In Re Marriage of Barton

158 S.W.3d 879, 2005 Mo. App. LEXIS 500, 2005 WL 729543
CourtMissouri Court of Appeals
DecidedMarch 31, 2005
Docket25773, 25783
StatusPublished
Cited by5 cases

This text of 158 S.W.3d 879 (In Re Marriage of Barton) 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
In Re Marriage of Barton, 158 S.W.3d 879, 2005 Mo. App. LEXIS 500, 2005 WL 729543 (Mo. Ct. App. 2005).

Opinions

JAMES K. PREWITT, Judge.

The trial court dissolved the marriage of Danny Keith Barton (“Father”) and Kay Lynne Barton (“Mother”) and granted the parties joint legal custody of their two children, with Father awarded primary physical custody of the oldest son, Broc, born August 27, 1986, and Mother awarded primary physical custody of the youngest son, Blaz, born September 18, 1993. Father appeals the trial court’s decision to split custody of the two children and the resulting “restrictive” visitation. Mother cross-appeals with four points relied on, one of which contends that the trial court erred in awarding Father principal custody of Broc. Her other issues are related to the property distribution and the trial court’s alleged failure to order sanctions for Father’s discovery violations.

Facts

Father and Mother were married on November 26, 1984, in Oregon County, Missouri. Broc and Blaz were the only children born of the marriage. The couple separated in January, 2001, and Father filed his petition for dissolution on January 24, 2001. Mother filed her answer and counter-petition on February 5, 2001.

On February 2, 2001, the trial court entered an order enjoining the parties from selling, transferring, disposing, destroying, or otherwise encumbering any marital assets. The order specifically directed that Mother not attempt to access the contents of any safety deposit boxes held in her name until an inventory of the contents could take place. Inventory orders for two separate safety deposit boxes were entered March 20, 2001, and April 30, 2001, respectively.

On August 24, 2001, the trial court entered a temporary custody order, awarding Father primary custody of Blaz and Mother primary custody of Broc on a Sunday-through-Friday schedule. The order also specified that Father and Mother would have custody of both children on alternating weekends. The temporary order was modified on November 30, 2001, to allow Mother additional time during the holidays with Blaz.

The hearing on the dissolution was held during October, November, and December of 2002. Following the denial of Father’s motion to re-open the case for further evidence, the trial court issued its judgment for dissolution of marriage on June 16, 2003. Father and Mother were granted joint legal custody of their two children, with Father awarded primary physical custody of Broc and Mother awarded primary physical custody of Blaz. The judgment also included a child visitation schedule (detailed through 2011) for the dates “[t]he non-custodial parent shall have visitation with the child that is in the custody of the other parent[.]” The trial court found the annual income of Father and Mother to be “essentially equal,” and neither party was awarded child support (or maintenance), [883]*883and each was required to pay one-half of the children’s medical insurance.

Throughout the course of the proceedings, each party filed various motions alleging discovery violations. The judgment made reference to rulings on three such motions that were pending. The first motion was a motion for sanctions filed by Mother on December 18, 2001, in which she complained that Father had not fully complied with all discovery requests. That motion was sustained on June 7, 2002, and the order provided that Father’s pleadings were to be stricken if full compliance was not achieved in twenty days. Although full compliance did not occur within twenty days, the trial court set aside its order for sanctions on October 24, 2002, which, according to the trial court, left Mother’s original motion for sanctions without final resolution. Based on the proceedings, the trial court determined that Father purposely failed to comply with Mother’s discovery requests. Therefore, the court sustained Mother’s motion, but decided it would not strike Father’s pleadings or enter judgment by default. Rather, the court indicated “an adverse evidentiary inference” would be assigned to Father in terms of the property and debt distribution.

The second and third motions referenced in the judgment were both filed by Father on September 9, 2002. On that date, Father filed a motion for sanctions and a motion for contempt, both of which made the same allegations with regard to alleged discovery violations by Mother. The trial court denied both motions, finding them to be without merit. According to the court, Mother’s “discovery responses were sent to [Father’s] counsel within a reasonable time and since then she has made a practice of updating her discovery response to keep the information requested as current as possible.”

Regarding the property distribution, Father was awarded two of three tracts of marital real estate, and Mother was awarded one tract, which was the marital home. Combining the real estate and personal property, but subtracting any debt assigned, Father was awarded assets of approximately $201,063. Mother, using similar calculations, was awarded assets valued at approximately $287,279, of which $181,100 was non-marital property. The value of Mother’s marital property was $156,179.

This appeal follows. Additional facts necessary to the disposition of the points raised by Father and Mother will be presented in the discussion below.

Discussion

Father raises two points, and Mother raises four points in her cross-appeal. We will address them in the order presented. Father’s Point I — No exceptional circumstances to justify split custody of the children

In his first point, Father contends that the trial court erred in splitting custody of the children by placing one child (Broc) with Father and the other child (Blaz) with Mother. According to Father, there were no exceptional circumstances to justify such a custody arrangement.

In its judgment, the trial court noted the following:

Each party requests that he or she be awarded the primary physical custody of the children. The Court must, therefore, according to Section 452.375.6 RSMo 2000, consider and weigh the nonexclusive factors set forth therein:
(1) Each parent believes they should have primary physical custody of the children, but because it is not possible to accommodate the wishes of both, the Court must decide which [884]*884parent is best suited to raise the children. The Court, after carefully weighing the evidence, determines that [Mother] should have custody of [Blaz] and [Father] should have custody of [Broc] subject to the Child Visitation Schedule attached, which schedule is incorporated herein by reference.
(2) Considering the close proximity of the physical addresses of the parties and the willingness of the parents to participate in assuring that the children will have meaningful contact with each parent and the other sibling the order of the Court is appropriate.
(3) There have been episodes of marital conflict of varying nature during the marriage which conduct is condoned by the parties by the passage of time.

Appellate courts afford greater deference to a trial court’s determination of child custody than in any other type of case. Tracy v. Tracy, 961 S.W.2d 855, 859 (Mo.App.1998). We will not interfere with the trial court’s determination unless a child’s welfare compels us to do so, and we may not substitute our judgment for that of the trial court so long as credible evidence supports the trial court’s award.

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In Re Marriage of Barton
158 S.W.3d 879 (Missouri Court of Appeals, 2005)

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Bluebook (online)
158 S.W.3d 879, 2005 Mo. App. LEXIS 500, 2005 WL 729543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-barton-moctapp-2005.