Sole Legal Custody
In a recent case, appealed to and decided by the Missouri Court of Appeals of the Eastern District, from Franklin County, Missouri, the Court of Appeals ruled on an appeal by the husband (in a divorce) who disputed the trial court’s award of retroactive child support, award of attorney fees and the award of sole custody of the minor children to the wife. This chapter of the Kansas City Men’s Family Law Blog will discuss the facts of the case and the rationale of the appeals court in coming to its conclusion.
In divorces and child custody matters, the parent asking for child support can request that the child support be paid retroactive to the date of filing. This means if a divorce is filed and it takes a year to come to a conclusion, a Judge can award child support all the way back to the date the divorce was filed with the court. Because the one party needing support may have to go without child support for the entire time the divorce is making its way through the court system, the law also allows one party to ask for temporary child support while the divorce is going on.
In this particular case the husband doesn’t appear to be the greatest guy. During only one year, he spent over $40,000 on numerous prostitutes. Husband also never purchased Christmas or birthday presents for any of his children.
In this case, the wife was awarded temporary child support during the divorce and the husband was forced to pay child support retroactive to the date the divorce was filed. The husband’s disagreement with the Judge’s ruling is that the court did not deduct the monies he paid in temporary child support from the amount he was ordered to pay retroactively, which clearly is unfair. The Court of Appeals ruled the court’s judgment should be changed to include the amount the husband paid in temporary child support deducted from the retroactive amount of child support he was ordered to pay. The court ordered husband to pay $45,122 in retroactive child support, after giving credit for what he has already paid, he then owed $22,172.
According to the Court of Appeals, “Under Missouri law a party ordered to pay retroactive support is generally entitled to receive a credit for voluntary child support (Eichacker v. Eichacker, 596 S.W.3d 177, 188 (Mo. App. E.D. 2020) “One should not be required to make double payments for child support” Runge vs. Runge, 103 S.W.3d 804, 807 (Mo. App. E.D. 2003). This approach encourages cooperation with temporary orders.”
In the husband’s 2nd point on appeal, he argues that the court should not have awarded the wife attorney fees based on his attorney being late to court. The trial court judge awarded the wife (two thousand, nine hundred and forty dollars) $2940.00 in attorney fees due to husband’s attorney being late to trial causing a substantial delay. Unfortunately for the husband, the Court of Appeals ruled that the actions of an attorney are imputed to the client, and consequently the trial court did not error when awarding wife attorney fees based on husband’s counsel’s tardiness to trial.
Missouri Revised Statute Section 452.355.1 allows a trial court “to award attorney’s fees arising out of a dissolution proceeding ….” Wagner v. Wagner, 542 S.W.3d 334, 343 (Mo. App. E.D. 2017) (internal citations omitted). In an award of attorney’s fees, the trial court can consider “the financial resources of both parties, the merits of the case and the actions of the parties during the pendency of the action." In this case, the trial was scheduled for 9am and the husband’s lawyer did not show up until after noon.
In his final point on appeal, husband contends that the trial court made a mistake by granting mother sole legal custody of the children because there was a lack of evidence to substantiate such a ruling, and it was not in the children’s best interests. Remember Missouri Law dictates joint custody is in the best interests of the child absent evidence to the contrary. The Court of appeals denied this point as well.
According to the Court of appeals the trial court’s record is ripe with evidence to support sole legal custody for the mother. Missouri revised statute allows a trial court to determine the custody arrangement in the best interest of the child by considering eight statutory factors:
(1) The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties;
(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests;
(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
(5) The child's adjustment to the child's home, school, and community. The fact that a parent sends his or her child or children to a home school or FPE school shall not be the sole factor that a court considers in determining custody of such child or children;
(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 as defined in section 455.010 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. Custody and visitation rights shall be ordered in a manner that best protects the child and any other child or children for whom the parent has custodial or visitation rights, and the parent or other family or household member who is the victim of domestic violence from any further harm;
(7) The intention of either parent to relocate the principal residence of the child; and
(8) The unobstructed input of a child, free of coercion and manipulation, as to the child's custodial arrangement.
An appeals court will give significant emphasis on the trial judge’s ruling when determining a case on appeal. The court found that the husband was essentially a disinterested parent throughout the marriage and even after. For example, the mother would make the husband aware of school meetings for their special needs child, but the husband chose not to attend. Further, the husband gave the kids a cell phone to communicate with him but rarely called them. He also has never attended a parent-teacher conference for any of his children. Finally, the Guardian Ad Litem (an attorney appointed by the court to represent the children’s best interests), determined that the children had a tighter bond with the mother, and that the children needed the love and affection the mother had been providing for them.
The Men's Center for Domestic Resolution is a family law firm focused on represented men in divorce and child custody matters. The Men's Center is Kansas City's father's rights law firm.
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