Michael L. Mund, Respondent, v. Erica L. Mund, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Michael L. Mund, Respondent, v. Erica L. Mund, Appellant. Case Number: 74103 Handdown Date: 02/23/1999 Appeal From: Circuit Court of St. Francois County, Hon. James H. Kelly Counsel for Appellant: Ronald E. Pedigo and Phillip K. Gebhardt Counsel for Respondent: Wendy Wexler Horn Opinion Summary: Mother appeals custody provisions of dissolution decree. AFFIRMED. Division Five holds: 1) The court did not err in not entering written findings and conclusions noted in sections 452.375.2(5), 452.375.12 and 452.400.1. Evidence supported findings of no "domestic violence" or abuse which would trigger the statutory requirement to make findings of fact and conclusions of law. 2)The award of primary custody of the parties' minor child to Father was supported by substantial evidence and was not an abuse of discretion. 3)Alleged error of a Guardian Ad Litem in not offering evidence is not a reviewable trial court error. Citation: Opinion Author: Kent E. Karohl, Judge Opinion Vote: AFFIRMED. Crist, Sr., J., concurs. R. Dowd, C.J. dissents in separate opinion. Opinion: Mother, E.M., appeals the child custody provisions of a Decree of Dissolution of Marriage. The trial court awarded

Father, M.M., primary custody and control of S.M. age five. The court granted Mother temporary custody, alternating weekends and holidays. She lives in Kansas City, Missouri. Mother raises one point on appeal, which includes three points of error. She argues the trial court erred in awarding Father primary custody of S.M. in that (1) it failed to make findings of fact and conclusions of law required by sections 452.375.2(5) RSMo Cum. Supp. 1997(FN1), 452.375.12, and 452.400; (2) its decision to grant primary custody to Father was against the weight of the evidence and was an abuse of discretion; and, (3) the Guardian Ad Litem (GAL) failed to comply with section 452.423. We affirm. There is evidence to support finding the following facts. Mother and Father were married on August 6, 1993. S.M. was born in 1993. The parties separated in July 1995. In 1995, following a court order, which may have been entered in a Section 455.513 proceeding(FN2), Mother had custody and Father had temporary custody. When the period of the order expired, Mother denied Father temporary custody. She suspected he sexually abused S.M. Father filed his Petition for Dissolution of Marriage on April 15, 1996. He requested that he and Mother be awarded joint custody of S.M. Mother filed an Answer and Cross-Petition for Dissolution of Marriage on May 28, 1996. She did not allege abuse or violence by Father towards her or S.M. While the case was pending, Mother refused Father's visitation with S.M. He learned of her claims of sexual abuse in December 1996. Father did not see S.M. again until November 1997 after a court hearing. The court requested home studies for both Mother and Father. It appointed a GAL. Father filed an Amended Motion for Temporary Custody. The court granted Father supervised visits with S.M. Mother filed a Motion to Terminate Visitation and Temporary Custody. On March 2, 1998, the trial court entered the Decree of Dissolution of Marriage granting Father primary custody of S.M. Mother filed this appeal. The trial court's judgment and decree of dissolution must be upheld 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). The trial court has considerable discretion in making custody orders. In re Marriage of Campbell, 868 S.W.2d 148, 150 (Mo. App. S.D. 1993). We presume the trial court awarded custody in the child's best interest, as the trial court is in a superior position in judging the credibility of the witnesses, their character, sincerity, and other intangibles not completely revealed by the record. Sinopole v. Sinopole, 871 S.W.2d 46, 48 (Mo. App. E.D. 1993). The "trial court is free to believe or disbelieve all, part or none of the testimony of any witness." In re Marriage of Campbell, 868 S.W.2d at 150. Mother raises three points of error. First, she argues the court erred in failing to make specific findings of fact and conclusions of law that the child custody and visitation order best protects the child and the victim of domestic violence.

Mother relies on sections 452.375.2(5), .12 and 452.400. Section 452.375.2(5) provides, in part:

1. The court shall determine custody in accordance with the best interest of the child. The court shall

consider all relevant factors including: . . . . (5) 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. Custody and visitation rights shall be ordered in a manner that best protects the child and the parent or other family or household member who is the victim of domestic violence from any further harm. . . (emphasis added) Section 452.375.12 provides:

1. If the court finds that domestic violence has occurred, the court shall make specific findings of fact to

show that the custody or visitation arrangement order by the court best protects the child and the parent or other family or household member who is the victim of domestic violence from any further harm. (emphasis added) Section 452.400 provides, in part:

1. A parent not granted custody of the child is entitled to reasonable visitation rights unless the court

finds, after a hearing, that visitation would endanger the child's physical health or impair his emotional development. . . . In determining the granting of visitation rights, the court shall consider evidence of domestic violence. If the court finds that domestic violence has occurred, the court may find that granting visitation to the abusive party is in the best interest of the child. . . . The court shall consider the parent's history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault on other persons and shall grant visitation in a manner that best protects the child and the parent or other family or household member who is the victim of domestic violence from any further harm. The court shall make specific findings of fact to show that the visitation arrangements made by the court best protects the child or the parent or other family or household member who is the victim of domestic violence from any further harm. (emphasis added) Sections 452.375.12 and 452.400.1 are conditioned on a finding of domestic violence. In addition, Mother relies on Gant v. Gant, 892 S.W.2d 342, 345 (Mo. App. W.D. 1995). Where there is substantial evidence of domestic violence contained in the record, the trial court is required to indicate whether domestic violence occurred, and, if it finds domestic violence, then it must make specific findings as to why custody was given to the allegedly violent parent. Gant, 892 S.W.2d at 346. The issue of domestic violence was admitted in Gant. Here, it is disputed. Where the domestic violence was admitted, silence on the part of the trial court was not interpreted as a finding of no domestic violence. Id. The Western District of this court defined "domestic violence," for purposes of determining custody, as a pattern or a history of inflicting physical harm, bodily injury, or assault, or fear of the same, on other persons. Id. at 345; Hamilton v. Hamilton, 886 S.W.2d 711, 715 (Mo. App. W.D. 1994). If the record contains irrefuted evidence of domestic violence, then the court is required to make specific findings. Courtney v. Courtney, 959 S.W.2d 124, 125 (Mo. App. S.D. 1998); Kinder v. Kinder, 922 S.W.2d 398, 401 (Mo. App. W.D. 1996). "Without more, the trial court [is] not

required to enter written findings regarding domestic violence." Kinder, 922 S.W.2d at 401. Mother argues that the definition of domestic violence in section 455.200 RSMo 1994 of the Adult Abuse Act, and mentioned in Gant, controls.(FN3) In Gant, the court noted that the definition of domestic violence, for custody and dissolution purposes, is consistent with the definition in section 455.200(2) of the Adult Abuse Act. The evidence must support a finding of a pattern or history of inflicting physical harm, bodily injury, assault, or fear of the same. Mother testified regarding acts of domestic violence. Father admitted some physical altercations erupted between him and Mother. However, he testified that she started the fights and once, pointed a pistol at him. On one occasion he choked her out of self-defense. He denied hitting her with any objects. He admitted hitting [slapping] Mother four or five times during the marriage. His acts did no harm and caused no injury, nor was there evidence that she was in apprehension of imminent harmful or offensive contact. Thus, there is evidentiary support for a finding that these were not acts of domestic violence. There was no such evidence in Gant. The remand in Gant was proper because Mr. Gant's admissions of violence and injury offered no basis to find there was no domestic violence. This is the difference in this case and Gant. The trial court in this case could make a finding, which was not available in Gant, specifically, that there was no domestic violence. In that event, a remand is of no use. In further support of her claim that findings are mandatory, Mother argues there was evidence Father abused S.M. She testified that after S.M. visited Father, she started to make sexual comments which Mother thought to be inappropriate for a child of her age. She testified that S.M. made these comments in reference to Father. She also claimed she saw S.M. perform acts of sexual touching. She took S.M. to a psychologist for evaluation. The psychologist's deposition was admitted into evidence. She opined that Father has probably involved S.M. in a form of masturbation. She called DFS to report potential sexual abuse of S.M. DFS requested a SAFE exam of S.M. According to the psychologist, DFS concluded that child abuse had occurred, but they did not determine a perpetrator. Neither Mother nor the GAL introduced the results of the exam into evidence. There was evidence to support a finding Father did not abuse S.M. He denied ever sexually molesting S.M. He offered numerous witnesses on the issue. A police officer, who once responded to a call that a man was "roughing up" a young girl at the house of Father's mother, testified that when he arrived at the address, Father and S.M. were playing. He stated that S.M. was very happy and having a good time. It appeared to him that there was no problem. Other witnesses testified: S.M. was affectionate with Father; she appeared to be a happy little girl; she seemed to be delighted to see him whenever he picked her up for her visits; they never observed S.M. throwing any tantrums. Although mandatory findings were not required by section 452.375.12, the custody provisions were supported by

Father's evidence. The trial court resolved the disputed custody issue in favor of Father. Credibility on charges and denial of violence or abuse were for the trial court in deciding the disputed fact issues. In re Marriage of Sisk, 937 S.W.2d 727, 731 (Mo. App. S.D. 1996). The award of primary custody to Father suggests the court did not believe evidence offered to support Mother's claims. There was evidence to support finding no "domestic violence," or "abuse" which would trigger the requirement to make written findings of fact and conclusions of law required by sections 452.375.2(5), .12, and 452.400. The statutes require a finding of conduct related to causing injury or threats of force causing fear of imminent harm. In the absence of such findings the statutes do not mandate written findings. There was no apparent reason not to assist the parties and this court by making specific findings to support the custody award. However, on disputed evidence, the statutes did not mandate the findings. Further, Mother could have, but did not request findings in accord with Rule 73.01(a)(3). Point denied. Second, Mother argues the trial court erred in awarding primary custody to Father, as against the weight of the evidence and as an abuse of discretion. Where there is a conflict in evidence on issues of abuse and domestic violence, resolution hinges on credibility. In re Marriage of Sisk, 937 S.W.2d at 731. The trial court "is in a far better position to evaluate the credibility of witnesses than an appellate court and the resolution of conflicting evidence concerning the relative fitness of parents for custody is left to the trial court with deference to be accorded to its conclusions." Id. "Judicial discretion is abused when a trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Id. (quoting In re Marriage of V.A.E., 873 S.W.2d 262, 268 (Mo. App. S.D. 1993). In determining custody, section 452.375.2 requires the court to make its decision in accordance with the best interest of the child, considering all relevant factors. The statute specifically enumerates the following relevant factors to this case: (1) The wishes of the child's parents as to his custody; . . . . (3) The interaction and interrelationship of the child with his parent, his siblings, and any other person who may significantly affect the child's best interests; (4) The child's adjustment to his home, school, and community; The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. . . ; (5) The needs of the child for a continuing 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; . . . . (8) Which parent is more likely to allow the child frequent and meaningful contact with the other parent. There was evidence to support findings on the majority of these factors. Father requested primary custody. Witnesses testified as to S.M.'s interaction and relationship with Father and her paternal grandparents. In addition, there

was evidence that S.M. was happy with Father and his family and friends. There was evidence Mother: (1) was molested as a child; (2) had an unstable upbringing: and, (3) terminated S.M.'s visitation with Father on two occasions. The affirmative evidence in favor of Father's custody and the negative evidence on Mother's custody supports the conclusion the custody award was not against the weight of the evidence or an abuse of discretion. Point denied. Third, Mother argues the trial court erred in awarding primary custody to Father, in that the GAL failed to protect the best interests of the child and failed to comply with section 452.423. In order to make an appealable claim, the party must claim trial court error. Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978). Mother's claim of error in her point relied on does not satisfy that requirement. Error of the GAL , if it was, will not entitle Mother to a reversal. We cannot attribute the alleged inaction of the GAL to trial court error. Moreover, Mother could have, but did not, supply the evidence she wanted the GAL to offer. She argues that the GAL did not perform his statutory duties when he did not introduce the SAFE exam at the hearing and that the trial court erred in awarding primary custody to Father without this information. However, the question for appellate review must be stated in the point relied on, and this specification was not in the point. In re marriage of Miller, 939 S.W.2d 572, 573 (Mo. App. S.D. 1997). We are not required to determine issues stated in the argument portion of the brief. Id. However, if we gratuitously reviewed Mother's third subpoint it is without merit. Section 452.423 sets out the duties of the GAL, providing that the GAL shall: (1) Be the legal representative of the child at the hearing, and may examine, cross-examine, subpoena witnesses and offer testimony; (2) Prior to the hearing, conduct all necessary interviews with persons having contact with or knowledge of the child in order to ascertain the child's wishes, feelings, attachments and attitudes. If appropriate, the child should be interviewed; The GAL's role is more than "perfunctory and shadowy." In re marriage of Sisk, 937 S.W.2d at 733. It is the duty of the GAL "to collect testimony, summon witnesses and jealously guard the rights of the infants. . . ." Id. "The trial court is not bound by and may accept, modify or reject the guardian's recommendations as it deems appropriate." State ex rel. Bird v. Weinstock, 864 S.W.2d 376, 385 (Mo. App. E.D. 1993). In this case, there is evidence to support a finding the GAL actively participated in the custody proceeding. He interviewed S.M.; he fully participated at trial, questioned witnesses and called his own witness; and, participated in the deposition of the psychologist who concluded the SAFE exam does not suggest a finding Father is the perpetrator. In addition, Mother could have, but did not offer the test results. The statute authorizes, but does not require, the GAL to offer evidence. Point denied. We affirm. Footnotes:

FN1.All statutory citations are to RSMo Cum. Supp. 1997 unless otherwise indicated. FN2.The order is not in the legal file. We presume from Father's and Mother's testimony that a court entered the order on Mother's petition alleging abuse. After filing a petition, the court may issue an ex parte order of protection, which is effective until the hearing. Section 455.513 RSMo Cum. Supp. 1997. After a hearing for a full order of protection, the court may award custody of any minor child. Section 455.523.2(1) RSMo Cum. Supp. 1997. FN3.Section 455.200(2) RSMo 1994 defines "domestic violence" as "attempting to cause or causing bodily injury to a family or household member, or placing a family or household member by threat of force in fear of imminent physical harm." The statute reference in Gant was to RSMo 1986; however, the provisions in the 1986 and 1994 statutes are the same. Separate Opinion:

Opinion modified by Court's own motion on March 9, 1999. This substitution does not constitute a new

determination of whether domestic violence or a pattern of such violence occurred and, if so, for a re-determination of custody and visitation issues. Upon a finding of domestic violence or a pattern of domestic violence, the trial court should support its determination of custody and visitation by making specific findings of fact and conclusions of law explaining the rationale for its decision as required by Section 452.375, RSMo Cum. Supp. 1997, and the case of Gant v. Gant, 892 S.W.2d 342 (Mo. App. W.D. 1995). Section 452.375.2(5) provides, in part:

1. The court shall determine custody in accordance with the best interest of the child. The court shall

consider all relevant factors including: . . . . (5) The mental and physical health of all individuals involved, including any history of abuse of any individual 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. Custody and visitation rights shall be ordered in a manner that best protects the child and the parent or other family or household member who is the victim of domestic violence from any further harm. . .(emphasis added) Section 452.375.12 provides:

1. If the court finds that domestic violence has occurred, the court shall make specific findings of fact to

show that the custody or visitation arrangement ordered by the court best protects the child and the parent or other family or household member who is the victim of domestic violence from any further harm. (emphasis added) If the trial court finds "any domestic violence occurred, whether or not part of a pattern of domestic violence," then the trial court shall make specific findings of fact. Gant, 892 S.W.2d at 345; Section 452.375.12. Under Section 452.375.12, a

finding of domestic violence requires the entry of findings of fact as to the basis of the decision on custody and visitation regardless of who is given primary custody. Gant, 892 S.W.2d at 347; Carter v. Carter, 940 S.W.2d 12, 16 (Mo. App. W.D. 1997). Section 452.400 explains the meaning of the term "domestic violence." Section 452.400 provided, in part: 1.A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger the child's physical health or impair his emotional development. . . . In determining the granting of visitation rights, the court shall consider evidence of domestic violence. If the court finds that domestic violence has occurred, the court may find that granting visitation to the abusive party is in the best interest of the child. . . . The court shall consider the parent's history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault on other persons and shall grant visitation in a manner that best protects the child and the parent or other family or household member who is the victim of domestic violence from any further harm. The court shall make specific findings of fact to show that the visitation arrangements made by the court best protect the child or the parent or other family or household member who is the victim of domestic violence from any further harm. (emphasis added)

The issue, in light of the evidence, is whether the trial court was required to make a determination on the record as to whether domestic violence, or a pattern thereof, had occurred, and if so, to make findings of fact and conclusions of law explaining why its decision of custody and visitation was in the best interest of the child. At trial, Father testified to the volatile nature of his relationship with Mother. On cross- examination, Father admitted the following: Q.As a matter of fact, during the time that you were married to Erica, you hit--you struck her on several occasions; did you not? A.I've hit her probably four, maybe five times. Yes, sir.

Q.Hit her with your fist? A.No. Q.You never hit her with your fist? A.Not that I--I remember slapping her. I remember--I remember one time I was choking on her neck. I remember at one time I hit her on the--Yeah, I did. I hit her on the butt one time, the first time. Q.And you said you were choking her on her neck. A.Yes. Q.Are you talking about trying to strangle her? A.No. She had my hair for about a period of about 20 seconds, and it was hurting very badly. And-- Q.Had your hair? A.Yes. And I reached for hers and she was pulling away, and I grabbed onto her neck. And I told her, "I'll let go when you do." Q.Did you ever put bruises on her?

A.Probably on two occasions. Mother also testified to the violent nature of the relationship. Mother admitted to physical altercations. She testified to the following: Q.Are you--Do you deny that you yourself scratched at Michael's face and ripped at his clothing on numerous occasions? A.In self-defense, yes I did. Q.So you do--you do acknowledge that you did-- A.In self-defense, yes I did. Where there is substantial evidence of domestic violence contained in the record, the trial court is required to indicate whether domestic violence occurred; and if it finds a pattern of domestic violence, then it must make specific findings as to why custody was given to the abusive parent under Section 452.375.2(5); or if it finds any domestic violence has occurred, then it must make specific findings as to why custody or visitation best protects the child and the victim of domestic violence under Section 452.375.12. Gant, 892 S.W.2d at 346. If the record contains irrefuted evidence of domestic violence, then the court is required to make specific findings. Courtney v. Courtney, 959 S.W.2d 124, 125 (Mo. App. S.D. 1998); Kinder v. Kinder, 922 S.W.2d 398, 401 (Mo. App. W.D. 1996). Here, as in Gant, the issue of domestic violence was admitted by both parties. Father and Mother both admitted to the physical altercations. Father admitted to hitting or slapping Mother four or five times. Father testified he choked Mother on one occasion out of self-defense. Mother testified that Father beat and bruised her. Mother further testified she scratched and ripped at Father's clothing on numerous occasions out of self-defense. It is not disputed that there was domestic violence. The issue that is disputed in the record is which of the parties, Father or Mother, was the abuser and which was the victim. Where domestic violence is admitted, silence on the part of the trial court is not to be interpreted as a finding of no domestic violence. Id. Even if Mother's testimony were entirely discounted by the trial court, Father's testimony alone would require a finding that multiple incidents of domestic violence occurred while the parties lived together during the three-year marriage. Based on these facts, I would find that the trial court was required by Sections 452.375.2(5) and 452.375.12 to make a record determination as to whether domestic violence had occurred. Compliance with the requirements of subsections 452.375.2(5) and .12 is mandatory, not discretionary. Gant, 892 S.W.2d at 345. For these reasons, I would remand this case so that the trial court can enter a finding whether "domestic violence" occurred as that term is used in Section 452.375.12. A finding of domestic violence requires the entry of findings of fact

as to the basis of the decision on custody and visitation regardless who is given primary custody. The trial court should also determine whether a "pattern of domestic violence" occurred as that term is used in Section 452.375.2(5). If so, and should custody be awarded to the abusive parent, the trial court should enter specific findings of fact and conclusions of law as required by Section 452.375.2(5).

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.