In Re Marriage of Johnson

865 S.W.2d 412, 1993 Mo. App. LEXIS 1789, 1993 WL 475477
Missouri Court of Appeals·Decided November 16, 1993·No. 18589·Published·Cited by 26 cases

Opinion

SHRUM, Judge.

Sherri Ranay Johnson brought this dissolution of marriage action against Calvin Lyn Johnson. Sherri 1 appeals from the portions of the decree by which the court awarded physical and legal custody of the parties’ one child. We affirm the physical custody order. We reverse the joint legal custody order and remand to the trial court.

PROCEDURAL SUMMARY

On June 29,1992, Sherri filed a petition for dissolution of marriage in which she requested “the care, custody and control” of the child be awarded to her and that Calvin be granted “reasonable visitation privileges.” On that same date Sherri filed a separate motion in which she requested “temporary custody” of the child. That motion, apparently never presented to the trial court, was not ruled on. In his answer and counter *414 claim, Calvin asked the court to award him “Ml legal and physical custody” of the child.

The court heard testimony and received other evidence on September 23, 1992. The transcript of trial testimony exceeds 325 pages and records the testimony of Sherri, Calvin, the maternal grandparents, the paternal grandmother, five other persons called as witnesses by Sherri and eleven others called by Calvin. As we discuss Sherri’s points on appeal, we present a summary of relevant testimony.

The trial court decree provides in pertinent part:

2. The parties are hereby awarded joint legal custody of their child....
3. [Calvin] hereby is awarded primary physical custody of [the child].
4. [Sherri] hereby is awarded visitation with said child every weekend EXCEPT every third weekend, commencing at 6:30 p.m. on Friday and ending at 6:30 p.m. on Sunday.
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6. The parties shall share information with one another concerning the health, education, and welfare of them child, and upon the child entering school, both parents shall have access to all school records and reports. Either party shall have the authority to provide medical, dental, and other health care reasonably necessary for the welfare of the child, and each parent shall have access to all medical, dental, and health care records, reports and tests.
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9. The parties are hereby ordered to share the baby equipment as needed to facilitate visitation.

Sherri presents five points on appeal. In four of them she raises various challenges to the court’s physical and legal custody orders. In her fifth point relied on, she complains that the trial court erroneously limited her cross-examination of one of Calvin’s witnesses.

STANDARDS OF REVIEW

Applicable standards of review are summarized as follows in In re Marriage of Barnes, 855 S.W.2d 451 (Mo.App.1993):

Our review of a dissolution decree is governed by Rule 73.01(c) and the principles enunciated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Mistler v. Mistler, 816 S.W.2d 241, 245[1] (Mo.App.1991). Thus we must affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32[1],
When determining the sufficiency of the evidence, we accept as true the evidence and inferences from the evidence that are favorable to the trial court’s decree and disregard contrary evidence. T.B.G. v. C.A.G., 772 S.W.2d 653, 654[2] (Mo. banc 1989). All fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached. Rule 73.01(a)(2); In Re Marriage of Dempster, 809 S.W.2d 450, 456[4] (Mo.App.1991).
The phrase “weight of the evidence” means its weight in probative value, not the quantity or amount of evidence. The weight of the evidence is not determined by mathematics; it depends on its effect in inducing belief. Johnson v. Gregg, 807 S.W.2d 680, 685[1] (Mo.App.1991). Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is against the weight of the evidence with caution and with a firm belief that the decree or judgment is wrong. Murphy, 536 S.W.2d at 32[2],
We give due regard to the trial court’s opportunity to judge the credibility of the witnesses. Rule 73.01(c)(2); T.B.G., 772 S.W.2d at 654. The trial judge may believe or disbelieve all, part, or none of the testimony of any witness, Id. at 654[1], and the court may disbelieve testimony even when uncontradicted. In Re Marriage of Lewis, 808 S.W.2d at 919, 922[3] (Mo.App.1991).
We defer to the trial court’s findings on custody matters unless we are convinced the best interests of the child require a different disposition. O.J.G. v. G.W.G., 770 S.W.2d 372, 375[2] (Mo.App.), cert. de *415 nied, 493 U.S. 992, 110 S.Ct. 540 [107 L.Ed.2d 538], (1989); Heermance v. Heermance, 706 S.W.2d 548, 551[5] (Mo.App.1986).

855 S.W.2d at 454[l-6],

DISCUSSION AND DECISION

Physical Custody

We first consider Sherri’s challenge to the physical custody arrangements. Without designating it as such, the trial court awarded the parties “joint physical custody” as that concept is defined in § 452.375. 2 Although the child is to reside with Calvin and be under his care and supervision most of the time, the decree specifies in writing significant periods of time during which the child is to reside with Sherri or be under her care and supervision. Thus, despite the trial court’s use of the descriptive terms primary physical custody and visitation, we characterize the physical custody arrangement as one of joint custody. Nix v. Nix, 862 S.W.2d 948, 951 (Mo.App.S.D.1993). See Ibrahim v. Ibrahim, 825 S.W.2d 391, 396[3] (Mo.App.1992). 3

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In Re Marriage of Johnson, 865 S.W.2d 412, 1993 Mo. App. LEXIS 1789, 1993 WL 475477 (Mo. Ct. App. 1993).

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