Scot A. Fowler v. Melissa Murphy Fowler

504 S.W.3d 790, 2016 Mo. App. LEXIS 881
CourtMissouri Court of Appeals
DecidedSeptember 6, 2016
DocketED103269
StatusPublished
Cited by11 cases

This text of 504 S.W.3d 790 (Scot A. Fowler v. Melissa Murphy Fowler) 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
Scot A. Fowler v. Melissa Murphy Fowler, 504 S.W.3d 790, 2016 Mo. App. LEXIS 881 (Mo. Ct. App. 2016).

Opinion

Gary M. Gaertner, Jr., Judge

Introduction

Melissa Murphy Fowler (Mother) appeals the judgment of the trial court granting Scot A. Fowler’s (Father) action for modification of child support. Mother asserts errors in the trial court’s grant of unsupervised visitation, modification of legal custody, reliance on stale evidence in its custody determination, award of the dependent child tax exemption to both parents in alternating years, failure to attach a Form 14 to the judgment, and grant of attorney’s fees. We affirm in part and reverse in part, and we remand for the limited purpose of recalculating child support.

Background

The parties married in 1998 and had one child, C.F., born in 2000, The marriage was dissolved in 2002. The dissolution judgment granted Mother sole legal and primary physical custody of C.F., ordered Father to pay $989 per month in child support, and awarded Father visitation and temporary custody. In 2003, Mother filed a motion to modify custody, alleging that Father had sexually abused C.F. 1 In 2005, Father consented to have his visitation with C.F. supervised at all times by Laura Milsk (Milsk), Father’s then-girlfriend and current wife, or Marilyn Fowler, Father’s mother. In accordance with the parties’ agreement, the court entered the consent judgment without a trial modifying the dissolution judgment to grant Mother sole legal and physical custody. The modification judgment stated that it “approved and ordered” the attached parenting plan, which contained the parties’ agreement for supervised custody; however, the modification judgment and its exhibits contained no reference to Father’s alleged abuse. The modification judgment provided that although Mother had sole legal custody, she should confer with Father before making final decisions regarding schools and extra-curricular activities, and before making final decisions regarding non-emergency medical treatment. As well, the modification judgment stated that each parent shall be entitled to records from the other or a third party pertaining to C.F.’s medical and school records.

*795 In 2011, Father filed a motion to modify, seeking sole legal custody 2 and unsupervised custody. Mother filed a motion to dismiss on the grounds that Father had not alleged or proved he had received treatment and had been rehabilitated in compliance with Section 452.400.2(3), RSMo. (2000). 3 The trial court held a trial on the Section 452.400.2(3) issue, at which the following evidence was adduced.

Father testified that he had never sexually abused C.F., and he stated, for support, that although there had been eleven hotline calls made against him during the pendency of Mother’s 2003 motion to modify, none of the allegations of abuse were ever substantiated, and although the police investigated the allegations twice, he was never arrested or charged. Nevertheless, he stated that he settled Mother’s 2003 motion to modify by agreeing to supervised visitation, because he could not afford to continue the legal battle and also to protect himself from continuing allegations of abuse. Since 2005, he had received mental-health treatment from a variety of therapists about the stress and anger stemming from Mother’s allegations against him, and he believed he had been rehabilitated from those emotions. Dr. Daniel Lev-in, a clinical psychologist specializing in evaluations of cases of child abuse, performed an evaluation of Father in 2013. Dr. Levin opined that “one cannot be rehabilitated from something that one hasn’t done,” and he concluded that Father could not be—and did not need to be—rehabilitated, because Father had done nothing from which to be rehabilitated.

After the trial, the trial court found that when a judgment imposes supervised visitation following an allegation of abuse of the child but the allegation is not supported by a trial court finding or an admission by the parent of abuse, a trial court may modify the judgment without proof of treatment and rehabilitation of the parent. The trial court then in July of 2014 held a trial on the remaining issues, at which the following evidence was adduced, as relevant to the issues raised on appeal, viewed in a light most favorable to the judgment. 4

Dr. Maureen Taylor, a counselor who consults with Children’s Home Society, testified that she met with C.F., then age 3, in 2003-2004 and concluded the child had been sexually abused by Father. Dr. Catherine Hasler, a clinical psychologist and C.F.’s current therapist, testified that C.F. believes she was sexually abused by Father.

Dr. Margaret Rissman, a child psychologist, testified that she treated C.F. from 2005 to 2008 when she was five to eight years old, as well as Mother and Father. Dr. Rissman testified to the following. C.F. was afraid of Mother’s anger, especially about breaking the rules Mother had imposed on Father’s visitation, including what clothes to wear, what children C.F. could play with, what types of movies to see, and a ban on swimming in Father’s custody. Dr. Rissman was not surprised C.F. believes Father sexually abused her, because she had “lived most of her life in an environment in which her father ha[d] *796 been vilified as a terrible person” by Mother and Mother’s family. Dr. Rissman stated that in her experience Mother was “openly manipulative,” and while truly Mother believed Father had sexually abused C.F., Mother also “needed for [C.F.] to not only have only the merest relationship with her father, but no relationship with her stepmother, who she insisted be called the supervisor and not her stepmother.” Dr. Rissman stated that based on her exposure to the family in therapy, she did not believe Father had sexually abused C.F., and that she could see no need for supervised visitation.

Father testified that Mother has not conferred with him regarding where to send C.F. to school or in which extracurricular activities she would participate. He believed different schools would have been better choices, but Mother overruled his suggestions. Moreover, when C.F. attended St. Mary Magdalen School in 2006, Mother requested that Father not be—and he was not—listed in the school directory. Mother switched C.F. from St. Mary Mag-dalen to St. Clare of Assisi in the middle of the school year without telling Father, and again Father was not listed in that school directory. When Mother enrolled C.F. in Barat Academy for high school, she did not list Father on the enrollment information. When Father requested the contact information for C.F.’s coaches, Mother refused that information, saying Father could get any information' from her. When Father tried to contact the coaches directly for various schedules, he was denied the information. Although Father has requested that Mother provide him with a copy of C.F.’s insurance card, Mother has refused. Father stated that if he received sole legal custody, he would confer with Mother before making decisions and would keep C.F. in the school where she was currently enrolled for the remainder of the school year, but after that, it would depend on his finances. As well, Father had no intention to change C.F.’s extracurricular activities.

Mother testified that she did consult with Father on her school choices for C.F. Mother denied telling C.F.

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Cite This Page — Counsel Stack

Bluebook (online)
504 S.W.3d 790, 2016 Mo. App. LEXIS 881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scot-a-fowler-v-melissa-murphy-fowler-moctapp-2016.