Ljs Ex Rel. Ach v. Frs

247 S.W.3d 921
Procedural entryThis page is a short order in Ljs Ex Rel. Ach v. Frs. Read the opinion of the Court — 2008 Mo. App. LEXIS 400
Missouri Court of Appeals·Decided March 26, 2008·No. 28479·Published

Opinion

247 S.W.3d 921 (2008)

In re the Matter of L.J.S., by A.C.H., as next friend, and A.C.H., individually, Petitioner-Respondent,
v.
F.R.S., Respondent-Appellant.

No. 28479.

Missouri Court of Appeals, Southern District, Division Two.

March 26, 2008.

*923 Susan S. Jensen, Springfield, for Appellant.

Luther H. Kemp, Rogersville, for Respondent.

Marion A. Adams, Springfield, for Juvenile.

NANCY STEFFEN RAHMEYER, Judge.

On May 2, 2005, Anthony Holt ("Father") filed an action to determine paternity of child, L.J.S., born on September 1, 2002, against Faith Simmons ("Mother"). At the January 26, 2007 trial, the court heard evidence and made determinations on the issues of legal and physical custody. Father's paternity was not contested. The trial court entered a judgment on April 9, 2007, which granted joint legal custody of the minor child to Mother and Father, *924 indicated the address of Mother shall be used for mailing and educational purposes for the child, ordered Father to pay $423 per month in child support, and granted joint physical custody with visitation[1] for Father on Tuesday overnight, alternate weekends, alternate holidays, and several weeks in the summer.

In three points, Mother argues that (1) the trial court erred in ordering joint legal custody because it was not supported by substantial evidence, (2) the trial court erred in ordering joint physical custody with unsupervised contact because the weight of the evidence indicated that supervised visitation was in the child's best interest, and (3) the trial court erred in refusing to award Mother a judgment of $3,768 in retroactive child support. This Court finds that the order for joint legal custody and joint physical custody with unsupervised contact was supported by the evidence and we find no abuse of discretion in the trial court's decision not to award the retroactive child support in the amount of $3,768.

Background

When L.J.S. was born, Mother and Father were approximately eighteen years old. Mother and Father had a relationship at the time of L.J.S.' birth and Father was present at the hospital when L.J.S. was born. Father is listed on L.J.S.' birth certificate and neither party contested paternity at trial. Shortly after L.J.S. was born, Father joined the military and Mother and Father ended their relationship. Prior to the relationship with Mother and Father ending, Father had regular visits with L.J.S. These visits continued after the parties ended their relationship until Father left for basic training in August of 2003. Father was in basic training until December of 2003; he was then sent to Korea in January of 2004 for one year; and when he returned to the United States he was based in Kentucky until August of 2006. During that time Father received several short periods of leave. The parties attempted to make plans for visitation when it was possible. Father had visitation with L.J.S. between five and eight times while he was in the Army, and had several additional visits after being discharged from active duty in August of 2006. In May of 2005, Father filed a petition to determine paternity against Mother. The trial was held in January 2007 after Mother, Father, and L.J.S. were evaluated by a court-appointed therapist. This appeal arises from the April 9, 2007 Judgment of that court.

Standard of Review

Mother's three points on appeal challenge the trial court's determinations regarding legal custody, physical custody with unsupervised visitation, and retroactive child support payments. Our review of this judgment is the same as that in any court-tried case; we must affirm the trial court's determination unless it is not supported *925 by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Abbott v. Perez, 140 S.W.3d 283, 290 (Mo. App. E.D.2004). "Substantial evidence is competent evidence from which the trial court could reasonably decide the case." Bauer v. Bauer, 38 S.W.3d 449, 455 (Mo. App. W.D.2001). We defer to the trial court's determinations regarding the credibility of witnesses. Patterson v. Patterson, 207 S.W.3d 179, 182 (Mo.App. S.D. 2006). In custody and visitation matters, we give even greater deference to the determinations of a trial court than we do in other civil cases. McCubbin v. Taylor, 5 S.W.3d 202, 206 (Mo.App. W.D.1999). The trial court has broad discretion in these matters and we presume that the court awarded custody in accordance with the child's best interest. Malawey v. Malawey, 137 S.W.3d 518, 522 (Mo.App. E.D. 2004). The decision of the trial court will be upheld unless we are firmly convinced that the welfare and best interests of the child require otherwise. Id.

Joint Legal Custody

The welfare of the child is the primary consideration in making custody orders. McCauley v. Schenkel, 977 S.W.2d 45, 50 (Mo.App. E.D.1998). The trial court's initial child custody determination must also be made after consideration of all the relevant factors, including eight specific statutory factors. See section 452.375.2(1)-(8).[2] The trial court is not, however, required "to do a complete `laundry list' of the statutory factors" under section 452.375.2(1)-(8). Foeste v. Foeste, 122 S.W.3d 698, 701 (Mo.App. E.D.2003). Instead, it must only address in detail those factors that it considered particularly relevant to its custody determination. Id.; Speer v. Colon, 155 S.W.3d 60, 62 (Mo. banc 2005). The decision should also be based on the public policy stated in section 452.375.4. Dunkle v. Dunkle, 158 S.W.3d 823, 833 n. 14 (Mo.App. E.D.2005).[3] "Imperative to the best interests of the child in a joint custody arrangement are `[t]he commonality of beliefs concerning parental decisions and the ability of parents to cooperate and function as a parental unit.'" Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991) (quoting Massman v. Massman, 749 S.W.2d 717, 720 (Mo.App. E.D. 1988)). If the parties are unable to communicate or cooperate and cannot make shared decisions concerning their children's welfare, joint legal custody is inappropriate. McCauley, 977 S.W.2d at 50.

Here, the trial court determined that placing L.J.S. in the joint legal custody of her parents was in the best interest of the child and specifically addressed that one of the most significant factors it considered was the likelihood of the custodial parent, Mother, to facilitate a meaningful relationship with the non-custodial parent. The court noted that it had concerns with both parents.

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247 S.W.3d 921 (Missouri Court of Appeals, 2008)