Rader v. Anderson

196 S.W.3d 677, 2006 Mo. App. LEXIS 1145, 2006 WL 2089226
CourtMissouri Court of Appeals
DecidedJuly 28, 2006
DocketNo. 27259
StatusPublished

This text of 196 S.W.3d 677 (Rader v. Anderson) 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
Rader v. Anderson, 196 S.W.3d 677, 2006 Mo. App. LEXIS 1145, 2006 WL 2089226 (Mo. Ct. App. 2006).

Opinion

PHILLIP R. GARRISON, Judge.

This appeal arose from an action brought by George Rader, Jr. (“Father”) for paternity and custody of two minor children, D.L.R. and K.N.R., born during the time he and Brianna R. Anderson (“Mother”) lived together.1 Mother ap[679]*679peals the trial court’s judgment regarding custody.

Mother and Father met in 1999, and shortly thereafter, Mother and her daughter from a previous relationship moved in with Father and his two minor children. When the parties separated in 2004, Father filed the action which is the subject of this appeal. Mother filed her amended answer, which conceded that Father was the natural father of K.N.R. A hearing was held on Father’s petition and the trial court entered its judgment and decree of paternity and custody finding that K.N.R. was the biological child of both Father and Mother, and awarding the parties joint legal and physical custody, as well as providing that KN.R.’s primary residence be with Father with specific periods of visitation to Mother as outlined in the parenting plan.

Mother, filed a motion for new trial and/or motion to set aside the judgment, or in the alternative to enter an amended judgment arguing, inter alia, that the trial court failed to set forth the factors which made its custody arrangement in the best interests of the child as required by Section 452.375.6,2 and that “special findings” must be made if the trial court finds domestic abuse. After a hearing, the trial court entered its amended judgment and decree of paternity and custody to address Section 452.375, while retaining the same custody provisions. Mother now appeals.

In Mother’s lone point she alleges, in four sub-points, that the trial court’s judgment “awarding [Father] primary residential custody”3 was not supported by substantial evidence and was against the weight of the evidence. In sub-point (a), she argues that because there was evidence of domestic violence by Father, the trial court was required to enter specific written findings as to why it was in the child’s best interest for her primary residence to be with Father. In sub-point (b), she contends that Father was unable to appropriately parent the child in that the child was often returned to Mother in an unclean condition. In sub-point (c), she argues that, contrary to the trial court’s finding, there was no evidence that the child would undergo an extreme adjustment in moving from Father’s to Mother’s home. In sub-point (d), she contends that the trial court erroneously found that the other factors in 452.375.24 were a “wash,” [680]*680because the evidence illustrated that Father was unable to effectively parent the child and was unwilling to allow the child frequent, continuing and meaningful contact with Mother.

We will affirm the trial court’s judgment in child custody cases unless it is unsupported by the evidence, is against the weight of the evidence or erroneously declares or applies the law. Sewell-Davis v. Franklin, 174 S.W.3d 58, 59 (Mo.App. W.D.2005). In custody cases the trial court is granted a great deal of discretion and we will only reverse if we are firmly convinced that the welfare of the child requires a different disposition. Id. “In a court-tried case, the trial court is the arbiter of the facts; it is free to accept or reject all, part, or none of the testimony of a witness.” Cunningham v. Cunningham, 143 S.W.3d 647, 653 (Mo.App. E.D.2004). The trial court is also free to disbelieve any testimony, even that which is not contradicted. Id.

With regard to sub-point (a), the trial court’s amended judgment stated, in pertinent part:

[Mother] contends that her testimony regarding an Order of Protection awarded to her against [Father] is grounds for reconsideration or new trial on the issue of custody. Initially, the Court notes that [Mother] did not provide the Court with copies of the file with which to take judicial notice of such a case. Second, [Section] 452.375 discusses history or patterns of domestic violence. Even granting [Mother’s] testimony its widest inferences, which the Court does not, there was absolutely no evidence, save [Mother’s] mention of the Order of Protection matter, that any domestic violence ever occurred, and no evidence that any such violence was directed toward [K.N.R.], The Court finds that [Mother’s] allegations of domestic violence or abuse are unsupported by the evidence.

Mother argues, citing Section 452.375.2(6), that this finding was erroneous because there was evidence of domestic violence and, therefore, the trial court should have found that domestic violence had occurred and entered written findings as to why it found that it was in the child’s best interest for her primary residence to be with Father.5 Section 452.375.2 states in pertinent part:

The Court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:
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(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law.

Mother essentially claims that the trial court ignored or overlooked the evidence [681]*681of domestic violence that was presented in finding that there was no pattern of domestic violence. In her testimony, Mother claimed that Father had choked her once and had slapped her “a few times.” Lorraine Kusior, D.L.R.’s counselor, testified, without objection, that D.L.R. had indicated to her that he witnessed Father strike Mother during an exchange of the children. Mother testified that on one occasion when the parties were exchanging the children, Father “grabbed me by the arm and slung me to the back of the car.” She also testified that following this alleged incident she “got an ex parte,” mandating that future exchanges take place at the Mountain Grove Police Department. Our reading of the entire record reveals that this “ex parte” was the “Order of Protection” that the trial court referred to in its amended judgment.

When faced with evidence of abuse, the trial court is obligated to make a finding as to whether there exists a pattern of domestic violence. See Loumiet v. Loumiet, 103 S.W.3d 332, 341 (Mo.App. W.D.2003); Gant v. Gant, 923 S.W.2d 527, 530 (Mo.App. W.D.1996). More specifically, the written requirements of Section 452.375.2(6), are only triggered after the trial court has found that (1) a pattern of domestic violence has occurred and (2) that granting the abusive parent custody is in the best interest of the child. Loumiet, 103 S.W.3d at 343.

The trial court’s amended judgment indicates that it considered the testimony summarized above, and rejected it.

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Related

Cunningham v. Cunningham
143 S.W.3d 647 (Missouri Court of Appeals, 2004)
Loumiet v. Loumiet
103 S.W.3d 332 (Missouri Court of Appeals, 2003)
Gant v. Gant
923 S.W.2d 527 (Missouri Court of Appeals, 1996)
Sewill-Davis Ex Rel. Davis v. Franklin
174 S.W.3d 58 (Missouri Court of Appeals, 2005)
Couch v. Couch
978 S.W.2d 505 (Missouri Court of Appeals, 1998)

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Bluebook (online)
196 S.W.3d 677, 2006 Mo. App. LEXIS 1145, 2006 WL 2089226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rader-v-anderson-moctapp-2006.