (“Husband”) appeals the judgment of the Circuit Court of Butler County dissolving his 21 year marriage to Rebecca Farley (‘Wife”). In pertinent part, the judgment gave Husband and Wife joint legal and physical custody of their son, Dustin Farley, born April 27, 1988, (“Dusty”). Wife, however, was designated the primary care giver and Husband was ordered to pay the sum of $126.00 a month as child support. In its division of the marital property, the circuit court awarded Wife properties worth $114,092.00 and Husband was awarded properties worth $97,641.00, including $30,000.00 that Wife was ordered to pay Husband. No maintenance was awarded either party.

Husband now raises four points of trial court error challenging the trial court’s grant of primary physical custody of Dusty to Wife; the valuation the trial court placed on the parties’ personal properties; the division of the marital property; and the denial of his request to amend his pleadings to preserve a claim for “future maintenance.”

“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 [163]*163evidence, 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. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In our review of the record on appeal, we accept as true the evidence and inferences therefrom that are favorable to the trial court’s judgment and we 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.

In his first point, Husband claims he should have been awarded primary physical custody of Dusty because the trial court failed to consider the relevant factors listed in section 452.375.2 in making its grant of primary physical custody of Dusty to Wife.1

“An appellate court will not disturb a trial court’s custody award unless it is manifestly erroneous and the welfare of the child requires some disposition other than that made by the trial court.” Id. “We afford greater deference to the trial court’s decision in child custody determinations than in other cases.” Id. “An appellate court may not substitute its judgment for that of the trial court so long as there is credible evidence upon which the trial court can formulate its belief.” Id. “When determining custody, the overriding consideration is the best interests of the child.” Turner, 5 S.W.3d at 609; § 452.375.2. Under the foregoing subsection, the trial court is to “consider all relevant factors” including those specifically delineated. Turner, 5 S.W.3d at 609. “The appellate court must presume the trial court awarded custody in the child’s best interests, due to the trial court’s superior position in judging the credibility of witnesses, along with their character, sincerity, and other intangibles not completely revealed by the record.” Id.

In determining the best interests of a child, the court may consider the conduct of the parties. Tracy v. Tracy, 961 S.W.2d 855, 859 (Mo.App.1998). “Past and present activities may be a rehable guide to the priorities of the parent.” Id. The record shows prior to separation, while working fuh time herself, Wife performed ah the traditional household duties, including taking care of all of Dusty’s physical needs. Wife also attended to ah of Dusty’s medical needs, including his problems involving attention deficit disorder and chronic sinusitis. On the other hand, there is evidence in the record showing that Husband’s interest and participation with Dusty occurred only after the separation of the parties. See Rinehart v. Rinehart, 877 S.W.2d 205, 209 (Mo.App.1994); In Re Mamage of Turner, 5 S.W.3d at 611. Additionally, the record shows that prior to separation Husband was “very distant from [Dusty],” and reflects that Husband paid little attention to Dusty. Neither did Husband involve himself with the minor’s outside activities. See Turner, 5 S.W.3d at 611.

We also observe that in making its custody determination a trial court must give consideration to the conduct a parent may inspire by example as well as what conduct of a child a parent may foster by condonation. Tracy, 961 S.W.2d at 859. In the instant matter, the record reflects that at least on one occasion Husband bragged to his son about how he was able to evade the law while engaging in illegal activities such as stealing. Furthermore, Husband appeared to speak approvingly of certain individuals involved in other illegal activities such as those relating to the ille[164]*164gal burning of a vehicle in such a manner as to avoid detection.

In our review of the record, including testimony given during the course of an after trial motion in which Dusty, again, was questioned by the trial court and the attorneys, we observe that Dusty expressed resentment of his mother regarding her remarriage. He also expressed a dislike for her new husband. Indeed, during the course of his second testimony, Dusty requested the trial court to allow him to remain with his father. Dusty also charged that some of his mother’s relatives had physically abused him. Despite Dusty’s testimony, the trial court granted Wife primary custody over the minor. It is clear that the trial court found Dusty’s allegations of abuse less than credible. The trial court is free to believe or disbelieve all, part or none of the testimony of any witness, including that of a child. Turner, 5 S.W.3d at 609. Furthermore, while Dusty expressed a preference to remain with his father, we note that a child’s preference as to which parent he or she wishes to remain with is but one of the relevant factors that the trial court is required to consider. In Re Marriage of Bigelow, 959 S.W.2d 897, 899 (Mo.App.1997). “[T]he child’s preference, while important, is not dispositive.” Id.; § 452.375.2(8). While we acknowledge that Husband’s account of his own and Wife’s behavior toward the child during their relationship may differ, as previously stated, the trial court was not obliged to believe his testimony or to accept his interpretation of the events. Bigelow, 959 S.W.2d at 899. Here, we do not have a firm belief that the decree of the trial court with regard to child custody is wrong. It is supported by substantial evidence and is not against the weight of the evidence. No abuse of discretion has been shown by the trial court in its award of the primary physical custody of the child to Wife. Id.; Tracy, 961 S.W.2d at 863. Point denied.

In his second point, Husband complains of the trial court’s valuation placed on the marital property distributed to the parties. He asserts that these values were derived from Wife’s Exhibit “C” and were not supported by competent evidence. He alleges that the value of the properties awarded to him were “over stated,” whereas the properties awarded Wife were “understated.” This point also lacks merit.

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Bluebook (online)
51 S.W.3d 159, 2001 Mo. App. LEXIS 815, 2001 WL 498994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farley-v-farley-moctapp-2001.