In re the Marriage of Duvall

67 S.W.3d 736, 2002 Mo. App. LEXIS 268, 2002 WL 214947
CourtMissouri Court of Appeals
DecidedFebruary 13, 2002
DocketNo. ED 78818
StatusPublished
Cited by4 cases

This text of 67 S.W.3d 736 (In re the Marriage of Duvall) 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 the Marriage of Duvall, 67 S.W.3d 736, 2002 Mo. App. LEXIS 268, 2002 WL 214947 (Mo. Ct. App. 2002).

Opinion

LAWRENCE G. CRAHAN, Judge.

Victoria Duvall (“Wife”) appeals the judgment dissolving her marriage to Robert Duvall (“Husband”). We affirm in part and reverse and remand in part.

We will affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.1976). We defer to the trial court’s determinations of credibility, viewing the evidence and permissible inferences therefrom in the light most favorable to the decree, disregarding all contrary evidence and inferences. In re Marriage of Medlock, 990 S.W.2d 186, 187 (Mo.App.1999).

Husband and Wife met in 1985 and began living together shortly thereafter at her apartment in Festus. Wife had two children from a previous marriage. Husband owned a home on Woodland Drive in Festus. Husband, Wife and her children moved to his home in March 1987. Husband and Wife were married in December 1988 and their son Jordan was born in July 1990. Wife’s name was never put on the deed to the house.

In late 1994, Husband and Wife sold the home on Woodland Drive. They received $64,649 from the house and put $63,321 into the construction of the marital home on Melvin Drive. The home on Melvin Drive was worth approximately $160,000 and Husband and Wife owed $66,500 on it. Both Husband and Wife’s names were put on the deed to the house. The family moved there in April 1995.

In June 1996, Wife filed her own petition for divorce, obtained an ex parte order of protection, and had Husband put out of the marital home. Due to Wife’s allegations of physical abuse, a guardian ad litem (“GAL”) was appointed for Jordan. Husband moved to his parent’s home upon being removed from the home on Melvin Drive and lived with them up to the time of trial. Husband continued to make the mortgage payments, as well as the cable, electric and gas payments.

There were considerable arguments and problems over Husband’s visitation with Jordan. Husband was allowed visitation supervised by Wife’s family in October 1996. Beginning in December 1996, Husband began exercising unsupervised temporary custody on alternate weekends. Husband regularly requested additional time with Jordan, but was put off by Wife. The parties frequently had difficulties and confrontations concerning the transfer of custody of Jordan.

At the conclusion of the trial, the court requested that the GAL give his recommendation as to custody. Wife’s trial counsel did not object to this and the GAL recommended joint physical custody as both parties lived in the same school district and were within a bicycle ride of each other’s houses. The court entered a shared custody order whereby Husband and Wife were to alternate physical custody of Jordan every month with specified periods of visitation when Jordan was with the other parent.

Wife alleged in her motion for new trial that the judgment was void because she had consulted Husband’s trial attorney, Marsha Brady (“Brady”), in June 1997 about representing her at trial. Brady was not representing Husband at the time and she declined to represent Wife for reasons unrelated to the case. Brady later entered her appearance in the case as Husband’s attorney. She had no recollection of any conversation with Wife, although she located her notes of their conversation. Wife informed her trial counsel of her interview with Brady as soon as she entered the case in November 1999, but [739]*739counsel never filed a motion to disqualify. Wife was aware that two other attorneys had been disqualified from representing Husband because of previous contacts she had with them. The court overruled the motion to disqualify counsel and did not set the decree aside.

Wife’s first two contentions on appeal will be considered together. Wife’s first claim is that the trial court erred in allowing the GAL to give an unsworn recommendation because it was based on his own investigation which included hearsay from others, and it was just his opinion that a joint physical custody arrangement would be in the Jordan’s best interest. Her second claim is that the trial court erred in entering a shared custody order for the reason that the only evidence to support it was the inadmissible opinion of the GAL and there was no other substantial evidence to support it.

“It is imperative that the guardian ad litem investigate and have input on the perspective of the child’s best interest and this be presented to the trial judge.” In the Interest of J.L.H., 647 S.W.2d 852, 861 (Mo.App.1983). Wife admits that she did not object to the GAL’s recommendation during trial and therefore, the alleged error is not preserved. However, she requests plain error review. We may consider plain error affecting substantial rights if we find that manifest injustice or a miscarriage of justice has occurred. Rule 84.13(c).

Wife relies on Dickerson v. Dickerson, 55 S.W.3d 867 (Mo.App.2001), for the proposition that the trial court committed plain error. In Dickerson, during the trial, medical professionals recommended a joint custody arrangement with the wife as the primary residential custodian. Id. at 874. However, at the time the GAL made her recommendation, she reported to the court that she had recently spoken with the medical professionals and that at least two of them now agreed with her final recommendation that the husband should serve as the children’s primary residential custodian. Id. at 875. The wife objected to the GAL referring to her out-of-court discussions with the medical professionals. Id. at 874. This was the only time during the trial that any recommendation was made favoring primary placement of the children with the husband. Id. at 875. The court held:

We find that the trial court erred in allowing the Guardian Ad Litem to give unsworn testimony and recommendations that were based on inadmissible hearsay medical opinions. The Guardian’s statements were not merely a summation of evidence, but rather introduced new facts which the court could not consider without applying the procedural and evidentiary rules to insure competency and reliability. Since the Guardian was neither sworn nor subject to cross-examination, her statements did not constitute evidence and should have had no bearing on the custody decision.

Id.

In the instant case, the GAL stated that the evidence showed that having one person with primary custody had not worked well because the parties had frequent confrontations over visitation.1 The GAL further observed that joint physical custody might be a good alternative because both parties lived close together in [740]*740the same school district and that Jordan genuinely loved them both and wanted them both in his life. Finally, the GAL acknowledged that it would be impossible to get around the temporary visitation issue but that Jordan should have a fairly permanent place where he would be for more than a few weeks at a time. We conclude that at no time did the GAL refer to inadmissible testimony or refer to any evidence not received at trial, as occurred in Dickerson. Therefore, the trial court did not commit plain error in permitting the GAL to give his recommendation.

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Bluebook (online)
67 S.W.3d 736, 2002 Mo. App. LEXIS 268, 2002 WL 214947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-duvall-moctapp-2002.